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Teutenants. Although every effort is being made to attract qualified applicants, both scientific and administrative, I am convinced that the legislative discrimination of our present law is in no small degree responsible for the trend toward lack of interest in an MSC Regular Army career. Men who possess the educational, scientific, or technical qualifications desired in the Medical Service Corps should be accorded the same opportunities for advancement during their career of military service as are accorded all other male officers in the Regular Army.

It should also be noted that prior to enactment of the Air Force Organization Act of 1951, there was a Medical Service Corps in the Air Force. That corps was established in the Air Force along with other corps of the medical service, e. g., medical, dental, and veterinary, in 1949, when the Secretary of Defense approved a separate medical service for the Air Force. At that time, all provisions of the Army-Navy Medical Services Corps Act of 1947 were deemed equally applicable to the Medical Service Corps, USAF, including of course the 2-percent limitation on the number of colonels authorized therein. Several hundred officers originally appointed in the Medical Service Corps of the Regular Army were thereupon voluntarily transferred to the Medical Service Corps of the Air Force.

Enactment of the Air Force Organization Act of 1951, however, abolished the “corps" concept in the Air Force. Further, the provisions of the Air Force Organization Act of 1951 are such that, among other things, the 2-percent limitation on colonels applicable to the Medical Service Corps, was removed. Thus, the officers assigned to medical service duties were made eligible for promotion to all grades on precisely the same basis as all other officers of the Regular Air Force.

I wish to emphasize that increasing the number of Regular Army Medical Service Corps colonels from 2 to 8 percent will not result in any faster promotion of these officers than in the past. These vacancies would not be filled in the immediate future, but filled gradually over the next few years.

The passage of this bill would increase the number of colonel spaces authorized for the Regular Army by 58.

The number and pay of colonels authorized for the active-duty Army is annually geared to language of the appropriation act. Until such time as the active-duty Army is reduced to the Regular Army structure-not envisioned in the foreseeable future—no implications of increased spaces or pay as a result of passage of this bill will occur.

In conclusion, I submit that the enactment of this bill would mean only that MSC officers, upon reaching that point in their military career wherein they possess such minimum number of years of service, and other qualifications as may be prescribed by the Secretary of the Army as a prerequisite for consideration for promotion, can be accorded equality of opportunity with their fellow officers on the other promotion lists. This bill would enhance the attractiveness of service in the Medical Service Corps to those high-type persons that are required in the corps.

And, lastly, this bill would cause no increase in the number of colonels in the Army, and would therefore represent no increased cost to the Government.

Mr. DARDEN. One point that I think should be mentioned for the purpose of clarity in the record is that approval of this bill will not at the present time increase the number of colonels on duty on an armywide basis. At such time as the Army shrank to its peacetime strength it would increase the number of colonels over what is presently authorized.

The Davis amendment, as modified, now provides the Army can have as many as 5,199 colonels on active duty, of which number under existing law 2,227 can be permanent colonels.

If this bill were authorized, it is possible for the Army to have 57 more permanent colonels, so the larger figure of 5,199 would remain unchanged, but the lower one would move up to 2,284.

Senator DUFF. Any questions?
Senator SYMINGTON. No, sir.
Senator DUFF. All right.

H. R. 5416

Mr. DARDEN. This, Mr. Chairman, brings us to H. R. 5416, on page 17 of the committee print.

(H. R. 5416 is as follows:)

[H. R. 5416, 83d Cong., 1st sess. ]

AN ACT To authorize the advancement of certain lieutenants on the retired list of the

Navy Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any other provision of law, Lieutenant Harold Edgar Peifer, United States Navy (retired), Lieutenant Jim Tom Acree, United States Navy (retired), Lieutenant Harold Coldwell, United States Navy (retired), Lieutenant Thomas Tingey Craven, United States Navy (retired), and Lieutenant Charles Samuel Boarman, United States Navy (retired), shall be advanced to the grade of lieutenant commander on the retired list effective for all purposes from the date of retirement in each case.

Passed the House of Representatives July 27, 1953.
Attest:

LYLE O. SNADER, Clerk. Mr. DARDEN. This is a departmental bill recommended by the Department of the Navy and has passed the House of Representatives. Its purpose is to promote five lieutenants of the Navy to the grade of lieutenant commander on the retired list, the effective date to be the date on which they were retired in each case.

The bill arises in this way. A provision of law in effect in 1942 and which has since been repealed provides that lieutenants who served prior to November 12, 1918, and who shall have completed not less than 21 years of service shall, on retirement, be advanced to the grade of lieutenant commander on the retired list. The Navy Department construed the words “who served prior to November 12, 1918” to include midshipman service and the Comptroller General excepted to this finding and said that there was no authority for that midshipman service to be declared as a service prior to November 1918. Subsequently, the Department of the Navy recommended legislation to validate the promotions, notwithstanding the Comptroller General's ruling.

While the bill was pending before this committee, the Navy Department erroneously advised the committee that only one officer was affected, whereupon the committee amended it from a general bill which would have taken care of all of these officers in the instant bill to a private one which was enacted.

The consequence of this action is that 1 officer, who is in exactly the same status as the 5 who are the subject of this bill, has secured relief while these other five are in the same circumstance.

Senator DUFF. The representation was made by the Navy that only one was affected erroneously?

Mr. DARDEN. That is correct, sir.

Senator DUFF. Had not that statement been made, these would have been included in the bill that affected the one that was passed?

Mr. DARDEN. I think it is fair to infer that that would have happened. The cost of this bill is

Senator DUFF. $20,000.

Mr. DARDEN. The up-to-date cost on that, that was a year ago, was about $23,000, Mr. Chairman. The retroactive feature would be 23.

Senator DÚFF. Any questions?

Senator SYMINGTON. I have no questions, Mr. Chairman.

Mr. DARDEN. Mr. Chairman, the Retired Officers Association strongly support this bill and has asked that a statement in support of it be inserted in the record in order to conserve the committee's time.

(The statement referred to is as follows:)

STATEMENT BY THE RETIRED OFFICERS ASSOCIATION ON H. R. 5416

I am Rear Adm. Allen P. Mullinnix, USN, retired, legislative counsel of the Retired Officers Association. I appear here today to present a short statement in support of H. R. 5416, a bill to promote certain lieutenants to lieutenant commander on the retired list. The president of the association, Lt. Gen. Willard S. Paul would have presented this statement if he had been able to be present.

The Retired Officers Association has for a long time been aware of and interested in the situation which this bill seeks to correct, and we appreciate the opportunity to appear here this morning in support of it.

This legislation has long been necessary.

Section 12 (k) of the act of June 23, 1938, provided, in part, that lieutenants who served prior to November 12, 1918, who shall have completed not less than 21 years of service, shall, upon retirement, be advanced to the grade of lieutenant commander on the retired list with the retired pay of that rank.

Its purpose was clearly to provide this advancement on the retired list to a group of officers which would have included those named in this bill. Many officers were so advanced upon retirement and have since received the retired pay of lieutenant commander.

These five officers were advanced in rank when they were retired in accordance with the provisions of section 12 (k), but subsequently the Comptroller General held they had been illegally so advanced since their only service prior to November 12, 1918, was as midshipmen serving at the Naval Academy. However, all these five officers remained on active duty after their retirement and served as lieutenant commanders on the active list.

A general bill, S. 1797, was introduced in the 80th Congress to provide equal benefits for those who remained on the active list. Because of an understanding in the Senate committee that Lt. J. T. McDermott was the only one whom the legislation could affect, the bill was changed to a private bill for the relief of McDermott, and as such was enacted, promoting him from lieutenant to lieutenant commander on the retired list.

Thereafter it was discovered that five others were in exactly the same position and should have been included. This bill would merely correct the error.

In view of these facts, the Retired Officers Association strongly recommends prompt enactment of this legislation.

Senator DUFF. I do not think it is necessary to take any testimony in favor of this unless there is some testimony to be offered in opposition to it.

Mr. DARDEN. Commander Edward White Rawlins has requested an opportunity to appear.

Senator DUFF. I see no purpose in his arguing in favor of it, if there is no objection.

Mr. DARDEN. Is Commander Rawlins here?
(No response.)
Senator SYMINGTON. What has he asked to do?

Mr. DARDEN. He hasn't advised the staff of the content of his statement. He merely requested an opportunity to appear.

Senator DUFF. Wel], he is not here; so we will proceed with the next bill.

(The statement of Commander Edward White Rawlins, United States Navy, retired, is as follows:)

WASHINGTON 8, D. C., February 19, 1954. Hon. JAMES H. DUFF, United States Senator,

Senate Office Building, Washington, D. C. MY DEAR SENATOR DUFF: I was to have testified before your Senate Armed Services Subcommittee this morning in connection with a proposed amendment to H. R. 5416, the bill to promote five lieutenants on the retired list of the Navy. I was present when the subcommittee met, but by a most unfortunate accident was in the outer office of the committee perfecting the rearrangement of papers for your subcommittee when you reached H. R. 5416 and called my name to testify.

I cannot tell you how unfortunate and serious for me and my career of 30 years in the Regular Navy is the loss of this opportunity to be heard. Would it be possible for you to offer the desired amendment in full committee, and have it, together with my prepared statement, enclosed herewith, made part of the record of the hearing on H. R. 5416? If you can, you will be doing an act of great justice by removing a provision of an old 1882 law that discriminates against retired officers of the Navy as distinguished from those of both the Army and also tne Air Force. Very respectfully,

EDWARD WHITE RAWLINS, Commander, U. S. Navy (Retired).

STATEMENT OF COMDR. EDWARD WHITE RAWLINS, U. S. NAVY (RETIRED),

CONCERNING H. R. 5416

Mr. Chairman, I am Comdr. Edward White Rawlins, United States Navy (retired). Permit me to express my sincere appreciation for this opportunity to be heard in connection with H. R. 5416.

I come before you with the earnest request that a simple, short, clearly worthy amendment be accepted by this committee for attachment as an additional section to H. R. 5416. Not only is the aim of this proposed amendment worthy, but in addition, I have discussed it with Mr. Robert Smart, chief counsel to the House Armed Services Committee, and have been authorized by him to say that he will recommend concurrence in this amendment by his committee if the Senate sees fit to approve it. The proposed amendment follows:

"[H. R. 5416, 83d Cong., 2d sess. ] "AMENDMENTS intended to be proposed by Mr.

to the bill (H. R. 5416) to authorize the advancement of a certain lieutenants on the retired list. of the Navy, viz: At the end of the bill add the following new section:

" "SEC. 2. The Act entitled "An Act making appropriations for the Naval Service for the fiscal year ending June thirtieth, eighteen hundred and eighty-three, and for other purposes," approved August 6, 1882 (22 Stat. 286), is amended by striking out in the paragraph relating to pay for the retired list the following: "Hereafter there shall be no promotion or increase of pay in the retired list of the Navy but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired : And provided further, That whenever" and inserting in lieu thereof the following: “Whenever”.!

"Amend the title so as to read : 'An Act to authorize the advancement of certain lieutenants on the retired list of the Navy, and for other purposes.'

Indeed, Mr. Chairman, this bill before you, H. R. 5416, would, I believe, not be necessary at all if the disputed language of the old 1882 act had been repealed as it long ago should have been.

The basic aim of this amendment is to remove from an old law enacted on August 5, 1882, certain language which discriminates against retired officers of the Navy as distinguished from retired officers of the Army, the Air Force, and even, I understand, of the Marine Corps. That old law, or statute, is the Naval Appropriation Act for the fiscal year ending June 30, 1883.

That the disputed language is discriminatory against retired officers of the. Navy, as distinguished from retired officers of the Army and of the Air Force, is substantiated by two letters, copies of which I now offer in evidence. The first one is a letter to me from Congressman James P. S. Devereux, of Maryland, dated June 5, 1953, setting forth the views of The Judge Advocate General of the Air Force. With your permission, Mr. Chairman, I shall now read this letter:

CONGRESS OF THE UNITED STATES,

HOUSE OF REPRESENTATIVES,

Washington, D. C., June 5, 1953. Comdr. EDWARD RAWLINS, United States Navy, Retired, Quebec House,

Washington 8, D. C. DEAR COMMANDER RAWLINS: The Air Force Judge Advocate General informed me that the act of August 5, 1882 (22 Stat. 286, 34 U. S. C. 402), was applicable only to the Navy. The Army and the Air Force were never brought under the policy by this or any similar act. However, it was the opinion of the Air Force Judge Advocate General that the Career Compensation Act in effect repealed the act of August 5, 1882. Have you any information on this? Sincerely yours,

J. P. S. DEVEREUX,

Member of Congress. The second letter is a longer one from The Judge Advocate General of the Navy to Congressman Devereux dated June 23, 1953. The Navy Judge Advocate General's opinion expressed therein does not agree with the Air Force Judge Advocate General's opinion “that the Career Compensation Act in effect repealed the act of August 5, 1882." A copy of the Navy Judge Advocate General's letter is herewith submitted for the record :

DEPARTMENT OF THE NAVY,
OFFICE OF THE JUDGE ADVOCATE GENERAL,

Washington 25, D. C., June 23, 1953. Hon. JAMES P. S. DEVEREUX,

House of Representatives, Washington 25, D. C. MY DEAR MR. DEVEREUX: This is in reply to your letter dated June 10, 1953, in which the opinion of this Office was requested as to whether the Career Compensation Act of 1949 nullifies the act of August 5, 1882 (22 Stat. 286; 34 U. S. C. 402).

Section 1 of the act of August 5, 1882 (22 Stat. 286; 34 U. S. C. 402) is as follows:

"Except as otherwise provided in this title, there shall be no promotion or increase of pay in the retired list of the Navy but the rank and pay of officers on the retired list shall be the same that they are when such officers shall be retired."

The provisions of this act are regarded as prohibiting either the rank or pay of officers of the Navy from being increased after they have been placed on the retired list (18 Op. Atty. Gen. 96). The provisions of the act are not however regarded as binding on the legislative power. It is always within the power of Congress to increase the rank or pay of officers on the retired list notwithstanding this statute (32 Ct. Cl. 112, 121).

By enactment of the Career Compensation Act of 1949 Congress specifically provided for increased pay for officers who had been retired prior to the effective date of that act, October 1, 1949. In certain specific classes of cases, which were generally only those in which an officer had served on active duty under a temporary appointment in a rank higher than that in which he was retired, the act also provided for a higher rank for officers retired prior to its effective date. Examples of such provisions are sections 411 (37 U. S. C. 281); 511 (37 U. S. C. 311) ; 512 (37 U. S. C. 312); 513 (37 U. S. C. 313); and 516 (37 U. S. C. 316) of. the act.

These provisions of the Career Compensation Act of 1949, insofar as they specifically authorize higher rank or higher pay for officers of the Navy who were retired prior to October 1, 1949, are regarded as superseding the provisions of the act of August 5, 1882, supra. To such extent the Career Compensation Act of 1949 is regarded as nullifying the 1882 act. Sincerely yours,

IRA H. NUNN, Rear Admiral, USN, Judge Advocate General of the Navy.

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