B-3616, AUGUST 28, 1939, 19 COMP. GEN. 293

B-3616, AUGUST 28, 1939, 19 COMP. GEN. 293

STATUTORY CONSTRUCTION - GENERAL AND SPECIFIC PROVISIONS; PAY - RETIRED COAST GUARD COMMANDANT GENERAL AND SPECIAL PROVISIONS IN A STATUTE SHOULD STAND TOGETHER IF POSSIBLE, BUT WHERE THE TERMS OR EXPRESSIONS IN ONE PART OF A STATUTE ARE INCONSISTENT WITH MORE SPECIFIC OR PARTICULAR PROVISIONS IN ANOTHER PART, THE PARTICULAR PROVISION MUST GOVERN UNLESS THE STATUTE AS A WHOLE CLEARLY SHOWS A CONTRARY INTENTION, AND THEY MUST BE GIVEN EFFECT NOTWITHSTANDING THE GENERAL PROVISION IS BROAD ENOUGH TO INCLUDE THE SUBJECT TO WHICH THE PARTICULAR PROVISIONS RELATE. A COAST GUARD OFFICER RETIRED AFTER MORE THAN 40 YEARS' SERVICE WITH THE RANK OF COMMANDANT, AT WHICH TIME WHILE SO SERVING HE HELD THE RANK OF REAR ADMIRAL AND WAS IN RECEIPT OF PAY OF A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY, IS ENTITLED AS PROVIDED IN SECTION 2 OF THE ACT OF JANUARY 12, 1923, AS AMENDED, TO RETIRED PAY COMPUTED ON THAT OF A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY ON THE RETIRED LIST, AND THE PROVISIONS OF SECTION 3 OF THE SAID ACT, 42 STAT. 1131, ARE NOT APPLICABLE, AS CONTENDED, SO AS TO AUTHORIZE RETIRED PAY IN EXCESS OF THAT SO PROVIDED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, AUGUST 28, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 2, 1939, IN WHICH DECISION IS REQUESTED AS TO THE CORRECT RATE OF RETIRED PAY OF REAR ADMIRAL WILLIAM E. REYNOLDS, UNITED STATES COAST GUARD, RETIRED. THERE WAS ALSO RECEIVED AND CONSIDERED IN CONNECTION WITH YOUR SUBMISSION A MEMORANDUM OR BRIEF PRESENTED AUGUST 7, 1939, BY THE ATTORNEY FOR REAR ADMIRAL REYNOLDS, IN SUPPORT OF THE POSITION TAKEN BY HIS CLIENT IN WHICH IT IS CONTENDED THAT HE IS ENTITLED TO THE BENEFITS OF THE PROVISION CONTAINED IN THE SECOND PROVISO OF SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131.

THE REGISTER OF COMMISSIONED OFFICERS OF THE UNITED STATES COAST GUARD, 1938, SHOWS THAT WILLIAM EDWARD REYNOLDS WAS BORN JANUARY 11, 1860, AND WAS RETIRED JANUARY 11, 1924, BY REASON OF HAVING REACHED THE AGE OF 64 YEARS UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF APRIL 12, 1902, 32 STAT. 100, MADE APPLICABLE TO THE COAST GUARD BY SECTION 3 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 801, 802. THE DATE OF THE OFFICER'S ORIGINAL APPOINTMENT IS NOT STATED BUT IT IS REPORTED THAT HE HAD COMPLETED MORE THAN 40 YEARS' SERVICE WHEN RETIRED WITH THE RANK OF COMMANDANT, UNITED STATES COAST GUARD, AT WHICH TIME WHILE SO SERVING HE HELD THE RANK OF REAR ADMIRAL AND WAS IN RECEIPT OF PAY OF A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY. IT APPEARS TO BE THE CONTENTION OF THE OFFICER THAT HAVING COMPLETED MORE THAN 40 YEARS' SERVICE, THE PROVISIONS OF SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, ARE APPLICABLE SO AS APPARENTLY TO CONFER ON HIM THE RANK OF REAR ADMIRAL AND NOT THE RANK PROVIDED BY THE STATUTE, I. E., COMMANDANT, AND TO ADVANCE HIS RANK ON THE RETIRED LIST TO THAT OF VICE ADMIRAL OR IF NOT TO VICE ADMIRAL TO REAR ADMIRAL, UPPER HALF, WITH THE RETIRED PAY PROVIDED FOR THAT "RANK.'

SECTION 9 OF THE ACT OF APRIL 12, 1902, 32 STAT. 101, PROVIDED:

THAT ALL OFFICERS BORNE UPON THE RETIRED OR PERMANENT WAITING-ORDERS LIST AT THE DATE OF THE PASSAGE OF THIS ACT, OR HEREAFTER, SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, SALARY, AND INCREASE OF THE RANK UPON WHICH THEY HAVE BEEN OR MAY BE RETIRED: PROVIDED, THAT NO LONGEVITY INCREASE OF PAY SHALL BE ALLOWED FOR ANY LENGTH OF SERVICE ACCRUING AFTER RETIREMENT.

BY SECTION 1 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, TITLE 14, U.S. CODE, SECTION 10, THERE WAS AUTHORIZED FOR THE COAST GUARD ONE COMMANDANT, PREVIOUSLY DESIGNATED AS CAPTAIN COMMANDANT BY THE ACT OF JANUARY 28, 1915, 38 STAT. 801, 802. SECTION 2 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, TITLE 14, U.S. CODE, SECTION 11, AUTHORIZED THE PRESIDENT TO APPOINT IN THE COAST GUARD, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ONE COMMANDANT FOR A PERIOD OF 4 YEARS WHO MAY BE REAPPOINTED FOR FURTHER PERIODS OF 4 YEARS, TO BE SELECTED FROM THE ACTIVE LIST OF LINE OFFICERS NOT BELOW THE GRADE OF COMMANDER, WHO SHALL HAVE, WHILE SERVING AS COMMANDANT, THE RANK, PAY, AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY. THIS SECTION 2 PROVIDED FURTHER THAT AN OFFICER WHOSE TERM OF SERVICE AS COMMANDANT HAS EXPIRED MAY BE APPOINTED A CAPTAIN AND SHALL BE IN ADDITIONAL NUMBER IN THAT GRADE, BUT IF NOT SO APPOINTED SHALL TAKE THE PLACE ON THE LINEAL LIST IN THE GRADE THAT HE WOULD HAVE ATTAINED HAD HE NOT SERVED AS COMMANDANT AND BE AN ADDITIONAL NUMBER IN SUCH GRADE.

SECTION 2 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, PROVIDED FURTHER AS FOLLOWS:

* * * THAT ANY OFFICER WHO SHALL HEREAFTER SERVE AS COMMANDANT SHALL, WHEN RETIRED, BE RETIRED WITH THE RANK OF COMMANDANT AND WITH THE PAY OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY ON THE RETIRED LIST. * * *

SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131, REFERRED TO ABOVE, AND UPON WHICH THE OFFICER APPARENTLY RELIES AS A BASIS FOR CLAIMING RETIRED PAY COMPUTED UPON A RANK ABOVE THAT OF REAR ADMIRAL (WITH PAY OF THE LOWER HALF), IS WORDED AS FOLLOWS:

THAT HEREAFTER NO COMMISSIONED OFFICER OF THE COAST GUARD SHALL BE PROMOTED TO A HIGHER GRADE OR RANK ON THE ACTIVE LIST, EXCEPT TO COMMANDANT OR TO ENGINEER IN CHIEF, UNTIL HIS MENTAL, MORAL, AND PROFESSIONAL FITNESS TO PERFORM ALL THE DUTIES OF SUCH HIGHER GRADE OR RANK HAVE BEEN ESTABLISHED TO THE SATISFACTION OF A BOARD OF EXAMINING OFFICERS APPOINTED BY THE PRESIDENT, AND UNTIL HE HAS BEEN EXAMINED BY A BOARD OF MEDICAL OFFICERS AND PRONOUNCED PHYSICALLY QUALIFIED TO PERFORM ALL THE DUTIES OF SUCH HIGHER GRADE OR RANK: PROVIDED, THAT IF ANY COMMISSIONED OFFICER SHALL FAIL IN HIS PHYSICAL EXAMINATION FOR PROMOTION AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN THE LINE OF DUTY, HE SHALL BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED: PROVIDED FURTHER, THAT HEREAFTER WHEN A COMMISSIONED OFFICER OF THE COAST GUARD WHO HAS HAD FORTY YEARS' SERVICE SHALL RETIRE, HE SHALL BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT; AND, IN THE CASE OF A CAPTAIN, THE RANK AND RETIRED PAY OF ONE GRADE ABOVE SHALL BE THE RANK OF COMMODORE AND THE PAY OF A COMMODORE IN THE NAVY ON THE RETIRED LIST.

THE PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY AUTHORIZED BY SECTION 2 OF THE ACT OF JANUARY 12, 1923, FOR OFFICERS OF THE COAST GUARD NOT BELOW THE GRADE OF COMMANDER, AFTER APPOINTMENT AND DURING THEIR INCUMBENCY AS COMMANDANT, ARE NECESSARILY OF A TEMPORARY NATURE MADE SPECIFICALLY APPLICABLE TO SUCH OFFICERS, AND THE PROVISION FOR THEIR RETIREMENT WHILE COMMANDANT WITH THE RANK OF COMMANDANT AND WITH PAY OF A REAR ADMIRAL (LOWER HALF) ON THE RETIRED LIST IS LIKEWISE A SPECIAL PROVISION FOR THEIR EXCLUSIVE BENEFIT. THE SPECIFIC PROVISION CONTAINED IN SECTION 2 OF THE ACT OF JANUARY 12, 1923, FOR RETIREMENT OF OFFICERS OF THE COAST GUARD SERVING AS COMMANDANT IS SEPARATE AND DISTINCT FROM THE GENERAL PROVISION OF SECTION 3 FOR OFFICERS AFTER COMPLETION OF 40 YEARS' SERVICE. IT IS TO BE NOTED THE STATUTE CONFERS A SPECIFIC RANK IN WHICH THE OFFICER IS TO BE RETIRED; IT DOES NOT PROVIDE FOR HIS RETIREMENT AS A REAR ADMIRAL, LOWER HALF; IT DIRECTS THAT HE BE RETIRED WITH THE RANK OF COMMANDANT.

IT IS A WELL SETTLED RULE OF STATUTORY CONSTRUCTION THAT WHERE A SPECIFIC PROVISION IS MADE FOR A PARTICULAR OBJECT OR PURPOSE, A GENERAL PROVISION WHICH, BUT FOR THE SPECIAL PROVISION, MIGHT HAVE BEEN APPLICABLE IS NOT APPLICABLE TO THE OBJECT AND PURPOSE SPECIFICALLY PROVIDED FOR. 1 COMP. GEN. 372 AND CASES CITED THEREIN. GENERAL AND SPECIAL PROVISO IN A STATUTE SHOULD STAND TOGETHER IF POSSIBLE, BUT WHERE THE TERMS EXPRESSIONS IN ONE PART OF A STATUTE ARE INCONSISTENT WITH MORE SPECIFIC OR PARTICULAR PROVISIONS IN ANOTHER PART, THE PARTICULAR PROVISION MUST GOVERN AND CONTROL UNLESS THE STATUTE AS A WHOLE CLEARLY SHOWS A CONTRARY INTENTION, AND THEY MUST BE GIVEN EFFECT NOTWITHSTANDING THE GENERA PROVISION IS BROAD ENOUGH TO INCLUDE THE SUBJECT TO WHICH THE PARTICULAR PROVISIONS RELATE. 59 C.J., PAGES 1000, 1001; RODGERS V. UNITED STATES 185 U.S. 83, 46 L.ED. 816.

THE RODGERS CASE, SUPRA, IS PARTICULARLY APPLICABLE BY ANALOGY TO THE FACTS AND LAW IN THE PRESENT CASE. RODGERS, A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY, BROUGHT SUIT TO RECOVER ADDITIONAL PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY, LESS CERTAIN DEDUCTIONS, FROM JULY 1, 1899, UNDER SECTIONS 7 AND 13 OF THE NAVAL PERSONNEL ACT OF MARCH 3, 1899, 30 STAT. 1005, 1007. SECTION 7 PROVIDED, INTER ALIA, THAT THE ACTIVE LIST OF THE LINE OF THE NAVY AS CONSTITUTED BY SECTION 1 OF THE ACT SHOULD BE COMPOSED OF 18 REAR ADMIRALS; THAT EACH REAR ADMIRAL EMBRACED IN THE 9 LOWER NUMBERS SHOULD RECEIVE THE SAME PAY AND ALLOWANCES AS WERE ALLOWED A BRIGADIER GENERAL OF THE ARMY. SECTION 13 PROVIDED, IN EFFECT, AMONG OTHER THINGS, THAT AFTER JUNE 30, 1899, COMMISSIONED OFFICERS OF THE LINE OF THE NAVY SHOULD RECEIVE THE SAME PAY AND ALLOWANCES AS THOSE PROVIDED FOR OFFICERS OF THE CORRESPONDING RANK IN THE ARMY. UNDER SECTION 1466 OF THE REVISED STATUTES, IT WAS PROVIDED THAT REAR ADMIRALS OF THE NAVY SHOULD HAVE RELATIVE RANK WITH MAJOR GENERALS OF THE ARMY AND THAT COMMODORES OF THE NAVY SHOULD RANK WITH BRIGADIER GENERALS OF THE ARMY. BY THE ACT OF MARCH 3, 1999, THE RANK OF COMMODORE ON THE ACTIVE LIST OF THE NAVY WAS ABOLISHED. THE CLAIMANT, RODGERS, CONTENDED THAT UNDER SECTION 13, AFTER JUNE 30, 1899, ALL REAR ADMIRALS OF THE NAVY BECAME ENTITLED TO THE PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY, LESS CERTAIN ALLOWANCES AS THEREIN PROVIDED.

IN AFFIRMING THE DECISION OF THE FORMER COMPTROLLER OF THE TREASURY, 5 COMP. DEC 750, AND THE COURT OF CLAIMS, 36 CT. CLS. 266, BOTH OF WHICH DENIED THE CONTENTIONS MADE BY THE CLAIMANT, THE SUPREME COURT, SPEAKING BY MR. JUSTICE BREWER, AFTER STATING THE APPLICABLE STATUTORY RULE OF CONSTRUCTION HEREINBEFORE REFERRED TO, SUPPORTED BY TEXT WRITERS AND DECISIONS, SAID, PAGE 88, 185 U.S.:

IN THE LIGHT OF THIS CANON, HOW SHOULD THESE TWO SECTIONS BE CONSTRUED? SECTION 7 IN EFFECT ABOLISHES THE RANK OF COMMODORE, AT LEAST SO FAR AS RESPECTS THE ACTIVE LIST OF THE LINE OF THE NAVY, AND LIFTS THOSE IN THAT RANK TO THAT OF REAR ADMIRAL. THE ATTENTION OF CONGRESS WAS THUS DIRECTED TO SUCH CHANGE AND THE PROPER ACCOMPANYING PROVISIONS IN RESPECT TO SALARY AND OTHERWISE, AND IT DECLARED THAT THE LOWER NINE REAR ADMIRALS, THEY WHO WERE BY THE SECTION LIFTED TO THAT RANK, SHOULD RECEIVE A PARTICULAR SALARY. CLEARLY THAT WAS A SPECIAL PROVISION IN RESPECT TO A MATTER TO WHICH THE ATTENTION OF CONGRESS WAS AT THE TIME DIRECTED. IF ANOTHER STATUTE HAD BEEN PASSED AT A SUBSEQUENT OR ON THE SAME DAY MAKING GENERAL PROVISION FOR THE SALARIES OF NAVAL OFFICERS, CLEARLY THE CANON TO WHICH WE HAVE REFERRED WOULD APPLY. A FORTIORI, WHEN THE SUBSEQUENT GENERAL PROVISION IS IN THE SAME STATUTE IT SHOULD BE HELD APPLICABLE. SO, WHEN IN SEC. 13, CONGRESS PRESCRIBED A GENERAL RULE FOR THE SALARIES OF NAVAL OFFICERS, SUCH GENERAL RULE CANNOT WITHIN THE SCOPE OF THIS CANON BE UNDERSTOOD AS REPEALING THE SPECIAL PROVISION IN THE PRIOR SECTION, BUT THE SPECIAL PROVISION MUST BE TAKEN AS AN EXCEPTION TO AND LIMITATION OF THE GENERAL RULE.

A BRIEF HISTORY OF THE PERTINENT LEGISLATION AFFECTING THE FORMER REVENUE CUTTER SERVICE AND THE COAST GUARD UP TO THE PRESENT TIME SHOWS CONCLUSIVELY THAT THE CONGRESS SINCE 1908 HAS CONSIDERED THE OFFICE OF COMMANDANT AND THE PAY AND ALLOWANCES ATTACHING THERETO, INCLUDING RETIRED PAY, SEPARATE FROM THAT OF THE OTHER COMMISSIONED OFFICERS OF THOSE SERVICES.

THE ACT OF APRIL 12, 1902, 32 STAT. 100, ENTITLED AN ACT TO PROMOTE THE EFFICIENCY OF THE REVENUE CUTTER SERVICE, PROVIDED THAT ON AND AFTER ITS PASSAGE THE COMMISSIONED OFFICERS OF THE REVENUE CUTTER SERVICE SHALL CONSIST OF CAPTAINS, FIRST LIEUTENANTS, SECOND LIEUTENANTS, THIRD LIEUTENANTS, CAPTAINS OF ENGINEERS, CHIEF ENGINEERS, FIRST ASSISTANT ENGINEERS, SECOND ASSISTANT ENGINEERS, AND CONSTRUCTORS, THE ENGINEER OFFICER PERSONNEL TO HAVE RANK AS PROVIDED IN SECTION 1. SECTION 2 OF THE ACT OF APRIL 12, 1902, ID., PROVIDED THAT THE COMMISSIONED OFFICERS SHALL HAVE RANK AS FOLLOWS: CAPTAINS WITH MAJORS IN THE ARMY AND LIEUTENANT COMMANDERS IN THE NAVY; FIRST LIEUTENANTS WITH CAPTAINS IN THE ARMY AND LIEUTENANTS IN THE NAVY; SECOND LIEUTENANTS WITH FIRST LIEUTENANTS IN THE ARMY AND LIEUTENANTS (JUNIOR GRADE) IN THE NAVY AND THIRD LIEUTENANTS WITH SECOND LIEUTENANTS IN THE ARMY AND ENSIGNS IN THE NAVY.

IT WAS PROVIDED ON AND AFTER PASSAGE OF THE ACT OF APRIL 16, 1908, 35 STAT. 61, THAT THE PRESIDENT WAS AUTHORIZED, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO APPOINT IN THE REVENUE CUTTER SERVICE ONE CAPTAIN COMMANDANT FOR A PERIOD OF 4 YEARS WHO SHOULD ACT AS CHIEF OF DIVISION OF REVENUE CUTTER SERVICE WITH RANK OF A COLONEL IN THE ARMY AND A CAPTAIN IN THE NAVY. THIS ACT ALSO PROVIDED FOR ONE ENGINEER IN CHIEF WITH RANK OF LIEUTENANT COLONEL IN THE ARMY AND COMMANDER IN THE NAVY. GENERAL PROVISIONS WERE ALSO MADE IN THIS ACT FOR ALL THE OTHER COMMISSIONED OFFICERS IN THE REVENUE CUTTER SERVICE WITH SPECIAL PROVISION FOR THE RETIRED PAY OF THE CAPTAIN COMMANDANT AND OF THE ENGINEER IN CHIEF. EXCEPT AS PROVIDED IN SECTION 5 OF THE ACT OF APRIL 16, 1908, 35 STAT. 62, RETIREMENT OF THE COMMISSIONED OFFICERS GENERALLY APPEARS TO HAVE BEEN CONTROLLED BY THE LAWS ENACTED PRIOR THERETO. THUS, THERE WERE INITIALLY ESTABLISHED SEPARATE PROVISIONS FOR RETIREMENT AND RETIREMENT PAY OF THE CAPTAIN COMMANDANT AND THE ENGINEER IN CHIEF.

THE RANK, PAY, AND ALLOWANCES OF THE OFFICER SERVING AS COMMANDANT IN THE UNITED STATES COAST GUARD, INCLUDING HIS RANK AND PAY ON THE RETIRED LIST UNDER THE ACT OF JANUARY 12, 1923, ARE FOUND EXCLUSIVELY WITHIN SECTION 2 OF THAT ACT. SECTION 2 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 801, PROVIDED: THAT IN THE COAST GUARD THERE SHALL BE A CAPTAIN COMMANDANT, SENIOR CAPTAINS, CAPTAINS, FIRST LIEUTENANTS, SECOND LIEUTENANTS, THIRD LIEUTENANTS, ENGINEER IN CHIEF, CAPTAINS OF ENGINEERS, FIRST LIEUTENANTS OF ENGINEERS, SECOND LIEUTENANTS OF ENGINEERS, THIRD LIEUTENANTS OF ENGINEERS AND CONSTRUCTORS, CADET AND CADET ENGINEERS, * * *

BY THE ACT OF JUNE 5, 1920, 41 STAT. 879, IT WAS PROVIDED AS FOLLOWS:

TITLES OF COMMISSIONED OFFICERS OF THE COAST GUARD ARE HEREBY CHANGED AS FOLLOWS: SENIOR CAPTAIN TO COMMANDER, CAPTAIN TO LIEUTENANT COMMANDER, FIRST LIEUTENANT TO LIEUTENANT, SECOND LIEUTENANT TO LIEUTENANT, JUNIOR GRADE, THIRD LIEUTENANT TO ENSIGN, CAPTAIN OF ENGINEERS TO LIEUTENANT COMMANDER (ENGINEERING), FIRST LIEUTENANT OF ENGINEERS TO LIEUTENANT (ENGINEERING), SECOND LIEUTENANT OF ENGINEERS TO LIEUTENANT, JUNIOR GRADE (ENGINEERING), AND THIRD LIEUTENANT OF ENGINEERS TO ENSIGN (ENGINEERING): PROVIDED, THAT ALL LAWS APPLICABLE TO THE TITLES HEREBY ABOLISHED IN THE COAST GUARD SHALL APPLY TO THE TITLES HEREBY ESTABLISHED;

IT WILL BE NOTED THAT THE ACT OF JUNE 5, 1920, DID NOT CHANGE OR AFFECT THE RANK PROVIDED IN THE ACT OF JANUARY 28, 1915, FOR EITHER THE CAPTAIN COMMANDANT OR THE ENGINEER IN CHIEF. THEIR RANKS AND TITLES WERE AFFECTED BY SECTION 2 OF THE ACT OF JANUARY 12, 1923, WHICH CHANGED THE TITLE AND RANK OF COMMANDANT WITH PAY AND ALLOWANCES ON THE ACTIVE AND RETIRED LISTS AS THEREIN EXCLUSIVELY PROVIDED. SECTION 1 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1130, SPECIFICALLY AUTHORIZED THE GRADES AND DISTRIBUTIONS FROM ONE COMMANDANT DOWN THROUGH THE GRADE OF ENSIGN. PROMOTIONS TO THE GRADES "CREATED BY THIS ACT," NAMELY, CAPTAIN, CAPTAIN (ENGINEERING), AND COMMANDER (ENGINEERING), WERE AUTHORIZED BY SECTION 1 TO BE FROM THE NEXT LOWER GRADES BY SENIORITY. THE COMMISSIONED OFFICERS REFERRED TO IN SECTION 3 WERE ALL COMMISSIONED OFFICERS OF THE COAST GUARD EXCLUSIVE OF THE COMMANDANT, AND DID NOT CONTEMPLATE OFFICERS ABOVE THE GRADE OF CAPTAIN. THE RANK OF COMMODORE ON THE ACTIVE LIST IN THE NAVY HAD BEEN ABOLISHED BY THE NAVAL PERSONNEL ACT OF 1899 (REFERRED TO IN THE RODGERS DECISION AND WITH THIS IN MIND THE CONGRESS PROVIDED THAT THE COMMANDANT SHOULD HAVE THE RANK, PAY, AND ALLOWANCE A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY, A GRADE WHICH NO OTHER OFFICER OF THE COAST GUARD COULD ATTAIN ON THE ACTIVE LIST UNDER THE ACT OF JANUARY 12, 1923, AND WHICH NO OFFICER COULD HAVE ON THE RETIRED LIST, THE COMMANDANT BEING RETIRED "WITH THE RANK OF COMMANDANT AND WITH THE PAY OF A REAR ADMIRAL (LOWER HALF) OF THE NAVY ON THE RETIRED LIST.' IT WAS RECOGNIZED BY SECTION 3 THAT BUT COMPARATIVELY FEW OFFICERS OF THE SERVICE WOULD OR COULD ATTAIN THE TITLE AND GRADE OF COMMANDANT; THE HIGHEST RANK THEY COULD ATTAIN (EXCLUDING ENGINEER IN CHIEF PROVIDED FOR IN SECTION 2) WAS THAT OF CAPTAIN AND AS TO THESE HIGH RANKING OFFICERS, SECTION 3 PROVIDED IN EXPRESS TERMS THAT A CAPTAIN RETIRED AFTER 40 YEARS' SERVICE SHOULD BE RETIRED WITH THE RANK AND RETIRED PAY OF COMMODORE.

IN THIS CONNECTION ATTENTION IS ALSO INVITED TO THE EXPLANATION AND PURPOSE OF HOUSE RESOLUTION 10531, SIXTY-SEVENTH CONGRESS, WHICH BECAME THE ACT OF JANUARY 12, 1923, OFFERED BY HON. SAMUEL E. WINSLOW, MANAGER OF THE BILL AND CHAIRMAN OF THE COMMITTEE HAVING CHARGE THEREOF, AS REPORTED IN THE CONGRESSIONAL RECORD OF DECEMBER 6, 1922, AT PAGES 149, 150:

MR. BUTLER. WILL THE GENTLEMAN STATE WHAT THE ABILITIES OF THESE MEN AMOUNT TO? WILL THE GENTLEMAN STATE THEIR EXPERIENCE AND HOW THEY HAVE SERVED ALONG WITH THE NAVY, AND SPEAK OF THEIR GREAT ABILITY AS NAVIGATORS? THESE MEN ON THE SEA WHO HAVE PILOTED THESE LITTLE SHIPS AROUND FROM PLACE TO PLACE HAVE BECOME THE EQUAL OF A NUMBER OF GREAT NAVIGATORS OF THE UNITED STATES NAVY.

MR. WINSLOW. WITHOUT ANY DESIRE TO CAST ASPERSION UPON ANY OTHER BRANCH OF THE SERVICE--- AND THERE IS NO NEED FOR DOING ANY SUCH THING- - I THINK WE CAN SAFELY STAND BY THIS LITTLE COAST GUARD SERVICE WITH THE ASSURANCE THAT THEY HAVE NO SUPERIORS ON THE PAY ROLL OF THE UNITED STATES IN ANY DEPARTMENT, ENGINEERING OR OTHERWISE.

MR. BUTLER. AND HERETOFORE THEY HAVE HAD ONE HIGH GRADE, THAT OF COMMODORE, ONLY.

MR. WINSLOW. COMMANDANT.

MR. BUTLER. CAPTAIN COMMANDANT.

MR. WINSLOW. THAT WILL BE CHANGED UNDER THIS BILL TO COMMANDANT, TAKING OUT THE "CAPTAIN.'

MR. BUTLER. HE WILL GET THE PAY AND ALLOWANCE OF A COMMODORE OF THE NAVY, WHICH IS THAT OF A REAR ADMIRAL OF THE LOWER GRADES; IS THAT RIGHT?

MR. LITTLE. AND THE COMMANDANT WILL HAVE THE RANK OF A REAR ADMIRAL?

MR. WINSLOW. YES.

MR. LITTLE. AND THE COMMODORE BUSINESS DOES NOT ENTER INTO IT---

MR. WINSLOW. ONLY ON RETIREMENT.

MR. LITTLE. I THINK I UNDERSTAND IT NOW. YOU ARE RETIRING THE CAPTAIN--

MR. WINSLOW. THE CAPTAIN WILL RETIRE AS A COMMODORE.

MR. LITTLE. I AM LOST AGAIN. IS THERE A CAPTAIN GOING TO RETIRE AS A COMMODORE UNDER THIS BILL?

MR. WINSLOW. WELL, IT WOULD SEEM SO, AND IF THE CAPTAIN RETIRES HE RETIRES AS A COMMODORE.

MR. LITTLE. IS THAT THE PROVISION OF THE BILL?

MR. WINSLOW. THAT IS THE ONLY WAY TO PROVIDE FOR A CAPTAIN TO BE RETIRED AS OF THE NEXT UPPER GRADE.

MR. LITTLE. YOU DO NOT RETIRE HIM AS A REAR ADMIRAL OF THE LOWER GRADE?

MR. WINSLOW. YOU WILL NOT HAVE A REAR ADMIRAL EXCEPT THE COMMANDANT.

IT IS THUS SHOWN THAT SINCE THE ACT OF APRIL 16, 1908, THROUGHOUT THE LEGISLATION AFFECTING THE COMMISSIONED OFFICER PERSONNEL OF THE COAST GUARD AND FORMER REVENUE CUTTER SERVICE, THE RANK, PAY, AND ALLOWANCES OF COMMANDANT WERE CONSIDERED AND TREATED SEPARATELY, DISTINCTLY, AND SPECIFICALLY FROM THAT OF ANY OTHER COMMISSIONED OFFICER AND THERE IS NO IMPLICATION OR SUGGESTION THAT IN THE ACT OF JANUARY 12, 1923, THE COMMANDANT WAS TO BE CONSIDERED UNDER THE GENERAL PROVISIONS OF SECTION 3 APPLICABLE TO THE OTHER COMMISSIONED OFFICERS AND COULD NOT WELL BE AS HE WAS TO BE RETIRED WITH THE RANK OF COMMANDANT.

IF ANY FURTHER DOUBT EXISTED THAT SUCH CUMULATIVE RIGHTS AS CONTENDED FOR WERE NEVER INTENDED OR CONTEMPLATED, SUCH DOUBT APPEARS TO HAVE BEEN EFFECTIVELY REMOVED BY THE PROVISIONS OF THE ACT OF JUNE 9, 1937, 50 STAT. 252, WHICH PROVIDES, IN PART, AS FOLLOWS:

* * * THAT ANY OFFICER WHO HAS SERVED OR SHALL HEREAFTER SERVE AS COMMANDANT, IF HERETOFORE OR HEREAFTER RETIRED, WHETHER BEFORE OR AT ANY TIME AFTER THE TERMINATION OF HIS SERVICE AS COMMANDANT, SHALL, IF RECEIVING THE PAY OF A REAR ADMIRAL (UPPER HALF) AT THE TERMINATION OF HIS SERVICE AS COMMANDANT, BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF A REAR ADMIRAL (UPPER HALF) OR, IF RECEIVING THE PAY OF A REAR ADMIRAL (LOWER HALF) AT THE TERMINATION OF HIS SERVICE AS COMMANDANT, SHALL BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF A REAR ADMIRAL (LOWER HALF), AND THAT ANY OFFICER WHOSE TERM OF SERVICE AS COMMANDANT HAS EXPIRED MAY BE APPOINTED A CAPTAIN AND SHALL BE AN ADDITIONAL NUMBER IN THAT GRADE, BUT IF NOT SO APPOINTED, HE SHALL TAKE THE PLACE ON THE LINEAL LIST IN THE GRADE THAT HE WOULD HAVE OBTAINED HAD HE NOT SERVED AS COMMANDANT AND BE AN ADDITIONAL NUMBER IN SUCH GRADE.,

THIS ACT GIVES THE RANK OF REAR ADMIRAL (LOWER HALF) TO THE CLAIMANT LONG AFTER HIS RETIREMENT.

THE CONGRESS HAS UNDOUBTED POWER TO FIX THE PAY OF COMMISSIONED OFFICERS OF THE ACTIVE LIST OF THE COAST GUARD, AND, ALSO, TO PROVIDE THE RATES OF THEIR RETIREMENT PAY. WHILE ONE OF THE PURPOSES OF THE ACT OF JUNE 9, 1937, WAS TO BESTOW UPON OFFICERS OF THE COAST GUARD WHO HAD SERVED AS COMMANDANT, THE RANK AND RETIRED PAY BASED UPON THE PAY RECEIVED BY THEM WHILE SERVING AS COMMANDANT, EVEN THOUGH THEIR RETIREMENT WAS EFFECTED SUBSEQUENT TO THE TERMINATION OF THEIR SERVICE AS COMMANDANT, THE ACT ALSO DEFINITELY AND SPECIFICALLY PROVIDED THAT AN OFFICER "WHO HAS SERVED OR SHALL HEREAFTER SERVE AS COMMANDANT, IF HERETOFORE OR HEREAFTER RETIRED * * * SHALL * * * IF RECEIVING THE PAY OF A REAR ADMIRAL (LOWER HALF) * * * BE PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF A REAR ADMIRAL (LOWER HALF) * * *.' SEE WOOD V. UNITED STATES, 107 U.S. 414. THIS LANGUAGE WITH ITS SPECIFIC REFERENCE AND APPLICATION TO THE RETIREMENT OF COMMANDANTS LEAVES NO ROOM FOR DOUBT THAT SUCH OFFICERS UPON RETIREMENT WOULD NOT GAIN ADDITIONAL BENEFITS BY REASON OF THE 40-YEAR PROVISION CONTAINED IN SECTION 3 OF THE ACT OF JANUARY 12, 1923, AS AMENDED.

YOUR QUESTION IS ANSWERED BY SAYING THAT REAR ADMIRAL WILLIAM E. REYNOLDS, UNITED STATES COAST GUARD, RETIRED, IS NOT LEGALLY ENTITLED TO RETIRED PAY COMPUTED ON A RANK ABOVE THAT OF A REAR ADMIRAL OF THE LOWER HALF OF THE NAVY ON THE RETIRED LIST.