DEPOSITED BY THE UNITED STATES OF AMERICA

JUL 19 '48

COURT-MARTIAL ORDER NO. 4-1948 APRIL 1948

Advancement in rank on retired list: special commendation for performance of duty in actual combat.

An opinion was requested of the Judge Advocate General as to whether an officer, Vice Admiral A, USN, Ret., was eligible to be advanced to the rank of Admiral on the retired list by virtue of having been specially commended for performance of duty in actual combat. It appeared from the records of the Navy Department that Vice Admiral A held the permanent grade of rear admiral, with date of rank of 1 July 1940, and that he was serving in that grade and with that rank when he was retired on 1 September 1946. The officer was not given a temporary appointment to higher rank pursuant to the provisions of the Act of July 24, 1941, as amended. He was, however, designated to serve and served as Commander Service Force, U. S. Atlantic Fleet, from 22 August 1942 to 11 October 1944 with the rank of vice admiral pursuant to the provisions of Section 18 of the Act of May 22, 1917 (40 Stat. 89; 34 U. S. C. 212).

It appeared also that Vice Admiral A was retired as a rear admiral on 1 September 1946 by reason of physical disability incurred in that rank and that thereafter the chronology of events relating to his status on the retired list is as follows:

(a) On 17 September 1946 the Secretary of the Navy determined that the then Rear Admiral A had "served satisfactorily under a temporary appointment in the rank of vice admiral" and held that when placed on the retired list he was "advanced to the rank of vice admiral and with retired pay based on such higher rank in accordance with the provisions of U. S. Code, Title 34, Section 350i."

(b) On 14 April 1947 the Acting Secretary of the Navy determined that a prior award to the then Rear Admiral A constituted a special commendation by the Secretary of the Navy for performance of duty in actual combat within the meaning of Section 12 (1) of the Act of June 23, 1938 (52 Stat. 949; 34 U. S. C. 404 (1)).

Subsequent to Vice Admiral A's retirement, Section 12 (1) of the Act of June 23, 1938, supra, was repealed by Section 436 of the Officer

Personnel Act of 1947 approved August 7, 1947, and superseded by Section 412 (a) of that Act (61 Stat. 874; 34 U. S. C. 410n) which provides in part as follows:

"All officers of the Navy, Marine Corps, and the Reserve components thereof, who have been specially commended for their performance of duty in actual combat by the head of the executive department under whose jurisdiction such duty was performed, when retired * shall, upon retirement, be placed upon the retired list with the rank of the next higher grade than that in which serving at the time of retirement and with three-fourths of the active-duty pay of the grade in which serving at the time of retirement and the grade in which serving at the time of retirement shall be construed to mean the highest grade in which so serving whether by virtue of permanent or temporary appointment therein: ***: Provided further, That officers of the classes described in this subsection who have been retired prior to the date of approval of this act shall be entitled to the benefits of this subsection from the date of the approval of this act:

Section 1 of the Act of June 16, 1942 (56 Stat. 370; 34 U. S. C. 398b) was also repealed by Section 436 of the Officer Personnel Act of 1947 and superseded by Section 414 of that Act (61 Stat. 876; 34 U. S. C. 4100) which provides in part as follows:

"Any officer of the Navy who may be retired while serving in accordance with the provisions of Section 413 of this Act, or subsequent to such service, may, in the discretion of the President, by and with the advice and consent of the Senate, when retired, be placed on the retired list with the highest grade or rank held by him while on the active list: Provided, That no increase in retired pay shall accrue solely as the result of such advancement in rank on the retired list: Provided further, That the President, by and with the advice of the Senate, may in his discretion extend the privilege herein granted to such officers heretofore or hereafter retired, who served in the rank of admiral or rear admiral pursuant to the authority of section 18 of the Act of May 22, 1917 (40 Stat. 89), or the Act of July 17, 1941 (55 Stat. 598)."

Section 10 (b) (2) of the Act of July 24, 1941 (55 Stat. 605), as amended by Section 8 (a) of the Act of February 21, 1946 (60 Stat. 28; 34 U. S. C. 350i (b) (2)), provides as follows:

"(2) Personnel of the active list of the Regular Navy and Marine Corps and personnel of the Fleet Reserve and Fleet Marine Corps Reserve appointed or advanced under the authority of this Act shall, when subsequently retired, if not otherwise entitled to the same or higher grade and rank or retired pay, be advanced to the highest grade and rank in which, as determined by the Secretary of the Navy, they served satisfactorily under temporary ap

pointments, and shall receive retired pay computed at the rate prescribed by law and applicable in each individual case but based upon such higher rank."

An analytical comparison of the provisions of Section 12 (1) of the Act of June 23, 1938, supra, with the provisions of Section 412 (a) of the Officer Personnel Act of 1947, and a like comparison of the provisions of Section 1 of the Act of June 16, 1942, supra, with the provisions of Section 414 of the Officer Personnel Act of 1947, discloses that they apply with equal force to the case of Vice Admiral A and that his rights upon retirement are the same under the superseding provisions of the Officer Personnel Act of 1947, as they would have been under the provisions of the acts which they superseded. Inasmuch as the advancement on the retired list authorized by the Act of July 24, 1941, paragraph 6, supra, is restricted to personnel appointed or advanced under the authority of that act, and since it appears that Vice Admiral A was not given a temporary appointment or advancement under said act, the action taken on 17 September 1946 advancing him on the retired list to the rank of vice admiral pursuant to its provisions was without statutory authority. In legal contemplation, therefore, and for the purpose of the instant question, the attempted advancement pursuant to the action of 17 September 1946 did not accomplish the purpose intended.

At the time of his retirement the officer had a right to be placed on the retired list with the rank of the next higher grade by reason of his special commendation and the provisions of Section 12 (1) of the Act of June 23, 1938, later superseded by the provisions of Section 412 (a) of the Officer Personnel Act of 1947, supra. The rank of the next higher grade within the meaning of Section 412 (a) of said Act was the rank of the next higher grade to that in which such officer would regularly have been placed on the retired list (C. M. O. 4, 1946, 153). The right to advancement because of commendation was not determined until 14 April 1947, but it was retroactive to the date of retirement since the actual commendation was issued prior to the date retirement became effective.

At the time of his retirement the officer was also eligible to be placed on the retired list with the highest rank held by him on the active list by reason of his service as Commander Service Force Atlantic Fleet, and the provisions of Section 1 of the Act of June 16, 1942, later superseded by Section 414 of the Officer Personnel Act of 1947, supra, in the discretion of the President, by and with the advice and consent of the Senate. On 21 May 1947 the recommendation of the President that he be placed on the retired list with the rank of Vice Admiral was approved by the Senate. Since the pertinent law provided that such action was to become effective "when retired" it must be considered that the rank of Vice Admiral became effective on the date of retirement. The question was thus presented as to whether the advancement author