A-22003, MAY 19, 1928, 7 COMP. GEN. 735

A-22003, MAY 19, 1928, 7 COMP. GEN. 735

PAY - RETIRED - LONGEVITY - ARMY OFFICER AN OFFICER OF THE ARMY RETIRED MAY 2, 1922, FOR WOUNDS RECEIVED IN BATTLE AFTER LESS THAN 11 YEARS OF SERVICE IS ENTITLED TO INCREASED LONGEVITY PAY UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, AND THE ACT OF MARCH 2, 1903, 32 STAT. 932. AN OFFICER OF THE ARMY RETIRED MAY 2, 1922, FOR WOUNDS RECEIVED IN BATTLE AFTER LESS THAN 11 YEARS OF SERVICE IS NOT ENTITLED TO HAVE HIS BASE OR PERIOD PAY UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE ACT OF MARCH 2, 1903, 32 STAT. 932, AND THE ACT OF MAY 8, 1926, 44 STAT. 417, COMPUTED ON THE BASIS OF TIME ON THE RETIRED LIST, SUCH INCREASE IN BASE OR PERIOD PAY BEING A PROMOTION. THE LONGEVITY PAY THAT MAY ACCRUE TO AN OFFICER OF THE ARMY AFTER RETIREMENT WHEN RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE PURSUANT TO THE ACT OF MARCH 2, 1903, 32 STAT. 932, IS SOLELY THE PERCENTAGE INCREASE OF PAY ON BASE PAY, AND DOES NOT INCLUDE ANY OTHER PAY EVEN THOUGH SUCH OTHER PAY MAY BE IN PART DEPENDENT UPON LENGTH OF SERVICE. THE ACT OF MARCH 2, 1903, 32 STAT. 932, PROVIDING THAT OFFICERS OF THE ARMY RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE SHALL CONTINUE TO BE CREDITED WITH INCREASES OF LONGEVITY PAY FOR TIME ON THE RETIRED LIST IS REPEALED BY THE FIRST SENTENCE OF THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS TO OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, BUT IS NOT REPEALED SO FAR AS OFFICERS IN THE SERVICE ON JUNE 30, 1922, MAY COME WITHIN ITS TERMS.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 19, 1928:

MAJ. JOHN S. JADWIN, UNITED STATES ARMY (RETIRED), HAS REQUESTED REVIEW OF SETTLEMENT, CLAIM NO. 0180211, DECEMBER 5, 1927, BY WHICH WAS DISALLOWED HIS CLAIM UNDER THE ACT OF MARCH 2, 1903, 32 STAT. 932, FOR INCREASED RETIRED PAY BASED UPON LONGEVITY SINCE RETIREMENT BECAUSE OF HAVING BEEN RETIRED FOR WOUNDS RECEIVED IN BATTLE.

THE OFFICER'S CLAIM WAS FOR LONGEVITY AS AUTHORIZED BY THE ACT OF MAY 11, 1908, 35 STAT. 108. THE ARMY REGISTER FOR 1928 SHOWS THE OFFICER HAD SERVICE AS A PRIVATE, CORPORAL, SERGEANT, QUARTERMASTER SERGEANT, AND FIRST SERGEANT, TROOP C, FOURTEENTH CAVALRY, AND TROOP C, SIXTEENTH CAVALRY, NOVEMBER 25, 1911, TO DECEMBER 2, 1916; SECOND AND FIRST LIEUTENANT OF CAVALRY, DECEMBER 3, 1916; CAPTAIN, TEMPORARY, AUGUST 5, 1917; CAPTAIN, OCTOBER 4, 1917; AND THAT PURSUANT TO THE ACT OF OCTOBER 1, 1890, 26 STAT. 562, HE WAS RETIRED WITH THE RANK OF MAJOR MAY 2, 1922, WITH A MARGINAL NOTE THAT HE WAS RETIRED FOR "DISABILITY FROM WOUNDS RECEIVED IN BATTLE.' THE ACT OF 1890, LAST CITED, PROVIDES FOR THE EXAMINATION FOR PROMOTION OF OFFICERS OF THE ARMY BELOW THE RANK OF MAJOR, WITH A PROVISO---

* * * THAT SHOULD THE OFFICER FAIL IN HIS PHYSICAL EXAMINATION AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY HE SHALL BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED; * * *

THE OFFICER BEING A CAPTAIN AND HAVING BEEN FOUND PHYSICALLY INCAPACITATED BY REASON OF DISABILITY CONTRACTED IN THE LINE OF DUTY, HE WAS PLACED ON THE RETIRED LIST IN THE GRADE OF MAJOR, ON RETIREMENT HE HAD 10 YEARS, 5 MONTHS, AND 8 DAYS SERVICE, AND ON NOVEMBER 24, 1926, HIS TOTAL SERVICE, INCLUDING ACTIVE SERVICE AND TIME ON THE RETIRED LIST, WAS 15 YEARS. HE CLAIMED RETIRED PAY BASED ON THE PAY OF A MAJOR UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, INCREASED BY 30 PERCENT, OR THREE- FOURTHS OF $3,900, $2,925 PER ANNUM. THE CLAIM WAS DISALLOWED IN THE CLAIMS SETTLEMENT ON THE VIEW THAT THE ACT OF MARCH 2, 1903, 32 STAT. 932, HAD BEEN REPEALED AND THAT THE OFFICER NOT BEING ENTITLED UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS EXTENDED TO OFFICERS ON THE RETIRED LIST JUNE 30, 1922, BY THE ACT OF MAY 8, 1926, 44 STAT. 417, TO A GREATER RATE OF PAY THAN HE HAD THERETOFORE RECEIVED, WAS NOT ENTITLED TO INCREASED RETIRED PAY.

THE VIEW THAT THE ACT OF 1903 WAS REPEALED IS SUGGESTED BY REASON OF THE OMISSION OF THAT PROVISION FROM "THE CODE OF THE LAWS OF THE UNITED STATES OF AMERICA" ADOPTED UNDER THE AUTHORITY OF CONGRESS BY PUBLIC ACT NO. 440, JUNE 30, 1926. THAT ACT PROVIDES BY SECTION 2:

IN ALL COURTS, TRIBUNALS, AND PUBLIC OFFICES OF THE UNITED STATES, AT HOME OR ABROAD, OF THE DISTRICT OF COLUMBIA, AND OF EACH STATE, TERRITORY, OR INSULAR POSSESSION OF THE UNITED STATES---

(A) THE MATTER SET FORTH IN THE CODE, EVIDENCED AS HEREINAFTER IN THIS SECTION PROVIDED, SHALL ESTABLISH PRIMA FACIE THE LAWS OF THE UNITED STATES, GENERAL AND PERMANENT IN THEIR NATURE, IN FORCE ON THE 7TH DAY OF DECEMBER, 1925; BUT NOTHING IN THIS ACT SHALL BE CONSTRUED AS REPEALING OR AMENDING ANY SUCH LAW, OR AS ENACTING AS NEW LAW ANY MATTER CONTAINED IN THE CODE. IN CASE OF ANY INCONSISTENCY ARISING THROUGH OMISSION OR OTHERWISE BETWEEN THE PROVISIONS OF ANY SECTION OF THIS CODE AND THE CORRESPONDING PORTION OF LEGISLATION HERETOFORE ENACTED EFFECT SHALL BE GIVEN FOR ALL PURPOSES WHATSOEVER TO SUCH ENACTMENTS.

IF THERE WERE THEN ANY REAL QUESTION OF THE CODE BEING THE LAW INSTEAD OF THE PARTICULAR STATUTES AS THEY APPEAR IN THE STATUTES AT LARGE AND IN THE REVISED STATUTES OF THE UNITED STATES OF 1874, AS AMENDED, THE FAILURE TO INCLUDE THE 1903 PROVISION IN THE CODE WOULD PROPERLY BE CONSIDERED AS AN INADVERTENT OMISSION, THE CODE REQUIRING THAT EFFECT SHALL BE GIVEN TO THE OMITTED PROVISION FOR ALL PURPOSES WHATSOEVER.

CERTAIN PROVISIONS OF SECTIONS 24 TO 24E, INCLUSIVE, OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 771, ET SEQ., HAVE PROBABLY HAD THE EFFECT OF REPEALING CERTAIN PROVISIONS FOR THE RETIREMENT OF OFFICERS OF THE ARMY. THE SECTIONS PRIMARILY DEAL WITH THE APPOINTMENT AND SEPARATION OF OFFICERS EITHER FROM THE ARMY OR FROM THE ACTIVE LIST. BY SECTION 24B A BASIS FOR RETIREMENT PAY FOR OFFICERS RETIRED BECAUSE OF HAVING BEEN PLACED IN CLASS B IS SET UP DIFFERENTLY FROM THAT FORMERLY IN EFFECT. THERE IS LANGUAGE IN THAT SECTION THAT IS SUFFICIENTLY INCLUSIVE TO PERMIT AN INTERPRETATION THAT ALL OFFICERS OF THE ARMY WHO SHOULD NOT BE RETAINED IN THE SERVICE SHOULD BE PLACED IN CLASS B AND THAT IF FINALLY SO CLASSIFIED THEY SHALL BE SEPARATED FROM THE ACTIVE LIST UNDER THE TERMS OF THAT SECTION.

WHILE THE ACT OF 1890 WAS LIMITED IN ITS REQUIREMENTS AS TO EXAMINATION AND PROMOTION TO OFFICERS BELOW THE GRADE OF MAJOR, SECTION 24 OF THE ACT OF JUNE 3, 1916, 39 STAT. 183, PROVIDED:

* * * THAT THE PROVISIONS OF EXISTING LAWS REQUIRING EXAMINATIONS TO DETERMINE FITNESS FOR PROMOTION OF OFFICERS OF THE ARMY ARE HEREBY EXTENDED TO INCLUDE PROMOTIONS TO ALL GRADES BELOW THAT OF BRIGADIER GENERAL * * *

THE ACT OF 1890 CLEARLY INDICATED THAT A PHYSICAL EXAMINATION AS WELL AS A PROFESSIONAL EXAMINATION WAS CONTEMPLATED AND THIS WAS THE CONTEMPORANEOUS AND CONTINUED INTERPRETATION.

BY SECTION 24C OF THE NATIONAL DEFENSE ACT, AS AMENDED, IT WAS PROVIDED:

ON AND AFTER JULY 1, 1920, VACANCIES IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE FILLED BY THE PROMOTION OF OFFICERS IN THE ORDER IN WHICH THEY STAND ON THE PROMOTION LIST, WITHOUT REGARD TO THE BRANCHES IN WHICH THEY ARE COMMISSIONED. EXISTING LAWS PROVIDING FOR THE EXAMINATION OF OFFICERS FOR PROMOTION ARE HEREBY REPEALED, EXCEPT THOSE RELATING TO PHYSICAL EXAMINATION, WHICH SHALL CONTINUE TO BE REQUIRED FOR PROMOTION TO ALL GRADES BELOW THAT OF BRIGADIER GENERAL, * * *

THERE IS A PROVISION IN SECTION 24, AS AMENDED BY THE ACT OF JUNE 4, 1920, PROVIDING A DIFFERENT BASIS OF RETIRED PAY FOR EMERGENCY OFFICERS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THAT ACT WHO WERE MORE THAN 45 YEARS OF AGE WHEN APPOINTED AND WHICH WAS CONSTRUED BY THIS OFFICE AS APPLICABLE TO SUCH OFFICERS WHETHER RETIRED FOR AGE OR OTHER CAUSE OR FOR PHYSICAL DISABILITY. THAT SECTION IN SO FAR AS IT RELATES TO THE "45-YEAR-OLD" OFFICERS WAS AMENDED BY THE ACT OF MAY 19, 1926, 44 STAT. 564, BY ADDING A PROVISO---

* * * THAT ANY OFFICER SO APPOINTED, WHO HAS BEEN OR MAY HEREAFTER BE RETIRED IN ACCORDANCE WITH LAW ON ACCOUNT OF PHYSICAL DISABILITY INCIDENT TO THE SERVICE, SHALL RECEIVE, FROM THE DATE OF SUCH RETIREMENT, RETIRED PAY AT THE RATE OF 75 PERCENTUM OF HIS ACTIVE PAY AT THE TIME OF SUCH RETIREMENT.

IT WOULD APPEAR THAT THE ACT OF 1890, AS AMENDED BY THE ACT OF 1916, SO FAR AS IT REQUIRES A PHYSICAL EXAMINATION FOR OFFICERS OF THE ARMY ON PROMOTION, AS WELL AS THE PROVISION THAT IF OFFICERS BELOW THE GRADE OF MAJOR ON SUCH EXAMINATION ARE FOUND DISQUALIFIED FOR PROMOTION ON EXAMINATION BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY, THEY SHALL BE RETIRED WITH THE RANK TO WHICH THEIR SENIORITY ENTITLED THEM TO BE PROMOTED, WAS NOT REPEALED BY THE PROVISIONS OF SECTION 24 TO 24E OF THE NATIONAL DEFENSE ACT, AS AMENDED; NOR DO THESE PROVISIONS SEEM TO BE INCONSISTENT WITH THE PROVISION GRANTING TO OFFICERS RETIRED FOR WOUNDS RECEIVED IN BATTLE THE RIGHT TO COUNT TIME ON THE RETIRED LIST FOR INCREASE OF LONGEVITY PAY.

BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, A NEW PAY SCALE WAS ADOPTED FOR OFFICERS OF THE ARMY. PAY PERIODS WERE PROVIDED FOR OFFICERS FROM SECOND LIEUTENANT TO COLONEL, INCLUSIVE, AND BY THE TENTH AND ELEVENTH PARAGRAPHS OF SECTION 1, AND THE FIRST SENTENCE OF SECTION 17 OF THE ACT IT WAS PROVIDED:

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: * * * NOTHING CONTAINED IN THE FIRST SENTENCE OF SECTION 17 OR IN ANY OTHER SECTION OF THIS ACT SHALL AUTHORIZE AN INCREASE IN THE PAY OF OFFICERS OR WARRANT OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922.

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME; AND ALSO 75 PERCENTUM OF ALL OTHER PERIODS OF TIME DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE ORGANIZED MILITIA BETWEEN JANUARY 21, 1903, AND JULY 1, 1916, OR OF THE NATIONAL GUARD, THE NAVAL MILITIA, OR THE NATIONAL NAVAL VOLUNTEERS SINCE JUNE 3, 1916, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME, SHALL BE INCLUDED IN THE COMPUTATION.

SEC. 17. THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT:* * *

THE VIEW THAT THE ACT OF 1903 IS REPEALED IS APPARENTLY BASED ON THE FIRST SENTENCE OF THE ELEVENTH PARAGRAPH OF SECTION 1 OF THIS ACT. THE SERVICE TO BE COUNTED BY OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, IS SPECIFICALLY LIMITED TO ACTIVE COMMISSIONED SERVICE-- AN OFFICER'S RETIREMENT RELIEVES HIM FROM ACTIVE COMMISSIONED SERVICE. THE CITED PROVISION RELATES ONLY TO OFFICERS APPOINTED ON AND AFTER JULY 1, 1922. THE SECOND SENTENCE OF THE ELEVENTH PARAGRAPH SETS UP A DIFFERENT RULE AS TO OFFICERS THEN IN THE SERVICE--- ALL SERVICE THEN COUNTED IN COMPUTING LONGEVITY PAY IS REQUIRED TO BE INCLUDED; AND OFFICERS ON THE RETIRED LIST JUNE 30, 1922, WERE "IN THE SERVICE.' THE LAWS AS TO SERVICE WHICH MAY BE COUNTED FOR PAY INCONSISTENT WITH, AND THEREFORE REPEALED BY, THE FIRST SENTENCE OF THE ELEVENTH PARAGRAPH, ARE NEVERTHELESS STILL EFFECTIVE AS TO OFFICERS IN THE SERVICE JUNE 30, 1922. BY THE LAST SENTENCE OF THE TENTH PARAGRAPH, QUOTED ABOVE, HOWEVER, NO PROVISIONS IN THE ACT WERE APPLICABLE TO OFFICERS ON THE RETIRED LIST JUNE 30, 1922, WHICH THUS INCLUDES CLAIMANT, AND HIS CLAIM IS ASSERTED UNDER THE PROVISIONS OF THE ACT OF MAY 8, 1926, 44 STAT. 417, WHICH PROVIDES:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WHO WERE RETIRED ON OR BEFORE JUNE 30, 1922, SHALL NOT BE LESS THAN THAT PROVIDED FOR THE OFFICERS AND WARRANT OFFICERS OF THE SERVICES OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED, THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER OR WARRANT OFFICER NOW ON THE RETIRED LIST.

SEC. 2. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

SO FAR AS THESE VARIOUS ACTS ARE CONCERNED THEY LEAVE THE OFFICER RETIRED ON OR PRIOR TO JUNE 30, 1922, ENTITLED TO RETIRED PAY COMPUTED UNDER THE LAWS IN EFFECT PRIOR TO JULY 1, 1922, BUT UNDER THE ACT OF MAY 8, 1926, IF THE PAY OF AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE RETIRED AFTER JUNE 30, 1922, IS GREATER UNDER THE ACT OF JUNE 10, 1922, THE OFFICER RETIRED PRIOR TO JULY 1, 1922, IS TO BE PAID SUCH GREATER RATE--- BECAUSE THE REQUIREMENT OF THE ACT OF 1926 IS THAT SUCH OFFICER'S RETIRED PAY SHALL NOT BE LESS THAN THAT OF AN EQUAL OFFICER RETIRED SUBSEQUENT TO JUNE 30, 1922.

THE SETTLEMENT WAS IN ERROR SO FAR AS IT DENIED CLAIMANT, AN OFFICER RETIRED PRIOR TO JUNE 30, 1922, BECAUSE OF WOUNDS RECEIVED IN BATTLE, INCREASED LONGEVITY PAY UNDER THE ACT OF MAY 11, 1908, BASED ON HIS ACTIVE SERVICE AND TIME ON THE RETIRED LIST.

HOWEVER, THE OFFICER IN HIS REQUEST FOR REVIEW CLAIMS PAY UNDER THE ACT OF JUNE 10, 1922, AND THE ACT OF 1903, WHICH ON THE BASIS OF HIS CALCULATIONS TO INCLUDE TIME ON THE RETIRED LIST TO ADVANCE HIS PERIOD OR BASE PAY, ALTHOUGH NOW LESS THAN THE AMOUNT HE IS ENTITLED TO UNDER THE ACT OF 1908, WILL ULTIMATELY OPERATE TO MUCH GREATER BENEFIT TO HIM, AND HIS CONTENTION FOR PAY UNDER THE ACT OF 1922 IS ENERGETICALLY STRESSED. THAT IS, NOT ONLY DOES HE ASK FOR THE 5 PERCENT INCREASE INCLUSIVE OF THE TIME ON THE RETIRED LIST FOR EACH THREE YEARS BUT ARGUES THAT HE IS ENTITLED TO PERIOD OR BASE PAY COUNTING TIME ON THE RETIRED LIST FOR THE PURPOSE OF DETERMINING HIS PERIOD PAY AND BY THIS METHOD HE SHOULD BE PAID BASE PAY AS A MAJOR OF OVER 14 BUT LESS THAN 23 YEARS' SERVICE WITH LONGEVITY INCREASE OF 15 YEARS FROM AND AFTER NOVEMBER 25, 1926. UNDER THE PRECISE TERMS OF THE ACT OF MAY 8, 1926, HE IS ONLY ENTITLED THERETO IF AN OFFICER RETIRED ON OR AFTER JULY 1, 1922, WITH THE SAME RANK AND LENGTH OF SERVICE AND RETIRED FOR THE SAME CAUSE WOULD BE ENTITLED TO THESE, AND THAT QUESTION WILL BE CONSIDERED. THE ACT OF MARCH 2, 1903, 32 STAT. 932, PROVIDES:

* * * HEREAFTER, EXCEPT IN CASE OF OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, NO OFFICER NOW ON THE RETIRED LIST SHALL BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY, AND OFFICERS HEREAFTER RETIRED, EXCEPT AS HEREIN PROVIDED, SHALL NOT BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY ABOVE THAT WHICH HAD ACCRUED AT DATE OF THEIR RETIREMENT.

SECTION 1 OF THE ACT OF JUNE 10, 1922, PRESCRIBED PAY PERIODS AND FIXES "THE BASE PAY FOR CH," THE FIRST BEING $1,500, THE SECOND $2,000, THE THIRD $2,400, THE FOURTH $3,000, THE FIFTH $3,500, AND THE SIXTH $4,000. EXCEPT AS TO THE FIRST PERIOD, THESE RATES ARE IDENTICAL WITH THE RATES FIXED BY THE ACT OF MAY 11, 1908, THE SECOND PERIOD BEING THE SAME AS FOR A FIRST LIEUTENANT, THE THIRD THAT OF CAPTAIN, THE FOURTH THAT OF MAJOR, THE FIFTH THAT OF LIEUTENANT COLONEL, AND THE SIXTH THAT OF COLONEL.

LONGEVITY PAY, OR "FOGEY" PAY, AS THE LONGEVITY PAY IS CALLED (UNITED STATES V. NOCE, 268 U.S. 613, 618), SEEMS FIRST TO HAVE BEEN ESTABLISHED BY SECTION 15 OF THE ACT OF JULY 5, 1838, 5 STAT. 258, IN THE FORM OF INCREASED NUMBERS OF RATIONS, THE PROVISION BEING:

THAT EVERY COMMISSIONED OFFICER OF THE LINE OR STAFF EXCLUSIVE OF GENERAL OFFICERS SHALL BE ENTITLED TO RECEIVE ONE ADDITIONAL RATION PER DIEM FOR EVERY FIVE YEARS HE MAY HAVE SERVED OR SHALL SERVE IN THE ARMY OF THE UNITED STATES: * * *

THE COURT OF CLAIMS IN THE CASE OF SHERBURNE V. UNITED STATES, 16 CT.CLS. 491, 497, GIVES AN EXAMPLE OF THE PAY OF AN OFFICER OF THE ARMY PRIOR TO 1870 IN THE FOLLOWING LANGUAGE:

THUS, A CAPTAIN OF CAVALRY FORMERLY RECEIVED $70 PER MONTH, WHICH WAS HIS PAY, AND WAS FIXED, DIRECT, AND CERTAIN. HE ALSO RECEIVED $10 A MONTH IF IN THE ACTUAL COMMAND OF HIS COMPANY. HE ALSO WAS ENTITLED TO COMMUTATION FOR THE FORAGE OF TWO HORSES IF HE ACTUALLY HAD THEM IN SERVICE. HE ALSO WAS ENTITLED TO RATIONS FOR HIMSELF AND SERVANTS, AND TO LONGEVITY RATIONS AFTER CERTAIN PROLONGED PERIODS OF SERVICE; TO FUEL, TO QUARTERS, TO TRANSPORTATION, TO MILEAGE, AND TO STATIONERY. THESE WERE ALLOWANCES. SOME OF THEM, CONSIDERED AS COMPENSATION, WERE INDIRECT AND SOME CONTINGENT, BUT IN ALL INSTANCES THEY WERE SOMETHING GIVEN FOR SERVICE OR AS REIMBURSEMENT.

BY SECTION 24 OF THE ACT OF JULY 15, 1870, 16 STAT. 320, RATES OF PAY WERE PRESCRIBED FOR OFFICERS OF EACH GRADE OF THE ARMY IN LIEU OF AND SUBSTANTIALLY EQUIVALENT TO THE PAY AND THE NUMEROUS ALLOWANCES THERETOFORE PROVIDED, AND ESTABLISHED IN CONNECTION WITH THE VARIOUS RATES OF PAY THEREIN PROVIDED THE EQUIVALENT OF THE LONGEVITY RATIONS THERETOFORE AUTHORIZED, IN THE FOLLOWING LANGUAGE:

* * * AND THERE SHALL BE ALLOWED AND PAID TO EACH AND EVERY COMMISSIONED OFFICER BELOW THE RANK OF BRIGADIER GENERAL, INCLUDING CHAPLAINS AND OTHERS HAVING ASSIMILATED RANK OR PAY, TEN PERCENTUM OF THEIR CURRENT YEARLY PAY FOR EACH AND EVERY TERM OF FIVE YEARS OF SERVICE: PROVIDED, THAT THE TOTAL AMOUNT OF SUCH INCREASE FOR LENGTH OF SERVICE SHALL IN NO CASE EXCEED FORTY PERCENTUM ON THE YEARLY PAY OF HIS GRADE AS ESTABLISHED BY THIS ACT: AND PROVIDED FURTHER, THAT THE PAY OF A COLONEL SHALL IN NO CASE EXCEED FOUR THOUSAND FIVE HUNDRED DOLLARS PER ANNUM, NOR THE PAY OF A LIEUTENANT COLONEL FOUR THOUSAND DOLLARS PER ANNUM, AND THESE SUMS SHALL BE IN FULL OF ALL COMMUTATION OF QUARTERS, FUEL, FORAGE, SERVANTS' WAGES AND CLOTHING, LONGEVITY RATIONS, AND ALL ALLOWANCES OF EVERY NAME AND NATURE WHATEVER, AND SHALL BE PAID MONTHLY BY THE PAYMASTER: * * *

THE FOREGOING PROVISIONS OF THE ACT OF 1870 WERE CARRIED INTO THE REVISED STATUTES AS SECTIONS 1262, 1263, 1267, 1268, AND 1269. THESE PROVISIONS FOR LONGEVITY RATIONS OR LONGEVITY PAY (SO DENOMINATED BY STATUTE) WERE CONSTRUED BY THE WAR DEPARTMENT AND THE ACCOUNTING OFFICERS AS AUTHORIZING COUNTING FOR SUCH LONGEVITY RATIONS OR LONGEVITY PAY ONLY ACTIVE COMMISSIONED SERVICE IN THE REGULAR ARMY, AND THAT AN OFFICER AFTER RETIREMENT WAS ENTITLED TO NO FURTHER INCREASE OF LONGEVITY RATIONS OR PAY. THE ACT OF AUGUST 3, 1861, 12 STAT. 287, HAD PROVIDED BY SECTION 15 FOR THE RETIREMENT OF OFFICERS OF THE ARMY AND MARINE CORPS AFTER 40 YEARS' SERVICE "WITH THE PAY AND EMOLUMENTS ALLOWED BY THIS ACT," AND SECTION 16 PROVIDED FOR THE RETIREMENT OF OFFICERS OF THE ARMY AND MARINE CORPS FOR PHYSICAL DISABILITY WITH "THE PAY PROPER OF THE HIGHEST RANK HELD BY HIM AT THE TIME OF RETIREMENT, WHETHER BY STAFF OR REGIMENTAL COMMISSION, AND FOUR RATIONS PER DAY, AND WITHOUT ANY OTHER PAY, EMOLUMENT, OR ALLOWANCES.' THE ACT OF 1870 HAVING PROVIDED FOR A FIXED PAY WITH LONGEVITY INCREASE THEREON, FOR OFFICERS ON THE ACTIVE LIST, CONTAINED A PROVISION WHICH MADE THE PAY OF RETIRED OFFICERS UNIFORM (EXCEPT AS TO THE GENERAL OF THE ARMY) BY PROVIDING THAT ,OFFICERS RETIRED FROM ACTIVE SERVICE SHALL RECEIVE 75 PERCENTUM OF THE PAY OF THE RANK UPON WHICH THEY ARE RETIRED," AND THIS WAS CARRIED INTO THE REVISED STATUTES AS SECTION 1274.

IN THE CASE OF UNITED STATES V. TYLER, 105 U.S. 244, CONTRARY TO THE CONTEMPORANEOUS AND LONG-CONTINUED CONSTRUCTION AND PRACTICE UNDER SECTIONS 1262 AND 1274 OF THE REVISED STATUTES AND THE STATUTES IN PARI MATERIA PRECEDING THEM, THE SUPREME COURT HELD THAT A RETIRED OFFICER (WHO HAPPENED TO HAVE BEEN RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, BUT NO SPECIAL CONSIDERATION WAS ACCORDED HIM BECAUSE OF THAT FACT EITHER BY THE LAW OR IN THE OPINION OF THE COURT) WAS ENTITLED (1) TO COUNT FOR LONGEVITY INCREASE OF PAY THE TIME ON THE RETIRED LIST, AND (2) THAT THE WORDS "CURRENT YEARLY PAY" USED IN SECTION 1262, REVISED STATUTES, REQUIRED THAT LONGEVITY INCREASE SHOULD BE COMPUTED ON THE "ORIGINAL SALARY OF THE RANK AND ANY ADDITIONS OF 10 PERCENT PREVIOUSLY EARNED FOR PERIODS OF FIVE YEARS.' THE TYLER CASE WAS DECIDED IN 1881 AND WAS FOLLOWED BY THE ACT OF JUNE 30, 1882, 22 STAT. 118, WHICH PROVIDED THAT ON AND AFTER JULY 1, 1882, THE 10 PERCENT INCREASE OF PAY ALLOWED BY SECTION 1262, REVISED STATUTES, SHOULD BE COMPUTED ON THE YEARLY PAY OF THE GRADE AS FIXED BY THE SECTIONS 1261 AND 1274 OF THE REVISED STATUTES. THIS ACT WAS PASSED FOR THE EXPRESS PURPOSE OF COMMANDING A METHOD OF COMPUTATION WHICH WOULD RENDER INAPPLICABLE THE CONSTRUCTION ADOPTED IN THE TYLER CASE. PLUMMER V. UNITED STATES, 224 U.S. 137, 144. SO ALSO THE ACT OF 1903, ON WHICH THE CLAIM HERE CONSIDERED IS BASED, WAS PASSED TO OVERCOME THE OTHER ASPECT OF THE TYLER CASE, BUT OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE WERE SPECIFICALLY EXCEPTED FROM ITS TERMS. THAT ACT IT IS SPECIFICALLY PROVIDED THAT NO FURTHER INCREASE OF LONGEVITY PAY SHALL BE ALLOWED OR PAID. BY THE ACT OF MAY 11, 1908, 35 STAT. 108, NEW RATES OF BASE PAY WERE ESTABLISHED FOR OFFICERS OF THE ARMY TO WHICH THE 10 PERCENT INCREASE FIXED BY SECTION 1262 FOR EACH FIVE YEARS OF SERVICE APPLIED, BUT SECTION 1267 WAS MODIFIED BY A PROVISO IN THE ACT RAISING THE LIMIT OF PAY OF COLONELS, LIEUTENANT COLONELS, AND MAJORS TO $5,000, $4,500, AND $4,000, RESPECTIVELY. THE RATES OF PERMANENT PAY FIXED IN THE ACT OF 1908 CONTINUED IN EFFECT UNTIL THE ACT OF JUNE 10, 1922, WHICH, WHILE ADOPTING (EXCEPT AS TO SECOND LIEUTENANTS) THE RATES OF BASE PAY ESTABLISHED BY THE ACT OF 1908, PROVIDED FOR OFFICERS OF THE SAME RANK BUT WITH DIFFERENT LENGTHS OF SERVICE, DIFFERENT RATES OF BASE PAY, ESTABLISHING IN ALL GRADES TWO OR MORE RATES OF PAY FOR OFFICERS OF EACH GRADE OR RANK. THUS, FOR THE GRADE OF MAJOR, THE GRADE OF CLAIMANT HEREIN, THREE RATES OF PAY ARE PROVIDED AS FOLLOWS:

THE PAY OF THE FIFTH PERIOD SHALL BE PAID * * * TO MAJORS OF THE ARMY * * * WHO HAVE COMPLETED TWENTY-THREE YEARS' SERVICE, * * *.

THE PAY OF THE FOURTH PERIOD SHALL BE PAID * * * TO MAJORS OF THE ARMY * * * WHO HAVE COMPLETED FOURTEEN YEARS' SERVICE, * * *.

THE PAY OF THE THIRD PERIOD SHALL BE PAID TO MAJORS OF THE ARMY, * * * WHO ARE NOT ENTITLED TO THE PAY OF THE FOURTH, FIFTH, OR SIXTH PERIOD, * *

BY THE TENTH PARAGRAPH OF SECTION 1 OF THE ACT, THE LONGEVITY PAY, KNOWN IN THE ARMY SINCE 1838, WAS CONTINUED BUT AT A DIFFERENT RATE AND WITH A GREATER MAXIMUM INCREASE THAN ESTABLISHED IN THE 1870 ACT. THUS 5 PERCENT INCREASE FOR EACH THREE YEARS OF SERVICE, NOT EXCEEDING 50 PERCENT, WAS AUTHORIZED IN LIEU OF THE 10 PERCENT INCREASE FOR EACH FIVE YEARS OF SERVICE, NOT EXCEEDING 40 PERCENT, THERETOFORE AUTHORIZED.

THE 1903 ACT REFERS TO A SPECIFIC PORTION OF THE PAY OF AN OFFICER KNOWN AS "LONGEVITY PAY," SINCE 1870 THE PERCENTAGE INCREASE ON THE BASE PAY FIXED BY LAW, THE "FOGEY" PAY CONSIDERED BY THE SUPREME COURT IN THE NOCE CASE AND THE TYLER CASE, SUPRA. THE CONGRESS WAS NOT THEN CONSIDERING ALL PAY THAT MIGHT ACCRUE BY REASON OF LENGTH OF SERVICE BUT THE SPECIFIC PAY, KNOWN AND REFERRED TO AS "LONGEVITY PAY" BOTH COLLOQUIALLY AND IN THE STATUTES, WHICH THE SUPREME COURT HAD HELD IN THE TYLER CASE CONTINUED TO ACCRUE TO AN OFFICER AFTER HIS RETIREMENT AND WHICH BY THAT ACT IT WAS DIRECTED, EO NOMINE, SHOULD NOT ACCRUE TO AN OFFICER AFTER RETIREMENT EXCEPT WHERE RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE. THAT STATUTE GOES NO FURTHER THAN TO AUTHORIZE THE COUNTING OF 5 PERCENT FOR EACH THREE YEARS SERVICE OR TIME ON THE RETIRED LIST, NOT EXCEEDING 50 PERCENT, IF THE OFFICER WAS IN THE SERVICE JUNE 30, 1922, AND RETIRED SUBSEQUENT TO THAT DATE ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE. IT DOES NOT AUTHORIZE THE COUNTING OF TIME ON THE RETIRED LIST FOR ANY AND ALL PURPOSES OF LENGTH OF SERVICE IN CONNECTION WITH PAY.

BUT IT IS ARGUED THAT LENGTH OF SERVICE FOR PERIOD OR BASE PAY IS NO DIFFERENT IN CHARACTER FROM LENGTH OF SERVICE FOR THE PERCENTAGE INCREASE OF PAY, THAT THE TERM "LONGEVITY PAY" MEANS GENERALLY PAY DEPENDENT UPON LENGTH OF SERVICE. THIS OFFICE HAS UNIFORMLY HELD THAT THE ADVANCEMENT FROM ONE PAY PERIOD TO ANOTHER IS A PROMOTION WITHIN THE MEANING OF THAT PORTION OF SECTION 17 OF THE ACT OF JUNE 10, 1922, WHICH PROVIDES:

ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION * * *.

THIS CLAIM CHALLENGES THE SOUNDNESS OF THOSE DECISIONS, THE CONTENTION BEING, ADVANCEMENT FROM ONE PAY PERIOD TO ANOTHER IS NOT A PROMOTION, THE OFFICER'S RANK NOT BEING CHANGED, BUT AN INCREASE OF PAY FOR LENGTH OF SERVICE; THAT AN OFFICER RETIRED AFTER JUNE 30, 1922, ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE WOULD BE ENTITLED, UNDER THE ACT OF 1903, TO COUNT TIME ON THE RETIRED LIST FOR BASE PAY PURPOSES UNDER THAT ACT, AND THAT CLAIMANT HEREIN, UNDER THE ACT OF MAY 8, 1926, IS ENTITLED TO HAVE HIS PAY COMPUTED ON THE SAME BASIS.

IT IS TO BE NOTED, FIRST, THAT SECTION 1 OF THE ACT OF JUNE 10, 1922, ESPECIALLY IN VIEW OF THE LAST SENTENCE OF THE TENTH PARAGRAPH THEREOF, CLEARLY INDICATES THAT THE LEGISLATION WAS ADDRESSED TO OFFICERS ON THE ACTIVE LIST, THAT IT WAS FIXING PAY OF OFFICERS ON THE ACTIVE LIST WITH RELATION TO THEIR ACTIVE SERVICE, AND IN VIEW OF THE FIRST SENTENCE OF SECTION 17 THE PROVISIONS OF SECTION 1 ARE INAPPLICABLE TO RETIRED OFFICERS EXCEPT AS THE LAW HAS OTHERWISE SPECIFICALLY DIRECTED THOSE PROVISIONS SHALL APPLY TO RETIRED OFFICERS, AS IS DONE IN SECTION 17 AND IN THE ACT OF MAY 8, 1926. AMONG THE REASONS FOR THE CONCLUSION REACHED BY THIS OFFICE MAY BE STATED THE FOLLOWING:

ONE OF THE OBJECTS OF THE JOINT PAY ACT OF JUNE 10, 1922, WHICH IS APPLICABLE TO THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, AND THE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, AND WHICH WAS STRESSED BY THE COMMITTEE MEMBERS HAVING THE MATTER IN CHARGE AND BY THE REPRESENTATIVES OF THE SERVICES BEFORE THE COMMITTEE--- WAS TO SECURE EQUALITY OF PAY IN THE VARIOUS SERVICES. IN THE HEARINGS ON H.R. 10972, BEFORE A SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES, SIXTY-SEVENTH CONGRESS, SECOND SESSION, IS PUBLISHED AN EXPLANATION OF THE VARIOUS SECTIONS OF THE BILL PREPARED BY THE SERVICES CONCERNED AT THE REQUEST OF MR. MCKENZIE, THE CHAIRMAN OF THE HOUSE SPECIAL COMMITTEE HAVING THE MATTER IN CHARGE (P. 2 OF THE HEARINGS).

THE COMMENTS AND EXPLANATIONS OF THE BILL (P. 13) CONTAIN THE FOLLOWING:

DESIRABILITY OF A PARITY OF PAY

THE THIRD REQUIREMENT, THAT OF ESTABLISHING A PARITY OF PAY FOR ALL SERVICES, REQUIRES LITTLE COMMENT. WHERE DISCREPANCIES HAVE EXISTED IN THE PAY RATES FIXED FOR THE VARIOUS SERVICES IT HAS NATURALLY BEEN THE PRACTICE OF THE LESS FAVORED SERVICE TO SEEK THE ADVANTAGES EXTENDED IN ANY PARTICULAR WAY TO THE MORE FAVORED, WHILE RETAINING ITS OWN PARTICULAR POINTS OF ADVANTAGE. THE RESULT HAS BEEN A CONSTANTLY GROWING STRUCTURE OF PIECEWORK LEGISLATION, GROWING MORE AND MORE COMPLEX AND COSTLY. ESTABLISHING A PARITY IN A SINGLE BILL NOT ONLY GREATLY REDUCES THE NUMBER OF STATUTES NOW AFFECTING THE PAY OF THE SERVICES, BUT REMOVES FOR ALL TIME THE CAUSES WHICH HAVE IN THE PAST PRODUCED THIS COMPLEXITY OF LAWS.

ON PAGE 14 OF THE HEARINGS ARE STATED THE PURPOSES OF THE BILL, AND, AMONG OTHERS, THE FOLLOWING:

"/E) IT PROVIDES A PARITY OF PAY IN ALL OF THE SERVICES.'

THE PAY OF OFFICERS OF THE COAST GUARD AND THE COAST AND GEODETIC SURVEY IS BASED ON THE PAY OF OFFICERS OF THE NAVY BY SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603. THE ACT OF AUGUST 5, 1882, 22 STAT. 286, APPLICABLE TO OFFICERS OF THE NAVY AND THEREFORE ALSO APPLICABLE TO OFFICERS OF THE COAST GUARD AND COAST AND GEODETIC SURVEY, PROVIDES: * * * 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. * *

OF COURSE IT IS SUGGESTED THAT THE BASIS FOR ADVANCEMENT OF OFFICERS OF THE ARMY IS THE ACT OF 1903, BUT GRANTED THAT THAT ACT DOES CREATE SOME DISPARITY, THE ARGUMENT ADVANCED IN CONNECTION WITH THIS CLAIM WOULD RESULT IN GREATLY INCREASING THAT DISPARITY UNDER AN ACT ONE OF THE PURPOSES OF WHICH WAS TO SECURE PARITY OF PAY FOR IDENTICAL SERVICE. THE SAME HEARINGS, PAGE 13, A NECESSARY CHARACTER OF A PROPER PAY SCHEDULE WAS DESCRIBED AS:

A PROVISION THAT WILL PROTECT THE GOVERNMENT IN CASE OF ABNORMALLY RAPID PROMOTION AND PROTECT THE INDIVIDUAL IN CASE OF ABNORMALLY SLOW PROMOTION.

ON PAGE 17 ARE GIVEN ILLUSTRATIONS OF THE EFFECT OF THE BILL ON ISOLATED CASES OF PAY WHERE PROMOTION WAS UNUSUALLY RAPID AND ALSO WHERE PROMOTION WAS ABNORMALLY SLOW, AND ON PAGE 21 IT WAS STATED:

WHILE THE SIX GRADES OF OFFICERS WILL HABITUALLY RECEIVE THE PAY OF THE CORRESPONDING SIX PAY PERIODS, THE FACT REMAINS THAT ABNORMAL CONDITIONS SOMETIMES EXIST (AS, FOR INSTANCE, THE RAPID PROMOTION IN THE ARMY DURING THE PAST TWO YEARS), AND IT WAS REALIZED THAT SOME SLIDING SCALE SHOULD BE CREATED THAT WOULD PROTECT THE INTEREST OF THE GOVERNMENT IN CASE OF ABNORMALLY RAPID PROMOTION AND THAT WOULD AT THE SAME TIME PROTECT THE INTEREST OF THE INDIVIDUAL IN CASE OF ABNORMAL STAGNATION IN PROMOTION. THIS WAS ACCOMPLISHED BY PROVIDING THAT AN OFFICER, WHO WAS PROMOTED TO A HIGHER GRADE IN LESS TIME THAN THE AVERAGE NUMBER OF YEARS FOR THAT GRADE WOULD CONTINUE TO RECEIVE THE PAY OF THE LOWER PERIOD UNTIL HE HAD SERVED THE AVERAGE NUMBER OF YEARS, AND BY PROVIDING ALSO THAT AN OFFICER WHO, FOR ANY CAUSE, WAS NOT PROMOTED TO A HIGHER GRADE AFTER A FIXED NUMBER OF YEARS WOULD RECEIVE THE PAY OF THE NEXT HIGHER GRADE. THIS SLIDING SCALE OPERATES TO GIVE THE OFFICER WHO HAS NOT BEEN PROMOTED THE PAY OF ONE ADDITIONAL PERIOD ONLY, THUS PREVENTING A SECOND LIEUTENANT FROM RECEIVING THE MAXIMUM PAY SIMPLY BECAUSE HE HAS SERVED THE NUMBER OF YEARS NORMALLY NECESSARY TO OBTAIN PROMOTION TO THE HIGHEST GRADE.

THE ACT ITSELF AND THE DISCLOSED PURPOSE OF THE BILL, WHEN UNDER CONSIDERATION, INDICATE CLEARLY THE ADVANCEMENT FROM ONE BASE PAY TO ANOTHER WAS TO BE IN LIEU OF OR A SUBSTITUTE FOR PROMOTION IN RANK UNDER THE PAY SCALE THERETOFORE IN EXISTENCE. IT WAS RECOGNIZED--- SEE PAGE 16 OF THE HEARINGS--- THAT THE PROPER ORGANIZATION OF THE ARMY REQUIRED OFFICERS OF THE VARIOUS GRADES, THAT PROMOTION TO THESE GRADES AT DIFFERENT TIMES WOULD BE NORMAL, WOULD BE SLOW, OR WOULD BE ACCELERATED, AND THE PURPOSE OF THE BILL WAS TO PROVIDE A PAY FOR EACH GRADE CORRESPONDING TO THE BASE RATES FIXED IN THE ACT OF 1908 FOR THE NORMAL FLOW OF PROMOTION; ALSO, TO PROVIDE AN INCREASED PAY FOR OFFICERS ABNORMALLY DELAYED IN PROMOTION, AND A DELAYED INCREASE OF THE FULL PAY OF THE GRADE FOR OFFICERS WHOSE PROMOTION WAS UNDULY ACCELERATED BY AN EXPANSION OF THE ARMY OR FOR OTHER CAUSES. OBVIOUSLY A REGIMENT COULD NOT HAVE 2 COLONELS, OR 3 LIEUTENANT COLONELS, OR 14 MAJORS; BUT IT COULD HAVE 1 COLONEL WITH THE PAY OF THAT GRADE AND 1 LIEUTENANT COLONEL DRAWING THE PAY OF THE SIXTH PERIOD (PAY OF A COLONEL) AND IT COULD HAVE 2 MAJORS DRAWING THE PAY OF LIEUTENANT COLONELS (PAY OF THE FIFTH PERIOD) AND 12 CAPTAINS DRAWING THE PAY OF MAJORS (PAY OF THE FOURTH PERIOD) WITHOUT BEING TOP HEAVY IN OFFICERS OF HIGH RANK. THE ACT, THEREFORE, DOES PROVIDE A PROMOTION--- A PROMOTION IN PAY BUT WITHOUT CHANGE OF GRADE, BUT IT IS A PROMOTION NEVERTHELESS, AND THE PROVISIONS OF SECTION 17 DIRECT THAT RETIRED OFFICERS SHALL NOT BE PROMOTED FOR ACTIVE DUTY PERFORMED AFTER RETIREMENT, AND THAT ONLY FOR THE APPROXIMATELY SIX YEARS INTERVENING PROMOTION. SEE SECTION 24 OF THE ACT OF JUNE 3, 1916, 39 STAT. 183, ACT OF JULY 9, 1918; 40 STAT. 890, AND SECTION 127-A, NATIONAL DEFENSE ACT, 41 STAT. 786. NO PROMOTION PRIOR TO THE ACT OF JUNE 10, 1922, WAS AUTHORIZED FOR RETIRED OFFICERS EXCEPT FOR ACTIVE DUTY PERFORMED AFTER RETIREMENT, AND THAT ONLY FOR THE APPROXIMATELY SIX YEARS INTERVENING BETWEEN JUNE 3, 1916, AND JUNE 30, 1922.

OFFICERS ON RETIREMENT ARE REQUIRED TO BE WITHDRAWN FROM COMMAND AND FROM THE LINE OF PROMOTION (SEC. 1255, REVISED STATUTES); SECTION 1257 OF THE REVISED STATUTES PROVIDES THAT WHEN AN OFFICER IN THE LINE OF PROMOTION IS RETIRED THE NEXT OFFICER IN RANK SHALL BE PROMOTED TO HIS PLACE AND SECTION 1259, REVISED STATUTES, PROVIDES:

RETIRED OFFICERS OF THE ARMY MAY BE ASSIGNED TO DUTY AT THE SOLDIERS' HOME, UPON A SELECTION BY THE COMMISSIONERS OF THAT INSTITUTION, APPROVED BY THE SECRETARY OF WAR; AND A RETIRED OFFICER SHALL NOT BE ASSIGNABLE TO ANY OTHER DUTY: (PROVIDED, THAT THEY RECEIVE FROM THE GOVERNMENT ONLY THE PAY AND EMOLUMENTS ALLOWED BY LAW TO RETIRED OFFICERS.)

THE ADVANCEMENT FROM ONE BASE PAY PERIOD TO ANOTHER ALTHOUGH DEPENDENT UPON LENGTH OF SERVICE, IS IN FACT A PROMOTION, AND, AS SHOWN BY THE QUOTATIONS FROM THE HEARINGS, AND THE REPORTS OF THE COMMITTEES HAVING THE MATTER IN CHARGE, THE LAW WAS INTENDED TO OPERATE AS A PROMOTION WITHOUT CHANGE IN GRADE. ANY OFFICER IN THE SERVICE JUNE 30, 1922, AND RETIRED SUBSEQUENT TO THAT DATE ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE WOULD NOT BE ENTITLED UNDER THE ACT OF 1903 TO COUNT FOR PURPOSES OF BASE PAY, TIME ON THE RETIRED LIST AND THE CLAIMANT IS NOT, THEREFORE, ENTITLED TO BE CREDITED FOR BASE PAY UNDER THE ACT OF JUNE 10, 1922, AND THE ACT OF MAY 8, 1926, WITH TIME ON THE RETIRED LIST. UNDER THE ACT OF JUNE 10, 1922, HE IS A MAJOR WITH LESS THAN 14 YEARS' SERVICE AND IF PAID UNDER THAT ACT, WOULD BE ENTITLED ONLY TO PAY OF THE THIRD PERIOD AND LONGEVITY INCREASE THEREON.

THE SETTLEMENT WILL BE MODIFIED AND ALLOWANCE MADE FOR LONGEVITY INCREASE OF PAY UNDER THE ACT OF MAY 11, 1908, FROM AND AFTER NOVEMBER 25, 1926, TO JUNE 30, 1927. CLAIMANT'S PAY SUBSEQUENT TO THE LATTER DATE MAY BE READJUSTED ON THE BASIS INDICATED HEREIN FROM AND AFTER JULY 1, 1927, BY THE ARMY FINANCE OFFICER ON WHOSE ROLLS HIS RETIRED PAY IS PAID.