
    L. C. COVELL v. THE UNITED STATES
    [No. 46240.
    Decided July 6, 1948]
    
      
      Mr. Fred W. Shields for plaintiff. Messrs. King cé King were on the brief.
    
      Mr. FranJc J. Keating, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff sues for the pay of a rear admiral of the upper half, to which he claims he is entitled under the proviso to section 3 of the Act of January 12,1923 (42 Stat. 1130). .

On May 24,1939, plaintiff was appointed Assistant Commandant of the United States Coast Guard. He retired on January 1,1942, after having served 41 years, 6 months, and 13 days.

The proviso to section 3 of the Act of January 12, 1923, provides that after a commissioned officer of the Coast Guard has served forty years and he 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.” Under this Act plaintiff is entitled to the retired pay of a rear admiral of the upper half. He has been receiving the pay of a rear admiral of the lower half.

The Comptroller General, however, says that since plaintiff was serving as Assistant Commandant of the Coast Guard when he retired, he is only entitled to the pay of a rear admiral of the lower half because of section 3 of the Act of June 6, 1940 (54 Stat. 246). This provides that when an officer serving as Assistant Commandant of the Coast Guard shall be retired, whether before or after the termination of his service as Assistant Commandant, he shall be retired with the rank of rear admiral and receive the retired pay of a rear admiral of the lower half. This section is quoted in a footnote below. This section, it is alleged, applies to ■ all assistant commandants who retire, irrespective .of their length of service.

We do .not think the section can be so construed.' We had .practically the same question presented to us in the case of William E. Reynolds v. United States, 95 C. Cls. 160. We there considered the pay to which a retired commandant of the Coast Guard was entitled. We held that section 2 ■ of the Act of January 12,1923, which was similar to the Act of June 6,1940, did, not deprive an officer of the right given him by section 3 of that Act. Sections 2 and 3 of the Act of 1923 are quoted in the footnote below.

Under section 2 of the Act of 1923 it was provided that when the Commandant of the Coast Guard should retire, he should receive the pay of a rear admiral, lower-half, of the Navy on the retired list. Section 3 of the Act of June 6,1940, provides that when the Assistant Commandant shall be retired, he shall receive the pay of a rear admiral, lower half. In the Reynolds case we held that section 2 of the Act of 1923 should be read in connection with section.3 of that Act, which provided that on the retirement of an officer who had served more than 40 year’s, he should receive the pay of one grade higher than that which he held at the time of his retirement. Under the Act of 1923 a commandant held the rank’ of a rear admiral, and drew the pay of a rear admiral, lower half, and, therefore, under section 3 of that Act any commandant who retired after forty years’ service was entitled to the pay of a rear admiral of the upper half. We held that section 2 applied to commandants generally, irrespective of their length of service, but that when read in conjunction with section 3 it meant that a commandant who had forty years’ service was entitled to the pay of a rear admiral of the upper half.

Section 3 of the Act of 1940 should also be read in conjunction with section 3 of the Act of 1923. Reading them together they mean that an assistant commandant, whatever may have been his length of service, is entitled upon retirement to the pay of a rear admiral of the lower half; but, if he has had forty years’ service, he is entitled to the pay of a rear admiral of the upper half.

Plaintiff is entitled to the pay of a rear admiral of the upper half from the date of his retirement on January 1,1942. Judgment will be entered upon the filing of a stipulation by the parties, or, in the absence of a stipulation, upon the incoming of a report of a commissioner, showing the amount due computed in accordance with this opinion. It is so ordered.

Howell, Judge; Madden, Judge; Littleton, Judge; and JONES, Chief Justice, concur. 
      
       “The President is authorized to appoint in the Coast Guard, by and with the advice and consent of the Senate, one Assistant Commandant who shall serve for a term of four years unless sooner relieved by the President. The Assistant Commandant shall perform such duties as the Commandant of the Coast Guard may prescribe and shall act as Commandant during the absence or disability of the Commandant or in the event that there is a vacancy in the office of Commandant. The Assistant Commandant shall be selected from the active list of line officers not below the grade of commander, and such appointment shall not create a vacancy; and the Commandant of the Coast Guard shall make recommendations for the appointment of the Assistant Commandant. The Assistant Commandant shall have the rank of rear admiral and the pay and allowances of a rear admiral (lower half) : Provided, That an officer whose term of service as Assistant Commandant has expired shall take his place on the lineal list in the grade that he would have attained had he not served as Assistant Commandant: Provided further, That any officer who was serving on February 15, 1940, or shall thereafter serve, as Assistant Commandant shall, when retired, whether before or at any time after the termination of his service as Assistant Commandant, be retired with the rank of rear admiral and the retired pay of a rear admiral (lower half).”
     
      
       “Sec. 2. • * * * 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, * »
      “Sec. 3. * * * 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 the 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.”
     