§ 8325. Officers: retired grade and pay

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(a)Except as provided in subsection

(b)or section 1370 1 of this title, each officer who is retired under section 8321 or 8322 of this title—

(1)unless otherwise entitled to a higher grade, shall be retired in the grade in which he was serving at the time of retirement; and

(2)unless otherwise entitled to higher pay, is entitled to retired pay computed under section 8333 of this title.

(b)Each officer who is retired while serving in the grade of admiral, vice admiral, general, or lieutenant general by virtue of an appointment under section 601 of this title or who is retired while serving in a grade to which he was appointed or promoted under section 603 of this title or promoted under section 602 1 (as in effect before February 1, 1992) or section 5721 1 of this title—

(1)unless otherwise entitled to a higher grade, shall be retired in the grade he would hold if he had not received such an appointment; and

(2)unless otherwise entitled to higher pay, is entitled to retired pay computed under section 8333 of this title.

(c)A warrant officer who retires under section 8321, 8322, or 8323 of this title may elect to be placed on the retired list in the highest grade and with the highest retired pay to which he is entitled under any provision of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 394, § 6325; Pub. L. 85–422, § 11(a)(6)(B), May 20, 1958, 72 Stat. 131; Pub. L. 85–861, § 1(143), Sept. 2, 1958, 72 Stat. 1509; Pub. L. 88–132, § 5(h)(4), Oct. 2, 1963, 77 Stat. 214; Pub. L. 95–377, § 7, Sept. 19, 1978, 92 Stat. 721; Pub. L. 96–342, title VIII, § 813(d)(3), Sept. 8, 1980, 94 Stat. 1104; Pub. L. 96–513, title V, §§ 503(47)(B), 513(17), Dec. 12, 1980, 94 Stat. 2914, 2932; Pub. L. 97–22, § 10(b)(8), July 10, 1981, 95 Stat. 137;

Pub. L. 99–348, title I, § 104(c)(2), title II, § 203(b)(3), July 1, 1986, 100 Stat. 691, 696; Pub. L. 102–484, div. A, title X, § 1052(39), Oct. 23, 1992, 106 Stat. 2501; renumbered § 8325 and amended Pub. L. 115–232, div. A, title VIII, §§ 807(b)(15), 809(a), Aug. 13, 2018, 132 Stat. 1836, 1840.)

Title III of the Officer Personnel Act of 1947 authorizes temporary promotions to the grades of lieutenant through rear admiral. The purpose of § 316(j) of that act (34 U.S.C. 410m) was to insure that each officer who is temporarily promoted under that Title, and who retires before he receives a permanent appointment in the grade in which he is serving, will be considered, for the purposes of the laws relating to retired grade and pay, to be serving in the grade he holds pursuant to his temporary appointment.

Since § 5001 of this title provides that an officer who holds a permanent appointment in one grade and a temporary appointment in a higher grade is considered as serving in the higher grade, a restatement of the substance of § 316(j) is unnecessary and is omitted from subsection (a). The words “retired other than by reason of physical disability incurred in line of duty”, in 34 U.S.C. 43g(d) and

(f)and 34 U.S.C. 410r(g), are omitted as unnecessary, since this section relates only to officers who are voluntarily retired under this chapter. The words “basic pay to which he would be entitled if serving on active duty in the grade in which retired” are substituted for the words “active-duty pay with longevity credit of the rank with which retired” in 34 U.S.C. 410c(a), for the words “active-duty pay to which entitled at the time of retirement” in 34 U.S.C. 43g(d), and for the words “active-duty pay to which she would be entitled if serving, at the time of retirement, on active duty in the rank in which placed upon the retired list” in 34 U.S.C. 43g(f) and 34 U.S.C. 410r(g), to make clear the fact that the amount of retired pay is not permanently fixed at the time of retirement but is subject to change when rates of basic pay are changed, as provided in 34 U.S.C. 410q. The words “basic pay” are substituted for the words “active-duty pay” and the words “creditable for basic pay” are substituted for the words “for which entitled to credit in the computation of her active-duty pay”, and for the words “for which entitled to credit in the computation of their pay while on active duty” to conform to the terminology used in the Career Compensation Act of 1949 (37 U.S.C. 231 et seq.)

Unlike provisions of law authorizing retirement on various other grounds, R.S. 1443, which provides for the retirement of officers on their own application after 40 years of service, contains no provisions as to retired pay. R.S. 1588 provided, inter alia, that officers so retired should received retired pay at the rate of 75 percent of the sea pay of their respective grades, but that section was expressly repealed by § 531(a)(7) of the Career Compensation Act of 1949, leaving no specific provision for the retired pay of officers retired under R.S. 1443.

It would be absurd to assume, however, that Congress intended that an officer having 40 years of service should be retired without pay, when he could have been retired with pay at any time within the preceding 20 years. By the repeal of R.S. 1588 Congress intended merely to remove obsolete and superseded provisions as to retirement at age 62 and retirement after 45 years of service, references to sea pay, and provisions, inconsistent with later law, for half pay for officers retired for other reasons.

Congress intended the retired pay of officers retired after 40 years of service to be computed according to the formula prescribed generally for retired officers, other than for officers retired by reason of physical disability, and this section is worded accordingly.

Subsection

(b)is added for clarity. With respect to officers appointed under §§ 5231 or 5232 of this title it represents a necessary inference from 34 U.S.C. 410o and 623b(e), codified in § 5233 of this title.

The reference to section 6323 is deleted, since it is no longer appropriate to include in this section officers retired under section 6323.

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