A-10560, AUGUST 7, 1925, 5 COMP. GEN. 97

A-10560: Aug 7, 1925

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NAVY PAY - DETENTION BEYOND ENLISTMENT WHEN AN ENLISTED MAN OF THE NAVY COMPLETES A FOUR-YEAR PERIOD OF NET SERVICE AND IS DETAINED AFTER EXPIRATION OF ENLISTMENT UNDER THE PROVISIONS OF SECTION 1422. IS NOT TO BE COMPUTED UPON ANY SUCH INCREASED PAY THAT MAY SO ACCRUE DURING THE DETENTION PERIOD. 1925: I HAVE YOUR LETTER OF JULY 21. " WITH REQUEST FOR AN EXPRESSION OF VIEWS AS TO WHETHER THE PROPOSED CHANGE IN SO FAR AS IT INVOLVES DISBURSEMENTS IS IN CONFORMITY WITH LAW. WHEN AN ENLISTED MAN HAS COMPLETED A FOUR-YEAR PERIOD OF SERVICE AND IS BEING DETAINED BEYOND THE TERM OF ENLISTMENT AS ESSENTIAL TO THE PUBLIC INTEREST. IS AS FOLLOWS: PAGE B 13. SUBPARAGRAPH (F): "WHEN AN ENLISTED MAN COMPLETES A FOUR-YEAR PERIOD OF NET SERVICE WHILE HE IS DETAINED AFTER EXPIRATION OF ENLISTMENT UNDER THE PROVISIONS OF SECTION 1422.

A-10560, AUGUST 7, 1925, 5 COMP. GEN. 97

NAVY PAY - DETENTION BEYOND ENLISTMENT WHEN AN ENLISTED MAN OF THE NAVY COMPLETES A FOUR-YEAR PERIOD OF NET SERVICE AND IS DETAINED AFTER EXPIRATION OF ENLISTMENT UNDER THE PROVISIONS OF SECTION 1422, REVISED STATUTES, HE MAY BE PAID THE INCREASED PAY AUTHORIZED BY SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, BUT THE ONE-FOURTH ADDITIONAL PAY UNDER SECTION 1422, REVISED STATUTES, IS NOT TO BE COMPUTED UPON ANY SUCH INCREASED PAY THAT MAY SO ACCRUE DURING THE DETENTION PERIOD.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE NAVY, AUGUST 7, 1925:

I HAVE YOUR LETTER OF JULY 21, 1925, SUBMITTING A PROPOSED CHANGE IN SECTION B OF "INSTRUCTIONS FOR CARRYING INTO EFFECT THE JOINT SERVICE PAY BILL, ACT OF 10 JUNE, 1922," WITH REQUEST FOR AN EXPRESSION OF VIEWS AS TO WHETHER THE PROPOSED CHANGE IN SO FAR AS IT INVOLVES DISBURSEMENTS IS IN CONFORMITY WITH LAW.

THE PROPOSED CHANGE TREATS OF THE PAYMENT OF ONE-FOURTH ADDITIONAL PAY UNDER SECTION 1422 OF THE REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 3, 1875, 18 STAT. 484, WHEN AN ENLISTED MAN HAS COMPLETED A FOUR-YEAR PERIOD OF SERVICE AND IS BEING DETAINED BEYOND THE TERM OF ENLISTMENT AS ESSENTIAL TO THE PUBLIC INTEREST, AND IS AS FOLLOWS:

PAGE B 13, ADD THE FOLLOWING TO PARAGRAPH 4, SUBPARAGRAPH (F):

"WHEN AN ENLISTED MAN COMPLETES A FOUR-YEAR PERIOD OF NET SERVICE WHILE HE IS DETAINED AFTER EXPIRATION OF ENLISTMENT UNDER THE PROVISIONS OF SECTION 1422, REVISED STATUTES, HE IS ENTITLED TO INCREASED PAY UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JUNE 10, 1922, AND THE ONE-QUARTER ADDITIONAL SHALL BE COMPUTED ON SUCH INCREASED PAY.'

SECTION 1422 OF THE REVISED STATUTES AS AMENDED, ALLOWING TO ENLISTED MEN OF THE NAVY ADDITIONAL PAY WHEN UNDER CERTAIN CONDITIONS THEY ARE HELD TO SERVICE BEYOND THE TERM FOR WHICH ENLISTED, PROVIDES:

* * * AND THAT ALL PERSONS WHO SHALL BE SO DETAINED BEYOND THEIR TERMS OF ENLISTMENT OR WHO SHALL, AFTER THE TERMINATION OF THEIR ENLISTMENT, VOLUNTARILY RE-ENTER TO SERVE UNTIL THE RETURN TO AN ATLANTIC OR PACIFIC PORT OF THE VESSEL TO WHICH THEY BELONG, AND THEIR REGULAR DISCHARGE THEREFROM, SHALL RECEIVE FOR THE TIME DURING WHICH THEY ARE SO DETAINED, OR SHALL SO SERVE BEYOND THEIR ORIGINAL TERMS OF ENLISTMENT, AN ADDITION OF ONE-FOURTH OF THEIR FORMER PAY * * *.

SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, PROVIDES IN PART:

* * * IN LIEU OF ALL PERMANENT ADDITIONS TO PAY NOW AUTHORIZED FOR ENLISTED MEN OF THE NAVY AND COAST GUARD, THEY SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 10 PERCENTUM ON THE BASE PAY OF THEIR RATING UPON COMPLETION OF THE FIRST FOUR YEARS OF ENLISTED SERVICE, AND AN ADDITIONAL INCREASE OF 5 PERCENTUM FOR EACH FOUR YEARS' SERVICE THEREAFTER, THE TOTAL NOT TO EXCEED 25 PERCENTUM * * *.

IN 2 COMP. GEN. 177, IT WAS HELD THAT NOTHING IN THE ACT OF JUNE 10, 1922, 42 STAT. 625, OPERATES TO REPEAL SECTION 1422 OF THE REVISED STATUTES OR TO PROHIBIT THE PAYMENT OF THE ONE-FOURTH ADDITIONAL PAY THEREIN PROVIDED FOR.

WHILE SECTION 10 OF THE ACT OF JUNE 10, 1922, GIVES TO ENLISTED MEN A RIGHT TO THE PERCENTUM INCREASE THEREIN PROVIDED UPON COMPLETION OF THE FOUR-YEAR PERIODS OF SERVICE UPON WHICH THE INCREASE IS BASED, AND THE RIGHT THERETO UNQUESTIONABLY ACCRUES AS WELL DURING A PERIOD OF AUTHORIZED SERVICE EXTENDING BEYOND THE EXPIRATION DATE OF AN ENLISTMENT AS AT ANY TIME WITHIN THE EXPIRATION DATE, SECTION 1422 OF THE REVISED STATUTES PROVIDES FOR AN ADDITION OF ONE-FOURTH OF THEIR "FORMER" PAY.

THE PROVISION OF THE LATTER PART OF SECTION 1422 OF THE REVISED STATUTES AS AMENDED RELATIVE TO THE PAYMENT OF ONE-FOURTH ADDITIONAL PAY IS ALMOST IDENTICAL WITH THE PROVISIONS OF SECTION 1572 OF THE REVISED STATUTES OF 1873. SECTION 1572 PROVIDED "SHALL * * * RECEIVE AN ADDITION OF ONE- FOURTH OF THEIR FORMER PAY," WHICH WORDING WAS TAKEN IN TOTO FROM SECTION 17 OF THE ACT OF JULY 17, 1862, 12 STAT. 610. IT FURTHER APPEARS THAT LEGISLATION PROVIDING FOR SUCH ONE-FOURTH ADDITIONAL PAY ORIGINALLY APPEARED IN THE ACT OF MARCH 2, 1837, 5 STAT. 153, SECTION 3 OF WHICH CONTAINED THE WORDING "SHALL * * * RECEIVE AN ADDITION OF ONE-FOURTH TO THEIR FORMER PAY.'

IN CONSTRUING THE ACT OF 1837 THE SECOND COMPTROLLER OF THE TREASURY HELD:

UNDER THE LAW OF MARCH 2, 1837 (5 STAT. 153), A DETAINED OR REENLISTED SEAMAN IS ENTITLED TO AN ADDITION OF ONE-FOURTH OF THE PAY OF THE RESPECTIVE GRADES HE MAY HOLD DURING HIS DETENTION OR REENLISTMENT. SEE ALSO THE ACT OF JULY 17, 1862 (12 STAT. 610, SEC. 17), VOL. 28, P. 24. (PARAGRAPH 1492, BUTTERFIELD, THIRD EDITION, DIGEST SECOND COMPTROLLER; ALSO PARAGRAPH 1071, CHIPMAN DIGEST, SECOND COMPTROLLER.)

LIKEWISE:

A SEAMAN WHOSE TERM OF SERVICE EXPIRES WHILE HE IS A PETTY OFFICER, AND WHO REENLISTS UNDER THE ACT OF MARCH 2, 1837 (5 STAT. 153), WILL BE ENTITLED TO AN ADDITION OF ONE-FOURTH TO HIS PAY AS SUCH PETTY OFFICER FROM THE COMMENCEMENT OF HIS NEW TERM UNTIL HIS DISCHARGE IN THE UNITED STATES, UNLESS HE SHALL HAVE BEEN DISRATED IN THE MEANTIME BY PROPER AUTHORITY. VOL. 8, P. 150. (PARAGRAPH 1494, BUTTERFIELD, THIRD EDITION, DIGEST SECOND COMPTROLLER; ALSO PARAGRAPH 1075, CHIPMAN DIGEST, SECOND COMPTROLLER.)

IN CONSTRUING SECTION 1422 OF THE REVISED STATUTES THE COMPTROLLER OF THE TREASURY HELD IN 11 COMP. DEC. 575:

I AM OF OPINION THAT THE PAY OF THE ENLISTED MAN HERE REFERRED TO AS THAT TO WHICH ONE-FOURTH SHALL BE ADDED IS THE PAY THE MAN WOULD OTHERWISE RECEIVE DURING THE TIME OF DETENTION. IN OTHER WORDS, THE ONE-QUARTER INCREASE FOLLOWS THE PAY GIVEN FOR THE DUTIES HE MAY BE REQUIRED TO PERFORM, WHETHER THEY BE REGULAR DUTIES COVERED BY THE REGULAR PAY OR SPECIAL DUTIES FOR WHICH EXTRA PAY IS PROVIDED * * *.

A SIMILAR HOLDING APPEARS IN DECISION OF APRIL 27, 1905, 33 MS. COMP. DEC. 398.

IN 26 COMP. DEC. 1050, INVOLVING THE QUESTION OF ONE-FOURTH ADDITIONAL PAY UNDER SECTION 1422 IN THE CASE OF AN ENLISTED MAN WHOSE ENLISTMENT EXPIRED ON DECEMBER 4, 1918, AND WHO DURING THE DETENTION PERIOD WAS ADVANCED IN RATING FROM PETTY OFFICER, FIRST CLASS, TO CHIEF PETTY OFFICER, THE COMPTROLLER OF THE TREASURY COMPUTED THE AMOUNT ALLOWED UPON THE BASIS OF ONE-FOURTH THE PAY OF THE RESPECTIVE RATINGS HELD.

IN 5 COMP. DEC. 524 IT WAS HELD, HOWEVER, THAT THE 20 PERCENT INCREASE IN PAY PAYABLE "IN TIME OF WAR" TO ENLISTED MEN OF THE ARMY, UNDER SECTION 6 OF THE ACT OF APRIL 26, 1898, 30 STAT. 365, AND THROUGH SECTION 1612 OF THE REVISED STATUTES EXTENDED TO ENLISTED MEN OF THE MARINE CORPS, WAS NOT FOR INCLUSION AS PAY UPON WHICH THE ONE FOURTH ADDITIONAL PAY FOR DETENTION WAS TO BE COMPUTED. IN SAID DECISION BOTH THE 20 PERCENT AND THE ONE-FOURTH ADDITIONAL WERE ALLOWED, BUT EACH WAS COMPUTED UPON THE SAME PAY BASIS. A SIMILAR DECISION WAS MADE ON FEBRUARY 24, 1905, 32 MS. COMP. DEC. 642, IN THE CASE OF AN ENLISTED MAN OF THE MARINE CORPS IN CONNECTION WITH THE 20 PERCENT INCREASE ALLOWED TO ENLISTED MEN OF THE ARMY BY THE ACT OF JUNE 30, 1902, 32 STAT. 512, FOR FOREIGN SERVICE.

IT THUS APPEARS FROM THE DECISIONS CITED THAT THE CONSTRUCTION OF THIS PORTION OF SECTION 1422, REVISED STATUTES, HAS NOT BEEN UNIFORM. THE SPECIFIC PROVISION IN THE ACTS OF 1837, 1862, THE FORMER SECTION 1572 OF THE REVISED STATUTES AND THE PRESENT SECTION 1422 THEREOF, IS THAT A MAN DETAINED BY REASON OF PUBLIC INTEREST BEYOND THE TERM OF HIS ENLISTMENT SHALL RECEIVE AN ADDITION OF ONE-FOURTH OF HIS FORMER PAY, THE WORD FORMER AS USED IN THE STATUTES CLEARLY INDICATING A REFERENCE TO THE PAY IN RECEIPT OF BEFORE THE DETENTION PERIOD HAD BEGUN.

FURTHERMORE, IT IS CLEAR FROM THE PHRASEOLOGY OF SECTION 1422 THAT THE ONE-FOURTH ADDITIONAL IS NOT A PAYMENT TO BE MADE ON DISCHARGE, THUS NEGATIVING A CONSTRUCTION THAT THE ADDITIONAL PAY IS TO BE ONE-FOURTH OF THE AMOUNT RECEIVED PRIOR THERETO DURING THE DETENTION PERIOD.

THE PROPOSED CHANGE IN THE PAY BILL INSTRUCTIONS SHOULD ACCORDINGLY BE WORDED AS FOLLOWS:

WHEN AN ENLISTED MAN COMPLETES A FOUR-YEAR PERIOD OF NET SERVICE WHILE HE IS DETAINED AFTER EXPIRATION OF ENLISTMENT UNDER THE PROVISIONS OF SECTION 1422, REVISED STATUTES, HE IS ENTITLED TO INCREASED PAY UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JUNE 10, 1922. THE ONE-FOURTH ADDITIONAL IS NOT, HOWEVER, TO BE COMPUTED UPON ANY SUCH INCREASED PAY THAT MAY SO ACCRUE DURING THE DETENTION PERIOD.