B-51749, NOVEMBER 15, 1946, 26 COMP. GEN. 323

B-51749, NOVEMBER 15, 1946, 26 COMP. GEN. 323

PAY - RETIRED - LONGEVITY CREDITS -INACTIVE TIME ON RETIRED LIST A REGULAR ARMY OFFICER ON THE RETIRED LIST FOR PHYSICAL DISABILITY WHO, BECAUSE OF ADDITIONAL PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY IN A TEMPORARY HIGHER GRADE, WAS PROMOTED ON THE RETIRED LIST PURSUANT TO SECTION 4 OF THE ACT OF JUNE 29, 1943, TO SUCH HIGHER GRADE, WITH RETIRED PAY COMPUTED "AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE," IS NOT ENTITLED TO INCLUDE INACTIVE TIME ON THE RETIRED LIST--- WHICH WAS INCLUDED FOR ACTIVE-DUTY PAY PURPOSES--- IN THE COMPUTATION OF HIS RETIRED PAY UNDER THE APPLICABLE GENERAL STATUTES (SECTION 1274, REVISED STATUTES; SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942).

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, NOVEMBER 15, 1946:

THERE HAS BEEN RECEIVED BY INDORSEMENT DATED AUGUST 11, 1945, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, YOUR LETTER OF JULY 27, 1945, AS FOLLOWS:

1. ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $700.50, COVERING DIFFERENCE IN RETIRED PAY TO MAJOR DONALD F. CARROLL, 10-12175 AND MAJOR JOHN BENJAMIN HOLMBERG, O-8267, WHICH IS BEFORE AND UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT. THE DIFFERENCE IN RETIRED PAY CLAIMED ON THIS VOUCHER IS FOR LONGEVITY ON ACCOUNT OF INACTIVE TIME ON THE RETIRED LIST. IT APPEARS THAT MAJOR CARROLL WAS RETIRED 1 APRIL 1926, WAS RECALLED TO ACTIVE DUTY 12 JANUARY 1942 AND RELIEVED FROM ACTIVE DUTY 24 MARCH 1945. MAJOR HOLMBERG WAS RETIRED 30 OCTOBER 1922 AND RECALLED TO ACTIVE DUTY 11 SEPTEMBER 1942 AND WAS RELIEVED FROM ACTIVE DUTY 9 MARCH 1945. EACH OFFICER WAS ORIGINALLY RETIRED DUE TO DISABILITY IN LINE OF DUTY AND WERE ADVANCED ON THE RETIRED LIST UNDER SECTION 4 OF THE ACT OF 29 JUNE 1943, HAVING INCURRED AN ADDITIONAL PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENTUM, INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE TEMPORARY GRADE OF MAJOR.

2. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THESE OFFICERS ARE ENTITLED TO RETIRED PAY OF 75 PERCENT OF THEIR ACTIVE PAY BEING RECEIVED AT THE TIME OF RETIREMENT, WHICH WOULD INCLUDE INACTIVE TIME ON THE RETIRED LIST. IT IS REQUESTED THAT HIS VOUCHER BE FORWARDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR ADVANCE DECISION IN THE MATTER.

IT APPEARS THAT MAJOR CARROLL WAS APPOINTED SECOND LIEUTENANT, INFANTRY, REGULAR ARMY, NOVEMBER 1, 1918; THAT HE WAS TRANSFERRED TO THE FIELD ARTILLERY IN THE GRADE OF FIRST LIEUTENANT APRIL 10, 1924; AND THAT HE WAS RETIRED, BY REASON OF PHYSICAL DISABILITY, INCURRED IN LINE OF DUTY, APRIL 1, 1926. IT FURTHER APPEARS THAT HE WAS RECALLED TO ACTIVE DUTY JANUARY 12, 1942; THAT HE WAS APPOINTED CAPTAIN, ARMY OF THE UNITED STATES, JULY 15, 1942, AND MAJOR, ARMY OF THE UNITED STATES, JUNE 16, 1943; THAT HE WAS PROMOTED TO THE GRADE OF MAJOR ON THE RETIRED LIST DECEMBER 23, 1943; AND THAT HE WAS RELIEVED FROM ACTIVE DUTY MARCH 24, 1945. THUS, THE OFFICER COMPLETED 7 YEARS, 5 MONTHS' SERVICE PRIOR TO RETIREMENT; WAS ON THE RETIRED LIST, INACTIVE, FOR 15 YEARS, 9 MONTHS, 11 DAYS, AND, SUBSEQUENT TO RETIREMENT, WAS ON ACTIVE DUTY FOR 3 YEARS, 2 MONTHS, 13 DAYS. HE HAS BEEN PAID RETIRED PAY AS A MAJOR WITH OVER 9 YEARS' SERVICE--- CREDIT BEING GIVEN FOR SERVICE PRIOR TO RETIREMENT AND ACTIVE DUTY SINCE RETIREMENT--- THAT IS, 75 PERCENTUM OF PAY OF THE FOURTH PERIOD, INCREASED 15 PERCENTUM FOR LONGEVITY, OR $215.62 PER MONTH, FOR THE PERIOD MARCH 25, 1945, TO JUNE 30, 1945. HE CLAIMS RETIRED PAY AS A MAJOR WITH OVER 24 YEARS' SERVICE -- BY INCLUDING CREDIT FOR HIS INACTIVE TIME ON THE RETIRED LIST--- THAT IS, 75 PERCENTUM OF PAY OF THE FIFTH PERIOD INCREASED 40 PERCENTUM FOR LONGEVITY, OR $306.25 PER MONTH.

IT APPEARS THAT MAJOR HOLMBERG ENLISTED AND SERVED WITH THE FIRST COMPANY, RESERVE OFFICERS' TRAINING CORPS, MAY 16, 1917, TO AUGUST 14, 1917, WHEN HE WAS HONORABLY DISCHARGED TO ACCEPT A COMMISSION IN THE OFFICERS' RESERVE CORPS; THAT HE WAS APPOINTED SECOND LIEUTENANT, FIELD ARTILLERY, OFFICERS' RESERVE CORPS, AUGUST 15, 1917, AND WAS HONORABLY DISCHARGED OCTOBER 27, 1919; THAT HE WAS APPOINTED FIRST LIEUTENANT, FIELD ARTILLERY, OFFICERS' RESERVE CORPS, FEBRUARY 14, 1920, ACCEPTED MARCH 22, 1920, AND THAT THIS COMMISSION WAS VACATED UPON HIS ACCEPTANCE SEPTEMBER 4, 1920, OF APPOINTMENT AS SECOND LIEUTENANT, AIR SERVICE, REGULAR ARMY. IT FURTHER APPEARS THAT HE WAS PROMOTED TO CAPTAIN, REGULAR ARMY, TO RANK FROM JULY 1, 1920, AND THAT HE WAS RETIRED, BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, OCTOBER 30, 1922. HE WAS RECALLED TO ACTIVE DUTY SEPTEMBER 11, 1942; APPOINTED MAJOR, ARMY OF THE UNITED STATES, OCTOBER 27, 1943; PROMOTED TO THE GRADE OF MAJOR ON THE RETIRED LIST FEBRUARY 12, 1945; AND WAS RELIEVED FROM ACTIVE DUTY MARCH 9, 1945. THUS, UNDER PRESENT PERTINENT STATUTES, THE OFFICER IS ENTITLED TO CREDIT, FOR LONGEVITY PURPOSES, OF 5 YEARS AND 21 DAYS' SERVICE AT RETIREMENT; WAS ON THE RETIRED LIST, INACTIVE, FOR 19 YEARS, 10 MONTHS, 10 DAYS; AND SUBSEQUENT TO RETIREMENT WAS ON ACTIVE DUTY FOR 2 YEARS, 5 MONTHS, 29 DAYS. HE HAS BEEN PAID RETIRED PAY AS A MAJOR WITH OVER 6 YEARS' SERVICE- -- CREDIT BEING GIVEN FOR SERVICE PRIOR TO RETIREMENT AND ACTIVE DUTY SINCE RETIREMENT--- THAT IS, 75 PERCENTUM OF PAY OF THE FOURTH PERIOD, INCREASED 10 PERCENTUM FOR LONGEVITY, OR $206.25 PER MONTH FOR THE PERIOD MARCH 10, 1945, TO JUNE 30, 1945. HE CLAIMS RETIRED PAY AS A MAJOR WITH OVER 27 YEARS' SERVICE--- BY INCLUDING CREDIT FOR HIS INACTIVE TIME ON THE RETIRED LIST--- THAT IS, 75 PERCENTUM OF PAY OF THE FIFTH PERIOD, INCREASED 45 PERCENTUM FOR LONGEVITY, OR $317.19 PER MONTH.

ATTACHED TO THE SUPPLEMENTAL VOUCHER ARE LETTERS FROM THE TWO OFFICERS CONCERNED IN WHICH THE CONTENTION IS MADE THAT AUTHORITY FOR PAYMENT OF RETIRED PAY IN THEIR HIGHER RANK, INCLUDING IN THE COMPUTATION OF SUCH RETIRED PAY LONGEVITY AND PERIOD PAY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST BETWEEN THE DATE OF RETIREMENT AND DATE OF ULTIMATE RELEASE FROM ACTIVE DUTY, IS CONTAINED IN THE LAST PARAGRAPH OF SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, 368. ALSO, THEY HAVE ADVANCED THE THEORY THAT THEIR "RETIREMENT" WAS EFFECTED UNDER SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249.

SECTIONS 1251 AND 1274 OF THE REVISED STATUTES, 10 U.S.C. 933, 971, PROVIDE AS FOLLOWS:

SEC. 1251. WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, SAID OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE LIST OF RETIRED OFFICERS.

SEC. 1274. OFFICERS RETIRED FROM ACTIVE SERVICE SHALL RECEIVE 75 PERCENTUM OF THE PAY OF THE RANK UPON WHICH THEY ARE RETIRED.

THE OFFICIAL ARMY REGISTER, JANUARY 1, 1945, SHOWS THAT BOTH MAJOR CARROLL AND MAJOR HOLMBERG WERE RETIRED UNDER SECTION 1251, SUPRA.

SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, 10 U.S.C. 985C, PROVIDES AS FOLLOWS:

ANY OFFICER OF THE REGULAR ARMY ON THE RETIRED LIST WHO SHALL HAVE BEEN PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS ADDITIONAL PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE, BE PROMOTED ON THE RETIRED LIST TO SUCH HIGHER GRADE AND RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE: PROVIDED, THAT THE SECRETARY OF WAR, OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE, SHALL FIND THAT THE ADDITIONAL PHYSICAL DISABILITY IS INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER GRADE AND NOT LESS THAN 30 PERCENTUM PERMANENT.

IT APPEARS OBVIOUS THAT THE RETIREMENT OF THESE OFFICERS WAS EFFECTED LONG PRIOR TO THE ACT OF JUNE 29, 1943, AND THE CONTENTION THAT THEY WERE RETIRED UNDER THE PROVISIONS OF THAT ACT IS WITHOUT FOUNDATION. IF THIS WERE NOT SO, THERE WOULD BE NO AUTHORITY FOR APPLICATION OF THE PROVISIONS OF SAID SECTION 4 BECAUSE THIS SECTION COMPREHENDS ONLY "ANY OFFICER OF THE REGULAR ARMY ON THE RETIRED LIST," ETC. HAVING INCURRED ADDITIONAL PHYSICAL DISABILITY AS RETIRED OFFICERS WHILE SERVING UNDER TEMPORARY APPOINTMENTS IN HIGHER GRADE, THE PRECISE QUESTION IS WHETHER THE PHRASE CONTAINED IN SAID SECTION 4 THAT THEY SHALL "RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE" MANIFESTS A CLEAR PURPOSE AND INTENT TO INCLUDE IN THE COMPUTATION OF THEIR RETIRED PAY, SUBSEQUENT TO RELEASE FROM ACTIVE DUTY IN SUCH HIGHER GRADE, A PERCENTUM INCREASE FOR LONGEVITY AND ADVANCEMENT TO A HIGHER PAY PERIOD, BASED UPON INACTIVE TIME ON THE RETIRED LIST.

A CAREFUL EXAMINATION OF THE STATUTES IN PARI MATERIA DISCLOSES NO PURPOSE TO ATTRIBUTE TO THE QUOTED TERMS OF SAID SECTION 4 A MEANING WHICH WILL BESTOW UPON THE OFFICERS 75 PERCENTUM OF THE ACTIVE DUTY PAY WHICH THEY WERE RECEIVING WHILE SERVING IN SAID HIGHER TEMPORARY RANK OR GRADE IMMEDIATELY PRIOR TO RELEASE FROM ACTIVE DUTY. THE PHRASE "AS OTHERWISE PROVIDED BY LAW," CONTAINED IN SAID SECTION 4, NECESSARILY HAS REFERENCE TO AND REQUIRES APPLICATION OF THE GENERAL STATUTES WITH REGARD TO THE COMPUTATION OF RETIRED PAY OF RETIRED OFFICERS OF THE ARMY. AT THE TIME OF PASSAGE OF THE ACT OF JUNE 29, 1943, SUPRA, THERE HAD BEEN ENACTED, AND WAS THEN AND IS THE SUBSISTING LAW, IN ADDITION TO THE SECTIONS OF THE REVISED STATUTES REFERRED TO, THE PAY READJUSTMENT ACT OF 1942, SECTION 15 OF WHICH PROVIDES IN PERTINENT PART AS FOLLOWS (56 STAT. 367):

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS * * *.

IT IS TO BE OBSERVED THAT THE SAID SECTION 15 IS SPECIFIC IN RESTRICTING THE PAY INCREASES BOTH FOR LONGEVITY AND PERIOD PAY PURPOSES TO "ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT" WHICH REASONABLY AND NECESSARILY EXCLUDES INACTIVE TIME ON THE RETIRED LIST. INSOFAR AS LONGEVITY AND PERIOD PAY OF RETIRED OFFICERS IS CONCERNED, THE SAID SECTION 15 IS NOT A NEW PROVISION. SUBSTANTIALLY THE SAME PROVISION APPEARED IN THE ACT OF MAY 26, 1928, 45 STAT. 774, AMENDING SECTION 17 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 632, AND LONG PRIOR TO THAT PROVISION SUBSTANTIALLY THE SAME RESTRICTION AS TO LONGEVITY PAY, IN AFFIRMATIVE TERMS, WAS CONTAINED IN THE ACT OF MAY 12, 1917, 40 STAT. 48, 10 U.S.C. 974, AS FOLLOWS:

ACTIVE DUTY BY RETIRED OFFICER COUNTED IN COMPUTING RETIRED PAY.

ANY RETIRED OFFICER OF THE ARMY WHO HAS BEEN DETAILED TO ACTIVE DUTY AND WHO HAS SINCE HIS RETIREMENT SERVED ON ACTIVE DETAIL SHALL BE ENTITLED TO INCREASES OF LONGEVITY PAY, TO BE COMPUTED AS PROVIDED BY LAW FOR THE COMPUTATION OF LONGEVITY PAY, FOR THE TIME OF HIS SERVICE BEFORE RETIREMENT AND ON ACTIVE DETAIL SINCE HIS RETIREMENT. (ITALICS SUPPLIED.)

THUS, ALTHOUGH EXPRESS AUTHORITY IS CONTAINED IN SECTION 4 OF THE ACT OF JUNE 29, 1943, SUPRA, FOR THE COMPUTATION OF RETIRED PAY ON THE HIGHER GRADE HELD BY RETIRED OFFICERS COMING WITHIN ITS PROVISION, NO PROVISION IS APPARENT, EXPRESS OR IMPLIED, WITH RESPECT TO INCREASES IN RETIREMENT PAY FOR LONGEVITY OR PAY PERIOD PURPOSES BASED UPON INACTIVE TIME ON THE RETIRED LIST, AND INASMUCH AS THE GENERAL STATUTES PREVIOUSLY REFERRED TO NECESSARILY EXCLUDE ANY CHARACTER OF SERVICE BUT ACTIVE SERVICE FOR LONGEVITY OR PAY PERIOD PURPOSES SUBSEQUENT TO RETIREMENT, SUCH STATUTES ARE REQUIRED TO BE GIVEN EFFECT AND RECOGNIZED AS THE "LAW" CONTEMPLATED IN THE TERM "OTHERWISE PROVIDED BY LAW" CONTAINED IN SAID SECTION 4 OF THE ACT OF JUNE 29, 1943, IN THE ABSENCE OF SOME SPECIAL PROVISION WHICH MIGHT BE APPLICABLE. THIS OFFICE HAS HELD THAT UNDER SECTION 15 OF THE ACT OF JUNE 16, 1942, SUPRA, INACTIVE TIME ON THE RETIRED LIST MAY NOT BE INCLUDED IN THE COMPUTATION OF RETIRED PAY. SEE DECISION TO YOU DATED SEPTEMBER 20, 1943, B-36295; DECISION TO THE SECRETARY OF THE NAVY, DATED NOVEMBER 9, 1943, B-37397. THE ONLY OTHER PROVISION WHICH HAS BEEN CALLED TO ATTENTION AND OF WHICH THIS OFFICE HAS KNOWLEDGE IS THAT REFERRED TO BY THE TWO OFFICERS, NAMELY, THE LAST PARAGRAPH OF SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, WHICH PROVIDES AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

MAJOR CARROLL WAS RETIRED IN 1926 AND HAS CONTINUED TO BE A RETIRED OFFICER OF THE REGULAR ARMY SINCE THAT TIME; MAJOR HOLMBERG WAS RETIRED IN 1922 AND HAS CONTINUED TO BE A RETIRED OFFICER OF THE REGULAR ARMY SINCE THAT TIME. THE PROVISIONS OF THE LAST PARAGRAPH OF SECTION 15 OF THE ACT OF JUNE 16, 1942, HEREINBEFORE QUOTED, ARE RESTRICTED TO OFFICERS "HEREAFTER RETIRED," THAT IS, RETIRED ON OR AFTER JUNE 1, 1942, THE EFFECTIVE DATE OF SAID ACT. SUCH PROVISIONS HAVE NO APPLICATION HERE. THIS RESPECT, MOREOVER, SUCH PROVISION, EVEN IF PERTINENT, WOULD CONFER NO ADDITIONAL RETIRED PAY BENEFITS UPON THE OFFICERS FOR THE REASON THAT THEY PRESUMABLY ARE IN RECEIPT OF MORE THAN 75 PERCENTUM OF THE ACTIVE DUTY PAY WHICH THEY WERE RECEIVING AT THE TIME OF THEIR RESPECTIVE RETIREMENT. ACCORDINGLY, IT MUST BE HELD THAT OFFICERS PROMOTED TO HIGHER GRADES ON THE RETIRED LIST ARE NOT ENTITLED UNDER SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, IN THE COMPUTATION OF THEIR RETIRED PAY IN SUCH HIGHER GRADES TO INCLUDE INACTIVE TIME ON THE RETIRED LIST. PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.