visions of the Officer Personnel Act of 1947, reestablishing a permanent promotion system in the Navy, redistributing officers in the various grades, terminating temporary appointments under the act of July 24, 1941, etc., necessarily would result in a reduction in rank of some officers of the staff corps, as well as officers of the line, serving under temporary appointments in higher grades and ranks, with a consequent reduction in pay and allowances. Yet no attempt appears to have been made by either the Navy Department or the Congress to incorporate in such legislation an express savings provision such as that often contained in statutes dealing with pay and allowances of members of the armed forces, saving personnel adversely affected by the new legislation from any reduction in pay and allowances below that to which they were entitled under prior statutes.

While the said act does contain certain savings provisions, they do not relate to pay and allowances. For example, section 304 (i) of the said act, 61 Stat. 837, provides that officers of any staff corps who, on the date of establishment of the lineal list of officers of the staff corps, are serving under a temporary appointment in a grade to which appointed for a period of limited duration, shall retain the "lineal position" to which they are entitled by virtue of such appointment until the expiration of the term thereof. But, a rear admiral of the staff corps is not entitled under the 1947 act to upper half pay on the basis of his "lineal position" on the list of officers of the staff corps, but only upon the basis of the date that his line officer running mate enters the upper half of the list of rear admirals. Also, section 304 (k), 61 Stat. 838, contains a proviso that the existing temporary appointment of any staff corps officer placed on the lineal list who is serving under a temporary appointment for a period of limited duration, shall be continued in effect until such appointment shall terminate by its own terms or until such appointment is terminated by the President. The apparent purpose of such proviso was to exempt such temporary appointments from the operation of the provision in section 302 (i) of the said act, 61 Stat. 831, requiring that not later than the first day of the fourth month following the date of approval of this act, all temporary appointments of naval personnel made pursuant to the provisions of the act of July 24, 1941, 55 Stat. 603, as amended, shall be terminated, except those which are affirmed or continued in effect pursuant to the new act; but there is nothing in such provision which may be viewed as saving or intending to save a temporary rear admiral the pay of the upper half when he does not qualify for upper half pay under other provisions of the said act.

In view of the foregoing, and in the absence of a savings provision such as that sometimes expressly included in legislation pertaining

to the pay and allowances of members of the armed forces, this Office is not warranted in concluding that Rear Admiral Calver is entitled, while on the active list, to continue to receive the active duty pay and allowances of a rear admiral of the upper half under the circumstances presented in your letter. Accordingly, question No. 1 is answered in the negative.

The second question presented involves the right of Rear Admiral Calver, in the event of his retirement under section 6 of Public Law 305, approved February 21, 1946, and subsequent recall to active duty, to receive the active duty pay and allowances of a rear admiral of the upper half. Section 6 of Public Law 305, approved February 21, 1946, 60 Stat. 27, authorizes officers of the Navy, Marine Corps, and Coast Guard, who have completed 20 years of active service in the Navy, Marine Corps or Coast Guard, or reserve components thereof, at least 10 years of which shall be active commissioned service, to be placed on the retired list with the pay provided in section 7 of the said act. Section 7 of the act, as amended by section 432 of the Officer Personnel Act of 1947, 61 Stat. 881, provides as follows:

*

*

SEC. 7. (a) Each officer retired pursuant to the following sections of this Act shall be placed on the retired list with the highest rank, permanent or temporary, held by him while on active duty, if his performance of duty in such rank as determined by the Secretary of the Navy has been satisfactory. In any case where, as determined by the Secretary of the Navy, any such officer has not performed satisfactory duty in the highest rank held by him while on active duty, he shall be placed on the retired list with the next lower rank in which he has served but not lower than his permanent rank. * And provided further, That in the case of officers hereafter retired, except those retired for physical disability or in accordance with section 412 of this Act, whose computation of pay on the active list is not based upon years of service they shall receive retired pay at the rate of 21⁄2 per centum of their active-duty pay in the grade in which serving at the time of retirement multiplied by the number of years of service for which they would be entitled to credit in the computation of pay on the active list had they been serving in the grade of captain in the Navy or colonel in the Marine Corps at the time of their retirement, but retired pay so computed shall not exceed a total of 75 per centum of said active-duty pay.

(b) Nothing within this section shall prevent any officer from being placed on the retired list with the highest rank and with the highest retired pay to which he might be entitled under other provisions of law.

Section 10 of the act of July 24, 1941, 55 Stat. 605, as amended by section 8 of Public Law 305, approved February 21, 1946, 60 Stat. 28, 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 appointments, and shall receive retired pay computed at the rate prescribed by law and applicable in each individual case but based upon such higher rank.

(d) Personnel accorded higher rank pursuant to this section shall, if subsequently assigned active duty, be recalled to active duty in the grades, ranks or ratings, with which they were retired or returned to an inactive status unless under other provisions of law they are entitled to higher grades, ranks, or ratings.

(e) The highest rank in which an officer served on or prior to June 30, 1946, or if a prisoner of war at any time during World War II the highest rank to which an officer was temporarily appointed pursuant to the provisions of this Act, is the highest rank in which the officer may be retired and upon which his retired pay may be based pursuant to this section, unless under provisions of law other than those contained within this section he is entitled to a higher rank on the retired list or to a higher retired pay, or unless at the time of retirement he is serving in a higher permanent grade or rank.

The purpose of such provisions in section 10 of the act of July 24, 1941, as amended, appears to be to permit officers temporarily appointed to higher grades or ranks pursuant to that act to be retired with the highest rank in which they served satisfactorily on or prior to June 30, 1946, and to have their retired pay based upon such temporary rank, unless entitled to the same or higher grade or rank or retired pay under other provisions of law. While the rank of rear admiral on the active list is a single rank, it is divided for pay purposes into two grades-that of upper half and lower half. A rear admiral on the active list of the Navy serving satisfactorily under a temporary appointment pursuant to the act of July 24, 1941, as amended, who received the pay and allowances authorized for rear admirals of the upper half prior to June 30, 1946, would be entitled, in the event he was retired on or prior to that date while serving on active duty under such temporary appointment, to receive retired pay based on the pay of a rear admiral of the upper half. Cf. 26 Comp. Gen. 333. The statute in that respect obviously was not intended to make any distinction between rear admirals on the active list of the Navy serving under temporary appointments and receiving the pay and allowances of the upper half who were retired on or prior to June 30, 1946, and those retired after that date. Consequently, in the event Rear Admiral Calver is retired under the statutory provisions, supra, and otherwise meets the condition of the statute, he will be entitled to retired pay based upon the rank and pay grade he held on June 30, 1946, that is, rear admiral, upper half.

Section 10 (d) of the act of July 24, 1941, as amended, supra, specifically requires that personnel accorded higher rank under that section shall, if subsequently assigned to active duty, be recalled to active duty in the grades, ranks or ratings with which they were retired. Section 15 of the Pay Readjustment Act of 1942, 56 Stat. 367, as amended, 57 Stat. 571, provides that retired officers of the Navy when on active duty shall "receive full pay and allowances of the grade or rank in which they serve on such active duty." It has been recognized that an officer who, while on the active list of the Navy,

holding the permanent rank of captain, had been temporarily appointed under the said act of June 24, 1941, to the rank of rear admiral and who served in such higher temporary rank and was entitled to receive the pay and allowances of a rear admiral of the upper half prior to June 30, 1946, would be entitled, in the event of his recall to active duty subsequent to retirement with such higher rank, to the active duty pay and allowances of a rear admiral of the upper half. 26 Comp. Gen. 636, 642. Also, see 19 Comp. Gen. 433; 22 id. 328; 24 id. 707; B-34053, August 10, 1943; B-25867, June 22, 1942; A-10641, January 26, 1942. Cf. 26 Comp. Gen. 271, 275. Accordingly, in the event Rear Admiral Calver is retired in his temporary rank of rear admiral and recalled to active duty and serves on active duty in the rank of rear admiral, he will be entitled to the active duty pay and allowances authorized for a rear admiral of the upper half. Question No. 2 is answered in the affirmative.

(B-68774)

PAY AND ALLOWANCES-MISSING, INTERNED, CAPTURED, ETC.,

PERSONS

The provisions of section 9 of the Missing Persons Act, as amended, that administrative determinations of entitlement of any person, "under provisions of this Act, to pay and allowances, including credits and charges in his account," shall be conclusive, apply only to matters within the scope of the act; that is, the conclusiveness so accorded to administrative determinations does not extend to a pay or allowance item not within the contemplation of the statute.

Per diem in lieu of subsistence, a temporary allowance while in a travel status, which an employee was receiving at the beginning of a period of absence in a status of "captured by an enemy," may not be allowed as part of the "pay and allowances" with which he was entitled to be credited under section 2 of the Missing Persons Act, as amended, during the period of such absence.

Decision by Comptroller General Warren, October 14, 1947:

There has been presented to this Office for settlement the claim of Mr. Herman P. Hevenor for a per diem travel allowance as a civilian employee of the United States during the period he was held by the Japanese as a prisoner of war from December 23, 1941, to September 8, 1945, such claim being made under the provisions of the Missing Persons Act of March 7, 1942, 56 Stat. 143, as amended by the act of July 1, 1944, 58 Stat. 679, 680.

Sections 2 and 9 of the Missing Persons Act, as amended, supra, provide, in pertinent part, as follows:

SEC. 2. Any person who is in active service and who is officially determined to be absent in a status of missing, missing, in action, interned in a neutral country, captured by an enemy, beleaguered or besieged shall, for the period he is officially carried or determined to be in any such status, be entitled to receive or to have credited to his account the same pay and allowances to which he was

entitled at the beginning of such period of absence or may become entitled thereafter * *

SEC. 9. The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the administration of this Act, and for the purposes of this Act determinations so made shall be conclusive as to death or finding of death, as to any other status dealt with by this Act, and as to any essential date including that upon which evidence or information is received in such department or by the head thereof. The determination of the head of the department concerned, or of such subordinate as he may designate, shall be conclusive as to whether information received concerning any person is to be construed and acted upon as an official report of death. When any information deemed to establish conclusively the death of any person is received in the department concerned, action shall be taken thereon as an official report of death, notwithstanding any prior action relating to death or other status of such person. If the twelve months' absence prescribed in section 5 of this Act has expired, a finding of death shall be made whenever information received, or a lapse of time without information, shall be deemed to establish a reasonable presumption that any person in a missing or other status is no longer alive. Payment or settlement of an account made pursuant to a report, determination, or finding of death shall not be recovered or reopened by reason of a subsequent report or determination which fixes a date of death except that an account shall be reopened and settled upon the basis of any date of death so fixed which is later than that used as a basis for prior settlement. Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under provisions of this Act, to pay and allowances, including credits and charges in his account, and all such determinations shall be conclusive * * *. [Italics supplied.]

It will be noted that section 2, quoted above, provides that any person within the purview of the act who is officially determined to be absent in a missing, missing in action, etc., status shall, for the period he is officially carried or determined to be in such status, be entitled to receive the same "pay and allowances" to which he was entitled at the beginning of such absence or to which he may become entitled thereafter. The phrase "pay and allowances" is not included under any of the definitions contained in the said Missing Persons Act, as amended. And, it cannot be said that such phrase necessarily includes any or all "allowances” which administratively may be authorized, especially with respect to temporary allowances such as per diem while in a travel status. Cf. 26 Comp. Gen. 165.

However, the question of whether a temporary per diem allowance is within contemplation of the phrase "pay and allowances" as used in section 2 of the Missing Persons Act, as amended, supra, would seem to be resolved by the legislative history of that act. In House Report No. 1674, June 17, 1944, accompanying H. R. 4405, which subsequently became the said amendatory act of July 1, 1944, it was stated with respect to section 2, as therein revised, as follows:

(b) A person is entitled to receive or to have credited to his account the pay and allowances he was entitled to receive at the beginning of such period of absence or which he may become entitled to thereafter. Initially or subsequently included are credits for foreign service and sea pay, submarine, aviation, and parachute pay, longevity, medal pay, uniform allowances, rental, subsistence