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. Well, 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:) Hon. JAMES H. DUFF, WASHINGTON 8, D. C., February 19, 1954. 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 the 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, Comdr. EDWARD RAWLINS, HOUSE OF REPRESENTATIVES, 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? J. P. S. DEVEREUX, 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: Hon. JAMES P. S. DEVEREUX, DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL, 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. Clearly both Judge Advocate Generals cannot be right. I therefore earnestly request the committee to approve this simple amendment and so remove all question of doubt as well as remove discriminatory language which may even be invalid on constitutional grounds. My interest in this proposed amendment may deserve some special explanation. It has a history of 5 years of legislative effort to rectify the twice established injustice of my wartime nonpromotion to captain USN in 1943. Repeatedly and vigorously Adm. Robt. B. Carney, now CNO, has spoken in my behalf. Mr. Chairman, permit me to read a most important and significant letter from Admiral Carney to me dated August 6, 1952, some 18 months ago. It clearly reveals his magnificent sense of justice, his vigorous readiness to do battle for right, his able grasp of human values, and matchless loyalty to a deserving subordinate "loyalty down" as we call it in the service. COMMANDER IN CHIEF, Comdr. EDWARD W. RAWLINS, USN (retired), NAPLES, ITALY, Washington 8, D. C. MY DEAR ED: I was delighted to hear from you even though the news of your project was not favorable. I need not reassure you that I share your hope for ultimate success, and not only agree with your determination to continue to prosecute it, but urge you to do so. I am sure, also, that I do not need to reaffirm my willingness to help whenever you need ammunition. I realize that a huge organization like the naval personnel business must sometimes operate like a soulless machine because of possible ramifications which would dangerously compromise their good policies through the medium of multifarious exceptions; however, I as an individual, and a responsible one, could never subscribe to the theory that one wrong should not be righted because it might lead to other claims. I told Grace that I had heard from you, and she told me to be sure to include her affectionate best wishes to you both. Sincerely, ROBT. B. CARNEY, Admiral, United States Navy. On August 8, 1952, before Admiral Carney's letter of the 6th reached me I called on Rear Adm. Ira Nunn, the new Judge Advocate General of the Navy, who was a Naval Academy classmate and personal friend of mine. In the course of our talk he offered the purely unofficial personal suggestion that I submit a retition to the President for promotion to captain by Executive appointment. He said he felt certain the President had this appointive power under the Constitution. He also said unofficially that this would appear to offer a satisfactory solution to a case of long-standing. Acting upon Admiral Nunn's unofficial suggestion I drafted a documented detailed petition to the President. Before submitting it I transmitted my draft to Admiral Carney for any comment or advice he might choose to make. Admiral Carney replied immediately with wise and valuable suggestions which I followed implicitly. My petition then was submitted under date of November 25, 1952. Much to my surprise 6 weeks later, however, I received a letter dated January 7, 1953, from the then Secretary of the Navy reading in part as follows: "The Judge Advocate General of the Navy has informed me that, although the Constitution of the United States grants the President the authority, with the advice and consent of the Senate to appoint officers in the naval service, the President is precluded by statute (act of August 5, 1882, 22 Stat. 286, 34 U. S. C. 402) from promoting an officer on the retired list without congressional legislation." A copy of the entire letter from the then Secretary of the Navy dated January 7, 1953, I respectfully offer for the record: THE SECRETARY OF THE NAVY, Washington, January 7, 1953. Washington, D. C. Comdr. EDWARD W. RAWLINS, USN (Retired), DEAR COMMANDER RAWLINS: The copy of your petition to the President of the United States, which was left in my office with the request that I support it by a letter to the President, has been carefully considered. The Judge Advocate General of the Navy has informed me that, although the Constitution of the United States grants the President the authority, with the advice and consent of the Senate, to appoint officers in the naval service, the President is precluded by statute (act of August 5, 1882, 22 Stat. 286, 34 U. S. C. 402) from promoting an officer on the retired list without congressional legislation. In view of this law, I am unable to recommend to the President, that he take favorable action on your petition. Furthermore, it does not appear that anything would be accomplished by a personal interview with me, since it appears that the relief sought may be secured only through an act of Congress. Sincerely yours, Comdr. EDWARD W. RAWLINS, USN (Retired). DAN A. KIMBALL. THE WHITE HOUSE, Washington, January 2, 1953. Washington, D. C. MY DEAR COMMANDER RAWLINS: We have carefully considered your petition of November 25, 1952, by which you ask that the President promote you to the grade of captain, United States Navy (retired). Without expressing any view on the merits of your petition, I regret to advise you that we have reached the conclusion that the President may not appoint you to captain on the retired list of the Navy without enabling legislation authorizing him to do so. Sincerely yours, CHARLES S. MURPHY, Special Counsel to the President. It is important for the committee to know the tenor of a letter written last spring by Admiral Carney to Senator Saltonstall dated May 7, 1953. I offer a copy for the record, and time permitting wish to read extracts from it. Hon. LEVERETT SALTONSTALL, COMMANDER IN CHIEF, Chairman, United States Senate Committee on Armed Services, United States Senate, Washington, D. C. MY DEAR SENATOR: I have just received your letter of April 24 concerning S. 1063. I am happy to be able to comment. I have been interested in Commander Rawlins' case from the beginning. He served with me in the Navy's North Atlantic escort operation in 1941 and 1942 and I am rather well acquainted with his history since that time. On earlier occasions when Commander Rawlins has endeavored to obtain congressional relief in bills similar to S. 1063 I have testified in his behalf and have stated that it was my considered opinion that in comparison with all other contemporary officers of my acquaintance his character, his performance of duty, and his professional competence was such as to have qualified him for promotion with his contemporaries. I do not have here, in my personal files, copies of my earlier testimony or letters concerning Rawlins' case, but the opinions which I submitted in testimony or in documents concerning this case remain unchanged and I would be quite willing to have them made available to your committee as representing the opinions which I held then and still hold. I cannot comment on the Navy Department report as submitted by Rear Admiral Nunn, USN, nor would I presume to comment on the aspects of S. 1063 which deal with such special matters as retroactive pay, return to the active list, etc. I can only reaffirm my opinion, based on my knowledge of his case, and also based on citations covering Commander Rawlins' wartime service, that his professional qualifications, character, and performance of duty placed him safely within the bracket of those suitable for wartime promotion. I believed then, and still believe, that his performance warranted his being promoted to the grade of captain with his contemporaries. It was my feeling, sir, that there had been a slip in his case and if there had been an inequity it should be corrected. Although a good many years have passed since Commander Rawlins first began his efforts to regain his lineal position in the Navy, I sincerely hope that some restitution can be made if it |