A-17898, JUNE 1, 1927, 6 COMP. GEN. 777

PAY - RETIRED OFFICER - NAVY - LEAVE OF ABSENCE A RETIRED OFFICER OF THE NAVY WHO, WHILE ON ACTIVE DUTY, IS GRANTED A LEAVE OF ABSENCE IS NOT, DURING SUCH PERIOD OF LEAVE,"ON ACTIVE DUTY," BUT IS IN AN INACTIVE STATUS, AND IS ENTITLED DURING THE PERIOD OF LEAVE TO THE PAY PROVIDED BY LAW FOR SUCH OFFICER "WHEN NOT ON ACTIVE DUTY," WHICH IS HIS RETIRED PAY. 11 COMP. DEC. 376, AND 2 COMP. GEN. 333, WILL NOT BE FOLLOWED HEREAFTER. A LIEUTENANT COMMANDER ON THE RETIRED LIST OF THE NAVY ADVANCED UNDER THE ACT OF JANUARY 5, 1927, 44 STAT. 933, TO THE GRADE OF COMMANDER ON THE RETIRED LIST OF THE NAVY, TO DATE FROM MAY 9, 1926, WITH THE HIGHEST RETIRED PAY OF THAT GRADE UNDER EXISTING LAW, IS ENTITLED FROM MAY 9, 1926, TO PAY AT THE RATE OF $4,312.50 PER ANNUM, THE HIGHEST RETIRED PAY OF A COMMANDER UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625.

COMPTROLLER GENERAL MCCARL TO LIEUT. B. L. LANDFORD, UNITED STATES NAVY, JUNE 1, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 16, 1927, REQUESTING DECISION AS TO THE RATE OF PAY TO WHICH COMMANDER RICHARD E. BYRD, UNITED STATES NAVY, RETIRED, IS ENTITLED FROM MAY 9, 1926.

IT APPEARS THAT BY COMMISSION DATED JANUARY 21, 1927, COMMANDER BYRD WAS APPOINTED A COMMANDER IN THE NAVY ON THE RETIRED LIST FROM MAY 9, 1926, IN ACCORDANCE WITH THE ACT OF JANUARY 5, 1927, 44 STAT. 933, WHICH, IN SO FAR AS HERE MATERIAL, PROVIDES:

THAT THE PRESIDENT OF THE UNITED STATES BE, AND HE IS HEREBY, AUTHORIZED TO ADVANCE LIEUTENANT COMMANDER RICHARD E. BYRD, UNITED STATES NAVY, RETIRED, TO THE GRADE OF COMMANDER ON THE RETIRED LIST OF THE NAVY, TO DATE FROM MAY 9, 1926, WITH THE HIGHEST RETIRED PAY OF THAT GRADE UNDER EXISTING LAW.

HE ACCEPTED THE APPOINTMENT AND EXECUTED THE OATH OF OFFICE ON FEBRUARY 15, 1927.

THE EXISTING LAW IS THE ACT OF JUNE 10, 1922, 42 STAT. 625, ET SEQ. WHICH PROVIDES:

THAT, BEGINNING JULY 1, 1922, FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS * * * OF THE NAVY BELOW THE GRADE OF REAR ADMIRAL, * * * PAY PERIODS ARE PRESCRIBED, AND THE BASE PAY FOR EACH IS FIXED AS FOLLOWS:

* * * THE FOURTH PERIOD, $3,000; THE FIFTH PERIOD, $3,500; AND THE SIXTH PERIOD, $4,000.

THE PAY OF THE SIXTH PERIOD SHALL BE PAID TO * * * COMMANDERS OF THE NAVY, * * * WHO HAVE COMPLETED THIRTY YEARS' SERVICE; * * *

THE PAY OF THE FIFTH PERIOD SHALL BE PAID TO * * * COMMANDERS OF THE NAVY, * * * WHO HAVE COMPLETED TWENTY YEARS' SERVICE; * * *

THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO * * * COMMANDERS OF THE NAVY, * * * WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH OR SIXTH PERIOD;

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS: PROVIDED, THAT THE BASE PAY PLUS PAY FOR LENGTH OF SERVICE OF NO OFFICER BELOW THE GRADE OF * * * CAPTAIN OF THE NAVY, * * * SHALL EXCEED $5,750. * * *

IT THUS APPEARS THAT THE HIGHEST ACTIVE DUTY PAY OF A COMMANDER OF THE NAVY IS $5,700 PER ANNUM.

THE HIGHEST RETIRED PAY OF THAT GRADE UNDER EXISTING LAW IS THEREFORE THREE-FOURTHS OF THAT AMOUNT OR $4,312.50 PER ANNUM. SEE SCHULTZE V. UNITED STATES, 24 CT.CLS. 299; 11 COMP. DEC. 11; 14 ID. 929; 17 ID. 919; 18 ID. 15; 46 MS. COMP. DEC. 1067, AUGUST 19, 1909; 1 COMP. GEN. 690.

THE PRIOR SERVICE RECORD OF COMMANDER BYRD, ELIMINATING TEMPORARY APPOINTMENTS, APPEARS TO BE AS FOLLOWS:

APPOINTED MIDSHIPMAN MAY 28, 1908;

COMMISSIONED ENSIGN FROM JUNE 8, 1912;

TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF LIEUTENANT, JUNIOR GRADE, MARCH 15, 1916, FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, IN ACCORDANCE WITH SECTION 1453, REVISED STATUTES, AND THE ACT OF MARCH 4, 1911, 36 STAT. 1267;

ASSIGNED TO ACTIVE DUTY, REPORTING JUNE 9, 1916;

COMMISSIONED REGULAR A LIEUTENANT ON THE RETIRED LIST FROM SEPTEMBER 2, 1918, UNDER THE ACT OF JULY 1, 1918, 40 STAT. 717;

ADVANCED TO RANK OF LIEUTENANT COMMANDER ON THE RETIRED LIST FROM MARCH 3, 1925, UNDER THE ACT OF FEBRUARY 10, 1925, 43 STAT. 821.

CONTINUED ON ACTIVE DUTY TO APRIL 1, 1926, AND GRANTED LEAVE OF ABSENCE THEREFROM BEGINNING APRIL 2, 1926, WITH PERMISSION TO ACCOMPANY AN AVIATION ARTIC EXPEDITION, THIS LEAVE TO EXPIRE TWO WEEKS AFTER HIS RETURN TO THE UNITED STATES.

BY LETTER OF JULY 16, 1926, THE CHIEF OF THE BUREAU OF NAVIGATION REFERRING TO COMMANDER BYRD'S LETTER OF JULY 3, 1926, ADVISED HIM:

1. THE LEAVE OF ABSENCE GRANTED YOU IS HEREBY EXTENDED TO 30 SEPT. 1926.

2. SO MUCH OF THIS LEAVE AS EXTENDS BEYOND JULY 31, 1926, IS IN EXCESS OF THE STATUTORY LEAVE OF ABSENCE TO YOUR CREDIT.

HIS LEAVE WAS SUBSEQUENTLY EXTENDED FROM TIME TO TIME, THE LAST EXTENSION BEING FOR SIX MONTHS FROM APRIL 1, 1927. IT THUS APPEARS THAT COMMANDER BYRD HAS COMPLETED 17 YEARS' SERVICE, FOR PURPOSES OF ACTIVE-DUTY PAY, COUNTING SERVICE AS MIDSHIPMAN, AS A COMMISSIONED OFFICER ON THE ACTIVE LIST, AND AS AN OFFICER ON THE RETIRED LIST ON ACTIVE DUTY.

ON MAY 9, 1926, THE DATE HE TOOK RANK AS COMMANDER, HE WAS ON A LEAVE OF ABSENCE FROM ACTIVE DUTY, WHICH LEAVE BY SUBSEQUENT EXTENSIONS HAS CONTINUED TO THE PRESENT TIME AS STATED ABOVE.

IT WILL BE NOTED THAT THE ACT OF JANUARY 5, 1927, UNDER WHICH COMMANDER BYRD WAS ADVANCED TO THE GRADE OF COMMANDER ON THE RETIRED LIST, FIXED HIS RETIRED PAY AS "THE HIGHEST RETIRED PAY OF THAT GRADE UNDER EXISTING LAW," AND LEFT HIS PAY AND ALLOWANCES WHEN ON ACTIVE DUTY TO BE DETERMINED UNDER THE GENERAL LAW.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDES:

* * * RETIRED OFFICERS OF THE * * * NAVY * * * BELOW THE GRADE OF * * * COMMODORE * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.

THE QUESTION ARISES AS TO HIS PAY STATUS WHILE ON SAID LEAVE.

THE LAWS RELATING TO LEAVES OF ABSENCE OF OFFICERS OF THE ARMY ON THE ACTIVE LIST AND MADE APPLICABLE TO OFFICERS OF THE NAVY BY SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, AND THE ACT OF MAY 13, 1908, 35 STAT. 127, ARE THE FOLLOWING:

SECTION 1265, REVISED STATUTES, WHICH PROVIDES:

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF-PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

THE ACT OF JULY 29, 1876, 19 STAT. 102, WHICH PROVIDES:

THAT AN ACT APPROVED MAY EIGHTH, EIGHTEEN HUNDRED AND SEVENTY-FOUR, IN REGARD TO LEAVE OF ABSENCE OF ARMY OFFICERS, BE, AND THE SAME IS HEREBY, SO AMENDED THAT ALL OFFICERS ON DUTY SHALL BE ALLOWED, IN THE DISCRETION OF THE SECRETARY OF WAR, SIXTY DAYS' LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCE: PROVIDED, THAT THE SAME BE TAKEN ONCE IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE EXTENDED TO THREE MONTHS, IF TAKEN ONCE ONLY IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONCE ONLY IN FOUR YEARS.

IN 11 COMP. DEC. 376 THE QUESTION WAS PRESENTED AS TO THE BASIS OF PAY WHILE ON A LEAVE OF ABSENCE OF A RETIRED OFFICER OF THE MEDICAL CORPS OF THE NAVY WHO HAD BEEN ORDERED TO ACTIVE DUTY UNDER THE ACT OF JUNE 7, 1900, 31 STAT. 703, AND WHO WHILE ON ACTIVE DUTY HAD BEEN GRANTED A LEAVE OF ABSENCE FOR ONE MONTH, THE SAID ACT PROVIDING THAT SUCH OFFICER "WHILE SO EMPLOYED (ON ACTIVE DUTY) SHALL RECEIVE THE PAY AND ALLOWANCES OF AN OFFICER ON THE ACTIVE LIST OF THE GRADE FROM WHICH HE WAS RETIRED.' WAS STATED:

I AM OF OPINION THAT WHILE A RETIRED OFFICER OF THE NAVY IS ON ACTIVE DUTY UNDER THIS STATUTE HE IS IN THE SAME CONDITION IN ALL RESPECTS AS TO PAY AS AN OFFICER OF THE ACTIVE LIST.

LEAVE OF ABSENCE IS AN INCIDENT TO ACTIVE DUTY, AND WHEN A RETIRED OFFICER ON ACTIVE DUTY IS GRANTED A LEAVE OF ABSENCE, HE IS NOT, BY THAT GRANT, RETURNED TO HIS FORMER CONDITION AS RETIRED OFFICER, BUT IS IN THE LEAVE STATUS OF AN OFFICER ON THE ACTIVE LIST.

WHEN IN THE DISCRETION OF THE SECRETARY OF THE NAVY THE SERVICES OF A RETIRED OFFICER ARE NO LONGER REQUIRED ON ACTIVE DUTY, HIS ORDER WILL RELEGATE SUCH OFFICER TO THE RETIRED STATUS, BUT I DO NOT THINK AN ORDER GRANTING LEAVE OF ABSENCE FOR A SPECIFIED TIME REMOVES HIM FROM THE PAY STATUS OF AN OFFICER ON THE ACTIVE LIST.

I AM THEREFORE OF OPINION THAT MEDICAL INSPECTOR WOOLVERTON IS ENTITLED, DURING THE TIME HE WAS ON THE LEAVE OF ABSENCE REFERRED TO, TO THE SAME PAY THAT IS PROVIDED FOR OFFICERS OF THE ACTIVE LIST WHEN ON LEAVE.

IN 2 COMP. GEN. 333 THE SAID DECISION WAS FOLLOWED AND APPLIED IN THE CASE OF A RETIRED ARMY OFFICER WHO WHILE ON ACTIVE DUTY WAS GRANTED A LEAVE OF ABSENCE OF 1 MONTH AND 15 DAYS, 13 DAYS OF WHICH WAS IN EXCESS OF THE 30 DAYS PER YEAR ALLOWED ACTIVE-LIST OFFICERS WITH FULL PAY AND ALLOWANCES, AND IT WAS HELD THAT HE WAS ENTITLED FOR THE PERIOD OF SUCH EXCESS LEAVE TO ONE-HALF PAY AND TO NO ALLOWANCES.

APPLYING THESE DECISIONS TO THE FACTS IN THIS CASE, COMMANDER BYRD WOULD BE ENTITLED TO THE FULL PAY AND ALLOWANCES OF A LIEUTENANT COMMANDER OF HIS LENGTH OF SERVICE FROM APRIL 2 TO MAY 8, 1926, FOURTH PERIOD, AND TO THE FULL PAY AND ALLOWANCES OF A COMMANDER OF HIS LENGTH OF SERVICE FROM MAY 9 TO JULY 31, 1926, FOURTH PERIOD, AND THEREAFTER DURING THE CONTINUATION OF HIS LEAVE TO ONE-HALF OF SUCH PAY AND TO NO ALLOWANCES.

THE FACTS OF THIS CASE CALL FOR A CONSIDERATION OF THE SOUNDNESS OF THESE DECISIONS, WHICH ARE BASED ON THE CONCLUSION THAT A RETIRED OFFICER, WHEN EMPLOYED ON ACTIVE DUTY AND THEREBY ENTITLED TO THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE ON THE ACTIVE LIST, AND WHO IS GRANTED A LEAVE OF ABSENCE, SUCH LEAVE DOES NOT INTERRUPT HIS ACTIVE-DUTY STATUS, AND HE CONTINUES WHILE ON SUCH LEAVE TO RECEIVE THE PAY AND ALLOWANCES TO WHICH AN OFFICER ON THE ACTIVE LIST IS ENTITLED UNDER THE SAME CIRCUMSTANCES.

SECTION 1588 OF THE REVISED STATUTES AS AMENDED PROVIDES THAT THE PAY OF OFFICERS OF THE NAVY WHO HAVE BEEN RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY, AS WAS COMMANDER BYRD, SHALL,"WHEN NOT ON ACTIVE DUTY," BE EQUAL TO SEVENTY-FIVE PERCENTUM OF THE PAY OF THEIR GRADE OR RANK, AND SECTION 17 OF THE ACT OF JUNE 10, 1922, QUOTED SUPRA, PROVIDES THAT RETIRED OFFICERS OF THE NAVY BELOW THE GRADE OF COMMODORE, SHALL,"WHEN ON ACTIVE DUTY," RECEIVE FULL PAY AND ALLOWANCES.

IT THUS APPEARS THAT THE LAW EXPRESSLY PROVIDES ONLY TWO RATES OF PAY FOR RETIRED OFFICERS--- RETIRED PAY "WHEN NOT ON ACTIVE DUTY," AND FULL PAY AND ALLOWANCES "WHEN ON ACTIVE DUTY.'

AS TO WHETHER A RETIRED OFFICER IS "ON ACTIVE DUTY" OR "NOT ON ACTIVE DUTY" IS A QUESTION OF FACT. THE EFFECT OF A LEAVE OF ABSENCE FOR THE PERIOD OF THE LEAVE IS TO RELIEVE AN OFFICER FROM DUTY. AS WAS SAID IN COLHOUN V. THE UNITED STATES, 38 CT.CLS. 198, 202, WITH REFERENCE TO WHETHER A NAVAL OFFICER ON LEAVE OF ABSENCE WAS ON SEA OR SHORE DUTY:

AS A MATTER OF FACT, THE CLAIMANT WAS NOT ON DUTY ANY KIND, EITHER SEA OR SHORE, BUT IN A STATE SUSPENDED ACTIVITY, PERFORMING NO DUTY AND HAVING NO CARES OF OFFICE. THE VERY OBJECT OF A LEAVE IS THAT THE OFFICER SHALL BE FREE FROM THE RESPONSIBILITY OF DUTY.

IN ROBERTS V. THE UNITED STATES, 44 CT.CLS. 411, 418, THE CASE WAS PRESENTED OF A NAVAL CONSTRUCTOR WHO WAS GRANTED A LEAVE OF ABSENCE FOR 27 DAYS. THE QUESTION WAS WHETHER WHILE ON SUCH LEAVE HE WAS ENTITLED TO PAY AT THE RATE PRESCRIBED BY SECTION 1556, REVISED STATUTES, FOR NAVAL CONSTRUCTORS "WHEN ON DUTY" OR AT THE RATE PRESCRIBED BY THAT SECTION FOR SUCH OFFICER "WHEN ON LEAVE OR WAITING ORDERS," THE NAVY REGULATIONS PROVIDING THAT A TEMPORARY LEAVE OF ABSENCE DOES NOT DETACH AN OFFICER FROM DUTY NOR AFFECT HIS RATE OF PAY, AND IT WAS STATED:

* * * BUT WE DO NOT UNDERSTAND THAT THERE HAS BEEN ANY SUCH INTERPRETATION OF THIS REGULATION AS WILL ADMIT OF DUTY PAY FOR A TEMPORARY LEAVE OF ABSENCE OBTAINED FOR A NAVAL CONSTRUCTOR'S CONVENIENCE AND PLEASURE AT HIS OWN REQUEST AND PRESUMABLY FOR HIS OWN BENEFIT. SUCH ABSENCE SO INTERRUPTS THE DUTY STATUS AS TO INTERFERE WITH THE CONTINUANCE OF DUTY PAY. UNDER SUCH CIRCUMSTANCES THE LEAVE OF ABSENCE DOES DETACH AN OFFICER FROM DUTY, AND IF THERE BE ANY DIFFERENT CONTEMPORANEOUS CONSTRUCTION, AS CLAIMED BY COUNSEL, SUCH CONSTRUCTION CAN NOT HAVE THE EFFECT OF ENABLING SUCH NAVAL CONSTRUCTOR TO DRAW DUTY PAY WHEN IN FACT HE PERFORMS NO DUTY AND HAS NO RESPONSIBILITY DURING SUCH TEMPORARY ABSENCE.

SEE ALSO 12 COMP. DEC. 74. IN 15 COMP. DEC. 656 IT WAS HELD THAT OFFICERS OF THE NAVY GRANTED TEMPORARY LEAVE OF ABSENCE FROM THEIR SHIP ARE NOT, DURING ABSENCE ON SUCH LEAVE, ON "SEA DUTY" AND THEREFORE ARE NOT ENTITLED UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, TO THE 10 PERCENT ADDITIONAL PAY THEREIN AUTHORIZED FOR OFFICERS "WHILE SO SERVING.'

IN THIS CASE THE LEAVE OF ABSENCE GRANTED TO COMMANDER BYRD, ALTHOUGH IT CONTEMPLATES THAT HE SHALL RETURN TO ACTIVE DUTY WHEN THE LEAVE SHALL HAVE EXPIRED, RELIEVES HIM FOR THE TIME BEING OF ANY DUTY. DURING THE PERIOD OF THIS LEAVE HE IS, AS A MATTER OF FACT,"NOT ON ACTIVE DUTY," AND ACCORDINGLY HE IS ENTITLED TO THE PAY PROVIDED BY LAW FOR A RETIRED OFFICER "WHEN NOT ON ACTIVE DUTY" GENERALLY REFERRED TO AS RETIRED PAY.

AS SHOWN ABOVE HIS RETIRED PAY UNDER THE ACT OF JANUARY 5, 1927, IS AT THE RATE OF $4,312.50 PER ANNUM.

YOU STATE THAT HE HAS BEEN PAID WHILE ON SAID LEAVE FROM APRIL 2, 1926, AT THE RATE OF $2,700 PER ANNUM, THE RETIRED PAY OF A LIEUTENANT COMMANDER AFTER 12 YEARS' SERVICE. YOU ARE THEREFORE AUTHORIZED TO PAY HIM FOR THE PERIOD BEGINNING MAY 9, 1926, AND SO LONG AS HE CONTINUES ON LEAVE, AT THE RATE OF $4,312.50 PER ANNUM LESS THE AMOUNT HE HAS RECEIVED FOR SUCH PERIOD.

THE DECISIONS REFERRED TO, 11 COMP. DEC. 376, AND 2 COMP. GEN. 333, APPEAR NOT TO BE IN HARMONY WITH THE OTHER DECISIONS CITED AS TO THE EFFECT OF A LEAVE OF ABSENCE ON PAY WHEN THE RATE OF PAY IS DEPENDENT ON THE OFFICER BEING ON DUTY OR NOT ON DUTY AND WILL NOT BE FOLLOWED HEREAFTER.