A-10127, JULY 7, 1925, 5 COMP. GEN. 9

A-10127: Jul 7, 1925

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AN ENLISTED MAN OF THE NAVY WHO WAS RETIRED ON APRIL 7. IS ENTITLED TO RETIRED PAY OF A WARRANT OFFICER OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO JULY 1. 1925: THERE IS FOR CONSIDERATION THE QUESTION OF THE RATE OF PAY TO WHICH EDWARD DAVIS BERRY. IS ENTITLED. BERRY WAS RETIRED ON APRIL 7. HE WAS GIVEN SUNDRY CREDIT OF $46.95 AS DIFFERENCE OF PAY FOR THE PERIOD JUNE 6 TO DECEMBER 31. WHO AT THE TIME OF THEIR RETIREMENT WERE MEMBERS OF THE REGULAR NAVY OR MARINE CORPS. HE WAS RETIRED PRIOR TO JULY 1. HE IS ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO JULY 1. IT IS NOTED ON BERRY'S TRANSFER PAY ACCOUNT THAT HIS RATE OF PAY ($140.75 PER MONTH) AS RETIRED WARRANT OFFICER IS MADE UP OF THREE FOURTHS OF $2.

A-10127, JULY 7, 1925, 5 COMP. GEN. 9

NAVY PAY - RETIRED ENLISTED MEN UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472, AN ENLISTED MAN OF THE NAVY WHO WAS RETIRED ON APRIL 7, 1922, WITH OVER 30 YEARS' SERVICE, AND WHO HAD HAD NAVAL SERVICE AS A COMMISSIONED OFFICER BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, IS ENTITLED TO RETIRED PAY OF A WARRANT OFFICER OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO JULY 1, 1922, IF GREATER THAN HIS PAY AND ALLOWANCES AS A RETIRED ENLISTED MAN.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 7, 1925:

THERE IS FOR CONSIDERATION THE QUESTION OF THE RATE OF PAY TO WHICH EDWARD DAVIS BERRY, CHIEF QUARTERMASTER (RETIRED), UNITED STATES NAVY, IS ENTITLED. BERRY WAS RETIRED ON APRIL 7, 1922, AFTER 30 YEARS' SERVICE, WITH THE RATING OF CHIEF QUARTERMASTER. ON THE PAY ROLLS OF THE NAVAL HOME, PHILADELPHIA, FOR THE QUARTER JANUARY 1 TO MARCH 31, 1925, HE WAS GIVEN SUNDRY CREDIT OF $46.95 AS DIFFERENCE OF PAY FOR THE PERIOD JUNE 6 TO DECEMBER 31, 1924, UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472, SUCH BEING THE DIFFERENCE BETWEEN PAY AT $133.88 PER MONTH, RETIRED PAY OF A CHIEF PETTY OFFICER AFTER 30 YEARS, AND PAY AT $140.75 PER MONTH, THE RETIRED PAY OF A WARRANT OFFICER RETIRED AFTER 30 YEARS' SERVICE.

SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, PROVIDES:

THAT RETIRED ENLISTED MEN OF THE ARMY HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY; AND RETIRED ENLISTED MEN OF THE REGULAR NAVY AND MARINE CORPS HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS, REGULAR, TEMPORARY, OR RESERVE, IN THE NAVAL SERVICE AT SOME TIME BETWEEN THE AFORESAID DATES, AND WHO AT THE TIME OF THEIR RETIREMENT WERE MEMBERS OF THE REGULAR NAVY OR MARINE CORPS, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE NAVY AND MARINE CORPS, RESPECTIVELY: PROVIDED, THAT SUCH ENLISTED MAN RETIRED PRIOR TO JULY 1, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO THAT DATE, AND THAT ANY SUCH ENLISTED MAN RETIRED SUBSEQUENT TO JUNE 30, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED FURTHER, THAT NOTHING IN THE ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCE OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCE EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.

BERRY SERVED AS A TEMPORARY COMMISSIONED OFFICER IN THE NAVY FROM JANUARY 16, 1918, TO NOVEMBER 15, 1921. HE WAS RETIRED PRIOR TO JULY 1, 1922, AND, ACCORDINGLY, HE IS ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO JULY 1, 1922, IF GREATER THAN HIS PAY AS A RETIRED ENLISTED MAN.

IT IS NOTED ON BERRY'S TRANSFER PAY ACCOUNT THAT HIS RATE OF PAY ($140.75 PER MONTH) AS RETIRED WARRANT OFFICER IS MADE UP OF THREE FOURTHS OF $2,000 (SHORE PAY OF A WARRANT OFFICER AFTER 12 YEARS), PLUS $15.75 PER MONTH, THE SO-CALLED ALLOWANCES OF A RETIRED ENLISTED MAN.

THE ACT OF JUNE 6, 1924, DOES NOT OPERATE TO PREVENT RETIRED ENLISTED MEN FROM RECEIVING THE RETIRED PAY AND ALLOWANCES PROVIDED BY LAW FOR RETIRED ENLISTED MEN WHEN SUCH PAY AND ALLOWANCES EXCEED THE RETIRED PAY OF A WARRANT OFFICER OF EQUAL LENGTH OF SERVICE. HOWEVER, THE MAN CAN NOT ELECT TO RECEIVE THE RETIRED PAY OF A WARRANT OFFICER AND ALSO RETAIN THE SO-CALLED RETIRED ALLOWANCES OF AN ENLISTED MAN. THE DESIGN OF THE STATUTE IS TO GIVE TO ENLISTED MEN COMING WITHIN ITS PROVISIONS RETIRED PAY AS IF THEY WERE IN FACT WARRANT OFFICERS, IF GREATER THAN THE AMOUNT RECEIVED AS RETIRED ENLISTED MEN, AND FOR PURPOSES OF COMPARISON WITH THE RETIRED PAY OF A WARRANT OFFICER UNDER THE ACT OF JUNE 6, 1924, THE RETIRED PAY OF AN ENLISTED MAN IS A UNIT AND NOT SEPARATE ITEMS OF PAY AND ALLOWANCES. 27 COMP. DEC. 678; 1 COMP. GEN. 20.

UNDER THE ACT OF MAY 13, 1908, 35 STAT. 128, A WARRANT OFFICER RETIRED AFTER 30 YEARS' SERVICE IS ENTITLED TO THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE. THE HIGHEST PAY OF A WARRANT OFFICER WITH 30 YEARS' SERVICE UNDER THAT ACT (WHICH ACT WAS IN FORCE ON APRIL 7, 1922) WAS $2,250 PERANNUM, THREE-FOURTHS OF WHICH IS $1,687.50 PER ANNUM, OR $140.63 PER MONTH. 15 COMP. DEC. 628.

ACCORDINGLY, UNDER THE ACT OF JUNE 6, 1924, BERRY IS ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER AT $140.63 PER MONTH, SAME BEING IN EXCESS OF HIS PAY AS A RETIRED ENLISTED MAN.