B-53570, JUNE 14, 1946, 25 COMP. GEN. 870

B-53570, JUNE 14, 1946, 25 COMP. GEN. 870

PAY - RETIRED - TEMPORARILY PROMOTED ASSISTANT CHIEF OF ENGINEERS UNDER SECTION 4C OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, PROVIDING THAT AN ARMY OFFICER WITH FOUR YEARS' SERVICE AS ASSISTANT CHIEF OF BRANCH WHO MAY SUBSEQUENTLY BE RETIRED SHALL BE RETIRED WITH THE RANK, PAY AND ALLOWANCES OF THE "HIGHEST GRADE" HELD BY HIM AS ASSISTANT CHIEF, AN OFFICER SERVING AS ASSISTANT CHIEF OF ENGINEERS WITH THE RANK OF BRIGADIER GENERAL AS SPECIFICALLY PROVIDED FOR SUCH OFFICE BY SECTION 11 OF SAID ACT WHEN APPOINTED TO A HIGHER TEMPORARY WARTIME RANK IS NOT ENTITLED, UPON RETIREMENT, TO THE RETIRED PAY OF SUCH HIGHER WARTIME RANK, BUT ONLY TO THE RETIRED PAY OF A BRIGADIER GENERAL, THE RANK AUTHORIZED FOR THAT PARTICULAR OFFICE.

ASSISTANT COMPTROLLER YATES TO THE SECRETARY OF WAR, JUNE 14, 1946:

THRE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 27, 1945, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO THE PROPER RETIRED GRADE OF MAJOR GENERAL THOMAS M. ROBINS. GENERAL ROBINS (THEN COLONEL, CE) WAS APPOINTED ASSISTANT CHIEF OF ENGINEERS ON SEPTEMBER 1, 1939, FOR A FOUR YEAR TERM, WITH THE RANK OF BRIGADIER GENERAL, UNDER SECTION 11 OF THE NATIONAL DEFENSE ACT, AS AMENDED (10 U.S.C. 181, 181A). WHILE SERVING IN THAT OFFICE HE WAS APPOINTED A TEMPORARY MAJOR GENERAL, ARMY OF THE UNITED STATES. ON AUGUST 31, 1943, HE WAS RELIEVED AS ASSISTANT CHIEF OF ENGINEERS. ON MARCH 14, 1945, HE REACHED THE STATUTORY RETIREMENT AGE OF 64, AND ON MARCH 31, 1945 WAS RETIRED, THE ORDERS READING AS FOLLOWS:

"BY DIRECTION OF THE PRESIDENT, THE RETIREMENT OF MAJOR GENERAL THOMAS M. ROBINS ( COLONEL--- CORPS OF ENGINEERS), 10-1890, UNITED STATES ARMY, FROM ACTIVE SERVICE IN THE GRADE OF BRIGADIER GENERAL ON 31 MARCH 1945, UNDER THE REQUIREMENTS OF THE ACT OF CONGRESS APPROVED 30 JUNE 1882 AND UNDER THE PROVISIONS OF SECTION 4C OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACTS OF CONGRESS APPROVED 4JUNE 1920 AND 14 OCTOBER 1940 IS ANNOUNCED. WILL ATTAIN THE AGE OF SIXTY-FOUR YEARS ON 14 MARCH 1945.

"2. MAJOR GENERAL ROBINS WILL CONTINUE, DURING THE PLEASURE OF THE PRESIDENT, ON ACTIVE DUTY WITHOUT INTERRUPTION IN HIS CAPACITY AND OFFICE AS A TEMPORARY MAJOR GENERAL IN THE ARMY OF THE UNITED STATES.'

GENERAL ROBINS, IN ACCORDANCE WITH PARAGRAPH 2 OF THE QUOTED ORDERS, HAS CONTINUED ON ACTIVE DUTY AS A TEMPORARY MAJOR GENERAL.

SUBSECTION 4C OF THE NATIONAL DEFENSE ACT, AS ADDED BY SECTION 4, ACT OF JUNE 4, 1920 (41 STAT. 762), AS AMENDED (10 U.S.C. 1026), IS THE PERTINENT RETIREMENT STATUTE IN GENERAL ROBINS' CASE. THIS SUBSECTION PROVIDED (AS OF THE DATE OF GENERAL ROBINS' RETIREMENT) IN PERTINENT PART AS FOLLOWS:

"ANY OFFICER WHO SHALL HAVE SERVED FOUR YEARS AS CHIEF OR ASSISTANT CHIEF OF A BRANCH OR AS COMMANDING GENERAL OF THE GENERAL HEADQUARTERS AIR FORCE (OR WHO SHALL HAVE SERVED TWO YEARS AS WING COMMANDER OF THE AIR CORPS) AND WHO MAY SUBSEQUENTLY BE RETIRED, SHALL BE RETIRED WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE HELD BY HIM AS SUCH CHIEF, ASSISTANT CHIEF, (OR) COMMANDING GENERAL (OR WING COMMANDER).' (THE WORDS IN BRACKETS WERE DELETED BY THE ACT OF JUNE 29, 1945 ( PUBLIC LAW 92, 79TH CONG.); THE WORD IN PARENTHESES WAS ADDED BY THE SAME ACT.)

THE SPECIFIC QUESTION PRESENTED IS WHETHER SUBSECTION 4C OF THE NATIONAL DEFENSE ACT, SUPRA, IS PROPERLY TO BE INTERPRETED TO MEAN THAT AN OFFICER WHO HAS SERVED FOUR YEARS AS AN ASSISTANT CHIEF OF BRANCH WITH THE RANK OF BRIGADIER GENERAL AND WHO, WHILE SO SERVING, WAS APPOINTED A TEMPORARY MAJOR GENERAL, ARMY OF THE UNITED STATES, SHALL BE RETIRED WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE GRADE OF BRIGADIER GENERAL, OR WITH THE RANK, PAY, AND ALLOWANCES SO AUTHORIZED FOR THE GRADE OF MAJOR GENERAL. IN THIS CONNECTION, THE WAR DEPARTMENT IS CONTEMPLATING THE PROMULGATION OF AMENDED ORDERS RECITING THE RETIREMENT OF GENERAL ROBINS WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE GRADE/OF MAJOR GENERAL.

YOUR DECISION IS REQUESTED UPON THE QUESTION WHETHER EXPENDITURE OF PUBLIC FUNDS IN ACCORDANCE WITH THE FOREGOING CONTEMPLATED ACTION WOULD MEET WITH YOUR APPROVAL.

IN ADDITION TO SUBSECTION 4C OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 1026, QUOTED IN YOUR LETTER, SECTION 11 OF THE SAID ACT, 39 STAT. 173, AS AMENDED, 10 U.S.C. 181, PROVIDES AS FOLLOWS:

THE CORPS OF ENGINEERS SHALL CONSIST OF ONE CHIEF OF ENGINEERS WITH THE RANK OF MAJOR GENERAL, ONE ASSISTANT WITH THE RANK OF BRIGADIER GENERAL, SEVEN HUNDRED AND NINETY-FIVE OFFICERS IN GRADES FROM COLONEL TO SECOND LIEUTENANT, INCLUSIVE, AND TWELVE THOUSAND ENLISTED MEN, SUCH PART OF WHOM AS THE PRESIDENT MAY DIRECT BEING FORMED INTO TACTICAL UNITS ORGANIZED AS HE MAY PRESCRIBE. SECTION 2 OF THE ACT OF JUNE 5, 1942, 56 STAT. 314, 59 U.S.C. 762, TEMPORARILY SUSPENDED THE PROVISIONS OF THE SAID ACT LIMITING THE STRENGTH OF ANY BRANCH OF THE ARMY.

SECTION 127A OF THE NATIONAL DEFENSE ACT, 41 STAT. 785, AS AMENDED, 10 U.S.C. 513, PROVIDES AS FOLLOWS:

IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT ANY OFFICER OF THE REGULAR ARMY MAY BE APPOINTED TO HIGHER TEMPORARY GRADE WITHOUT VACATING HIS PERMANENT APPOINTMENT. IN TIME OF WAR ANY OFFICER OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADE, AND ALL OTHER PERSONS APPOINTED, AS OFFICERS, SHALL BE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE, AND GENERAL OFFICERS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE * * *.

THAT SECTION CONTEMPLATES THAT OFFICERS OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADES IN THE ARMY OF THE UNITED STATES WILL RETAIN THEIR PERMANENT STATUS IN THE REGULAR ARMY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES AND THAT THEY WILL REVERT TO SUCH PERMANENT STATUS UPON TERMINATION OF THEIR TEMPORARY APPOINTMENT, UNLESS OTHERWISE EXPRESSLY AUTHORIZED BY LAW. IN THE PRESENT CASE, THE ORDERS OF MARCH 31, 1945, ANNOUNCED THE OFFICER'S RETIREMENT IN THE GRADE OF BRIGADIER GENERAL, BUT IT APPEARS THAT THE WAR DEPARTMENT NOW CONTEMPLATES THE ISSUANCE OF AMENDED ORDERS RECITING THE OFFICER'S RETIREMENT IN THE TEMPORARY GRADE OF MAJOR GENERAL, AND THE PAYMENT OF THE RETIRED PAY OF SUCH TEMPORARY GRADE, APPARENTLY ON THE BASIS THAT THE GENERAL LANGUAGE APPEARING IN SUBSECTION 4C OF THE NATIONAL DEFENSE ACT, AS AMENDED, AUTHORIZING THE RETIREMENT OF ANY OFFICER WHO HAS SERVED FOUR YEARS AS CHIEF OR ASSISTANT CHIEF OF A BRANCH OR COMMANDING GENERAL OF THE GENERAL HEADQUARTERS AIR FORCE WITH THE "RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE HIGHEST GRADE HELD BY HIM AS SUCH CHIEF, ASSISTANT CHIEF, OR COMMANDING GENERAL," PROPERLY MAY BE REGARDED AS AUTHORIZING THE OFFICER'S RETIREMENT IN A HIGHER TEMPORARY GRADE TO WHICH HE WAS APPOINTED UNDER THE SAID SECTION 127A WHILE SERVING AS ASSISTANT CHIEF OF ENGINEERS.

SECTION 11 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUPRA, SPECIFICALLY PROVIDES THAT THE ASSISTANT CHIEF OF ENGINEERS SHALL HAVE THE RANK OF BRIGADIER GENERAL, AND SECTION 4C OF THE NATIONAL DEFENSE ACT, AS AMENDED, AUTHORIZES THE SUBSEQUENT RETIREMENT OF AN OFFICER WHO HAS SERVED FOUR YEARS AS ASSISTANT CHIEF OF ENGINEERS, EVEN THOUGH HE MAY HAVE REVERTED TO A LOWER GRADE UPON EXPIRATION OF HIS FOUR-YEAR TERM OF OFFICE, IN THE RANK "AUTHORIZED BY LAW" FOR THE HIGHEST GRADE HELD BY HIM "AS SUCH * * * ASSISTANT CHIEF," THAT IS, THE RANK OF BRIGADIER GENERAL SPECIFICALLY AUTHORIZED BY LAW FOR SUCH OFFICE. WHILE SECTION 127A AS AMENDED, AUTHORIZES THE WARTIME APPOINTMENT OF ANY OFFICER OF THE REGULAR ARMY TO A HIGHER TEMPORARY GRADE, IT DOES NOT AUTHORIZE ANY HIGHER GRADE FOR THE OFFICE OF ASSISTANT CHIEF OF ENGINEERS THAN THAT SPECIFIED IN THE SAID SECTION 11. ON SUCH BASIS, IT MUST BE CONSIDERED THAT GENERAL ROBBINS' TEMPORARY APPOINTMENT AS A MAJOR GENERAL WAS BY VIRTUE OF BEING AN OFFICER OF THE REGULAR ARMY WITHIN THE GENERAL PROVISIONS OF SECTION 127A AND NOT BY VIRTUE OF HOLDING THE OFFICE OF ASSISTANT CHIEF OF ENGINEERS UNDER SECTION 11 OF THE NATIONAL DEFENSE ACT, AND, PRESUMABLY, THE RETIREMENT ORDER OF MARCH 31, 1945, WAS ISSUED ON THE BASIS OF THAT UNDERSTANDING OF THE STATUTES. CF. OP. J.A.G. APRIL 17, 1946.

ALTHOUGH SECTION 4C OF THE NATIONAL DEFENSE ACT, AS AMENDED, WAS FURTHER AMENDED BY THE ACT OF MAY 12, 1939, 53 STAT. 740, BY INSERTING BEFORE THE WORD "GRADE" THE WORD "HIGHEST" SO AS TO MAKE THE SAID SECTION PROVIDE FOR THE RETIREMENT OF THE CHIEF OR ASSISTANT CHIEF OF A BRANCH OR THE COMMANDING GENERAL OF THE GENERAL HEADQUARTERS AIR FORCE WITH THE RANK, PAY, AND ALLOWANCES AUTHORIZED BY LAW FOR THE "HIGHEST GRADE" HELD BY HIM AS SUCH CHIEF, ASSISTANT CHIEF, OR COMMANDING GENERAL, THE LEGISLATIVE HISTORY OF THE SAID AMENDMENT SHOWS THAT THE PURPOSE OF SUCH CHANGE IN LANGUAGE WAS TO AUTHORIZE THE RETIREMENT OF THE COMMANDING GENERAL OF THE GENERAL HEADQUARTERS AIR FORCE, WITH THE TEMPORARY RANK SPECIFICALLY AUTHORIZED FOR THAT OFFICE BY SECTION 5 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1525, THAT IS, THE TEMPORARY RANK OF MAJOR GENERAL. SEE REPORT NO. 255, COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 4087, WHICH BECAME THE SAID ACT OF MAY 12, 1939. NEITHER SECTION 4C OF THE NATIONAL DEFENSE ACT, NOR THE AMENDMENTS THERETO, DISCLOSE A LEGISLATIVE INTENT THAT PERSONS HOLDING THE OFFICE OF CHIEF OR ASSISTANT CHIEF OF A BRANCH SHOULD BE RETIRED WITH THE RANK, PAY, AND ALLOWANCES OF HIGHER TEMPORARY GRADES TO WHICH THEY MIGHT BE APPOINTED PURSUANT TO STATUTES AUTHORIZING SUCH APPOINTMENT GENERALLY FOR ARMY OFFICERS IN TIME OF WAR OR NATIONAL EMERGENCY. IN THAT CONNECTION, IT WILL BE NOTED THAT WHEN THE CONGRESS HAS SEEN FIT TO GRANT CERTAIN CLASSES OF OFFICERS THE RIGHT TO HAVE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF HIGHER TEMPORARY GRADES OR RANK IT HAS MADE SPECIFIC PROVISION TO THAT EFFECT. FOR EXAMPLE, SEE SECTION 9 OF THE ACT OF MAY 22, 1917, 40 STAT. 86, AND THE ACT OF JULY 1, 1918, 40 STAT. 733, AUTHORIZING THE RETIREMENT OF OTHERS OF THE NAVY, MARINE CORPS, AND COAST GUARD FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY WHILE HOLDING APPOINTMENTS TO HIGHER TEMPORARY GRADES, WITH THE RETIRED PAY AUTHORIZED FOR SUCH HIGHER GRADES ( MCALLISTER V. UNITED STATES, 68 C. CLS. 90); SECTION 6 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, PROVIDING THAT ANY OFFICER OF THE REGULAR ARMY BELOW THE GRADE OF VICE ADMIRAL WHO IS TRANSFERRED TO THE RETIRED LIST UPON ATTAINING THE AGE OF 64 YEARS WHILE SERVING UNDER A TEMPORARY APPOINTMENT PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, SHALL BE RETIRED IN SUCH HIGHER TEMPORARY GRADE OR RANK WITH THE RETIRED PAY OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT; SECTION 8A OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, AUTHORIZING PERSONNEL ON THE ACTIVE LIST OF THE NAVY, MARINE CORPS, AND COAST GUARD WHO INCUR PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK TO BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH ENTITLED WHILE SERVING IN SUCH HIGHER RANK (25 COMP. GEN. 274); AND SECTION 8 (A) OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, 60 STAT. 28, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, SO AS TO PROVIDE THAT PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY, MARINE CORPS, ETC., APPOINTED OR ADVANCED UNDER AUTHORITY, SHALL BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER TEMPORARY RANK.

IN ADDITION TO THE FOREGOING STATUTES RELATING TO PERSONNEL OF THE NAVY, MARINE CORPS, AND COAST GUARD, THE CONGRESS, BY THE ACT OF JUNE 29, 1943, 57 STAT. 249, SPECIFICALLY PROVIDED FOR THE RETIREMENT IN HIGHER TEMPORARY GRADES OF ARMY OFFICERS RETIRED FOR PHYSICAL DISABILITY DETERMINED OR ACCRUED WHILE SERVING IN HIGHER TEMPORARY GRADES. SECTION 2 OF THE SAID ACT PROVIDES THAT ANY OFFICER OF THE REGULAR ARMY WHO THERETOFORE OR THEREAFTER HAD BEEN OR MAY BE RETIRED FOR PHYSICAL DISABILITY DETERMINED OR INCURRED WHILE SERVING UNDER AN APPOINTMENT TO A HIGHER TEMPORARY GRADE SHALL HAVE THE RANK AND RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE. THE STATED PURPOSE OF THE SAID ACT, INTER ALIA, WAS TO PERMIT OFFICERS OF THE REGULAR ARMY THERETOFORE OR THEREAFTER RETIRED FOR PHYSICAL DISABILITY TO BE RETIRED IN THEIR HIGHER TEMPORARY GRADES AND WITH THE PAY INCIDENT THERETO. THE LEGISLATIVE HISTORY OF THE SAID ACT DISCLOSES THAT OFFICERS OF THE REGULAR ARMY WHO SUFFERED PHYSICAL DISABILITY IN LINE OF DUTY DURING THE FIRST WORLD WAR, WHILE SERVING IN HIGHER TEMPORARY GRADES UNDER SECTION 127A OF THE NATIONAL DEFENSE ACT, WERE RETIRED IN THEIR PERMANENT GRADES WITH THE RETIRED PAY OF SUCH GRADES, AND THAT PRIOR TO THE SAID 1943 STATUTE THE SAME SITUATION EXISTED WITH RESPECT TO OFFICERS OF THE REGULAR ARMY WHO INCURRED PHYSICAL DISABILITY WHILE SERVING UNDER TEMPORARY APPOINTMENT TO HIGHER GRADES DURING THE PRESENT WAR. THUS, THE STATUTE WAS ENACTED SO THAT OFFICERS OF THE REGULAR ARMY WHO SUFFERED PHYSICAL DISABILITY WHILE SERVING IN HIGHER TEMPORARY GRADES MIGHT BE AFFORDED THE SAME RETIREMENT BENEFITS AUTHORIZED UNDER THE 1917 AND 1941 STATUTES FOR PERSONNEL OF THE NAVY, MARINE CORPS, AND COAST GUARD, WHO SUFFERED PHYSICAL DISABILITY INCIDENT TO SERVICE WHILE SERVING UNDER APPOINTMENTS TO HIGHER TEMPORARY GRADES--- THAT IS, THE RIGHT TO HAVE THEIR RETIRED PAY BASED ON THE ACTIVE DUTY PAY OF THEIR HIGHER TEMPORARY GRADES. INASMUCH AS SECTION 4C OF THE NATIONAL DEFENSE ACT, AS AMENDED, READ IN CONJUNCTION WITH SECTION 11 OF THE SAME ACT, CLEARLY RELATES TO THE HIGHER GRADES SPECIFICALLY AUTHORIZED BY THE LATTER SECTION FOR THE OFFICES OF CHIEF AND ASSISTANT CHIEF OF ENGINEERS, AND SINCE THE LEGISLATIVE HISTORY OF SECTION 4C DISCLOSES NO LEGISLATIVE PURPOSE TO GRANT THE CLASS OF OFFICERS MENTIONED THEREIN THE FURTHER SPECIAL PRIVILEGE, NOT GRANTED GENERALLY TO OTHER OFFICERS, OF HAVING THEIR RETIRED PAY BASED UPON HIGHER GRADES TO WHICH TEMPORARILY APPOINTED IN TIME OF WAR, THE CONSISTENT LEGISLATIVE PRACTICE IN THE MATTER HAVING BEEN TO PROVIDE EXPRESSLY FOR RETIREMENT IN SUCH HIGHER TEMPORARY GRADES WHEN IT IS NOT INTENDED THAT OFFICERS BE RETIRED IN THEIR PERMANENT GRADES, OR GRADES AUTHORIZED BY LAW FOR PARTICULAR OFFICES, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT GENERAL ROBINS IS ENTITLED TO THE RETIRED PAY OF A MAJOR GENERAL. IT FOLLOWS THAT THE QUESTION SUBMITTED MUST BE ANSWERED IN THE NEGATIVE.