A-10641, SEPTEMBER 15, 1925, 5 COMP. GEN. 198

A-10641: Sep 15, 1925

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IS NOT AN APPOINTMENT WITHIN THE MEANING OF SECTION 1 OF THE ACT OF JUNE 10. A RETIRED WARRANT OFFICER SO ADVANCED IS ENTITLED TO COUNT ALL SERVICES WHICH ON JUNE 30. MIGHT HAVE BEEN INCLUDED IN DETERMINING THE LONGEVITY PAY OF A COMMISSIONED OFFICER. 1925: I HAVE FOR CONSIDERATION YOUR REQUEST IN LETTER OF JULY 27. THE RECORDS OF OFFICERS WHO HAVE RETIRED SINCE DECEMBER 31. HAVE BEEN EXAMINED AND IT IS FOUND THAT SOME OFFICERS WHO WERE RETIRED WITH A PERMANENT WARRANT GRADE WERE RETIRED FOR DISABILITY ORIGINATING IN LINE OF DUTY BETWEEN APRIL 6. WHILE THEY WERE HOLDING TEMPORARY RANK AS COMMISSIONED OFFICERS. UNDER THE ABOVE LAW SUCH OFFICERS ARE TO BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER TEMPORARY GRADE OR RANK AS WAS HELD BY THEM AT THE TIME THE DISABILITY ORIGINATED BETWEEN APRIL 6.

A-10641, SEPTEMBER 15, 1925, 5 COMP. GEN. 198

NAVY PAY, LONGEVITY - RETIRED WARRANT OFFICERS THE ADVANCEMENT OF A RETIRED WARRANT OFFICER OF THE NAVY TO A COMMISSIONED RANK, UNDER SECTION 25 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1278, IS NOT AN APPOINTMENT WITHIN THE MEANING OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AND A RETIRED WARRANT OFFICER SO ADVANCED IS ENTITLED TO COUNT ALL SERVICES WHICH ON JUNE 30, 1922, MIGHT HAVE BEEN INCLUDED IN DETERMINING THE LONGEVITY PAY OF A COMMISSIONED OFFICER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 15, 1925:

I HAVE FOR CONSIDERATION YOUR REQUEST IN LETTER OF JULY 27, 1925, AS FOLLOWS:

SECTION 25 OF THE ACT OF MARCH 4, 1925, PROVIDES:

"ANY OFFICER OF THE REGULAR NAVY WHO HAS BEEN RETIRED SINCE DECEMBER 31, 1921, BY REASON OF PHYSICAL DISABILITY WHICH ORIGINATED IN THE LINE OF DUTY AT ANY TIME BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, INCLUSIVE, WHILE HOLDING HIGHER TEMPORARY RANK, SHALL BE ADVANCED ON THE RETIRED LIST TO, OR SHALL BE PLACED ON THE RETIRED LIST IN, SUCH HIGHER GRADE OR RANK.'

IN ACCORDANCE WITH THE ABOVE LAW, THE RECORDS OF OFFICERS WHO HAVE RETIRED SINCE DECEMBER 31, 1921, HAVE BEEN EXAMINED AND IT IS FOUND THAT SOME OFFICERS WHO WERE RETIRED WITH A PERMANENT WARRANT GRADE WERE RETIRED FOR DISABILITY ORIGINATING IN LINE OF DUTY BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, WHILE THEY WERE HOLDING TEMPORARY RANK AS COMMISSIONED OFFICERS. UNDER THE ABOVE LAW SUCH OFFICERS ARE TO BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER TEMPORARY GRADE OR RANK AS WAS HELD BY THEM AT THE TIME THE DISABILITY ORIGINATED BETWEEN APRIL 6, 1917, AND MARCH 3, 1921. AS AN EXAMPLE, CHARLES W. ALBRECHT WAS RETIRED WITH THE RANK OF ACTING PAY CLERK, HIS RECORD HAS BEEN REVIEWED BY THE DEPARTMENT, AND IT HAS BEEN DETERMINED THAT THE PHYSICAL DISABILITY, BY REASON OF WHICH HE WAS RETIRED, ORIGINATED IN LINE OF DUTY BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, WHILE HOLDING THE RANK OF ENSIGN. UNDER THE ABOVE LAW HE IS ENTITLED TO BE ADVANCED ON THE RETIRED LIST TO THE GRADE OF ENSIGN.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT CHARLES W. ALBRECHT WILL BE ENTITLED TO COUNT ALL SERVICE RENDERED BY HIM AS AN ENLISTED MAN, WARRANT OFFICER, AND COMMISSIONED OFFICER IN COMPUTING LONGEVITY PAY OF ENSIGN ON WHICH HIS RETIRED PAY OF THAT RANK MAY BE COMPUTED. IN OTHER WORDS, IS THE ADVANCEMENT OF OFFICERS, WHO HAVE RETIRED IN WARRANT GRADES, TO COMMISSIONED RANK ON THE RETIRED LIST AN ORIGINAL APPOINTMENT WITHIN THE MEANING OF THE ACT OF JUNE 10, 1922, THEREBY PRECLUDING THE COUNTING OF THE PRIOR SERVICE. THIS DEPARTMENT IS WITHHOLDING THE ADVANCEMENT OF THE ABOVE-NAMED OFFICER PENDING YOUR DECISION OF THE QUESTION HEREIN SUBMITTED.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES THAT--

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 * * *.

SECTION 17 OF THAT ACT PROVIDES:

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 CT: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN NOW ON THE RETIRED LIST OR OFFICERS OR WARRANT OFFICERS IN AN EQUIVALENT STATUS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * *.

THE NAVY REGISTER SHOWS THAT ALBRECHT WAS RETIRED AS AN ACTING PAY CLERK JULY 27, 1923, WITH OVER 12 YEARS' SERVICE.

WHEN AN OFFICER IS TRANSFERRED FROM THE ACTIVE TO THE RETIRED LIST THERE IS ORDINARILY NO CHANGE IN THE OFFICE WHICH HE HOLDS, BUT MERELY A CHANGE IN HIS STATUS UNDER HIS EXISTING APPOINTMENT; HE IS NOT DIVESTED OF ONE OFFICE AND APPOINTED TO ANOTHER, BUT CONTINUES A RETIRED OFFICER UNDER THE APPOINTMENT WHICH HE HELD ON THE ACTIVE LIST.

ALTHOUGH OFFICERS ON THE RETIRED LIST ARE IN THE NAVY, THEY ARE DISTINCT FROM OFFICERS ON THE ACTIVE LIST, AND WHEN CONGRESS LEGISLATES IN REFERENCE TO THEM THEY ARE USUALLY REFERRED TO AS RETIRED OFFICERS OR OFFICERS ON THE RETIRED LIST. 13 COMP. DEC. 116, 630; 12 ID. 185. SECTION 1 OF THE ACT OF JUNE 10, 1922, IS GENERAL LEGISLATION APPLYING TO OFFICERS ON THE ACTIVE LIST, AND RESTRICTIONS THEREIN RELATIVE TO APPOINTMENTS AFTER JULY 1, 1922, APPLY TO OFFICERS ON THE ACTIVE LIST. PROVISION GOVERNING PAY AND LONGEVITY CREDIT FOR OFFICERS ON THE RETIRED LIST IS FOUND IN SECTION 17 OF THAT ACT. OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922, WERE NOT AFFECTED, SO FAR AS CONCERNS THEIR RETIRED PAY, BY THE ACT OF JUNE 10, 1922, SINCE SECTION 1 OF THE ACT PROVIDES THAT THE PAY OF SUCH RETIRED OFFICERS SHALL NOT BE INCREASED OR REDUCED BY REASON OF ANY OF ITS PROVISIONS. AN OFFICER RETIRED PRIOR TO JULY 1, 1922, IS ENTITLED TO RETIRED PAY BASED ON LAWS IN EFFECT PRIOR TO JULY 1, 1922.

SECTIONS 24 AND 25 OF THE ACT OF MARCH 4, 1925, TREAT OF THE SAME GENERAL QUESTION--- RETIREMENTS ON ACCOUNT OF PHYSICAL DISABILITY WHICH ORIGINATED IN LINE OF DUTY DURING THE WORLD WAR--- AND PROPERLY MAY BE CONSIDERED TOGETHER TO ASCERTAIN THE INTENT OF EITHER. THOSE TWO SECTIONS, WITH THEIR EXPLANATORY TITLES IN FULL, ARE AS FOLLOWS:

OFFICERS OF THE NAVY AND MARINE CORPS EXAMINED FOR RETIREMENT WHILE HOLDING TEMPORARY RANK AND FOUND PHYSICALLY INCAPACITATED IN LINE OF DUTY SHALL BE RETIRED IN TEMPORARY RANK HELD AT TIME OF EXAMINATION BY RETIRING BOARD AND PAID ACCORDINGLY.

SEC. 24. ALL OFFICERS OF THE NAVY AND MARINE CORPS WHO WHILE HOLDING TEMPORARY RANK WERE EXAMINED FOR RETIREMENT AND FOUND PHYSICALLY INCAPACITATED IN THE LINE OF DUTY, AND WHOSE TEMPORARY APPOINTMENTS WERE REVOKED, SHALL, IN ALL CASES WHERE THE DEPARTMENT HAS RECALLED AND CANCELED THE LETTER REVOKING THE TEMPORARY APPOINTMENT, BE CONSIDERED AS HAVING BEEN RETIRED IN THE TEMPORARY RANK HELD BY THEM AT THE TIME OF EXAMINATION BY THE RETIRING BOARD, AND SHALL BE ENTITLED TO PAY ON THE RETIRED LIST COMPUTING ON THE PAY OF SUCH TEMPORARY RANK FROM THE DAY THEIR RETIREMENT WAS EFFECTIVE.

OFFICERS OF REGULAR NAVY RETIRED SINCE DECEMBER 31, 1921, BECAUSE OF PHYSICAL DISABILITY ORIGINATING IN LINE OF DUTY IN TIME OF WAR, TO BE RETIRED IN HIGHER GRADE OR RANK HELD DURING THE WAR.

SEC. 25. ANY OFFICER OF THE REGULAR NAVY WHO HAS BEEN RETIRED SINCE DECEMBER 31, 1921, BY REASON OF PHYSICAL DISABILITY WHICH ORIGINATED IN THE LINE OF DUTY AT ANY TIME BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, INCLUSIVE, WHILE HOLDING HIGHER TEMPORARY RANK, SHALL BE ADVANCED ON THE RETIRED LIST TO, OR SHALL BE PLACED ON THE RETIRED LIST IN, SUCH HIGHER GRADE OR RANK.

PROMOTION OF RETIRED OFFICERS OR INCREASE OF PAY IN THE RETIRED LIST OF THE NAVY IS PROHIBITED BY THE ACT OF AUGUST 5, 1882, 22 STAT. 286. IT IS THE PURPOSE OF SECTIONS 24 AND 25 TO PROVIDE OTHERWISE FOR THE OFFICERS WITHIN THE TERMS OF THOSE SECTIONS. AS TO OFFICERS WITHIN SECTION 24, THE ACT DIRECTS A READJUSTMENT OF THEIR ACCOUNTS AS THOUGH RETIRED IN THE RANK THEREIN ACCORDED THEM. ALL TEMPORARY APPOINTMENTS IN THE NAVY WERE BY LAW REQUIRED TO BE TERMINATED DECEMBER 31, 1921, AND THE PURPOSE OF SECTION 25 IS TO PLACE OFFICERS RETIRED SUBSEQUENT TO THAT DATE, FROM THE DATE OF THEIR RETIREMENT AND IN THEIR RETIRED STATUS ONLY, ON THE SAME FOOTING AS TO RANK AND AS TO RETIRED PAY AS OFFICERS RETIRED WHILE TEMPORARY ADVANCEMENT IN RANK WAS AUTHORIZED.

WHILE PRIMARILY THE PROVISIONS ARE ADDRESSED TO COMMISSIONED OFFICERS,WARRANT OFFICERS ARE INCLUDED WITHIN THE TERMS OF THE PROVISION, AND TO GIVE ALL OFFICERS ENTITLED TO ADVANCEMENT IN RANK PAY ON THE SAME BASIS A WARRANT OFFICER CONTINUOUSLY IN THE SERVICE FROM THE WORLD WAR TO DATE OF RETIREMENT AND ACTUALLY IN SERVICE AS SUCH JUNE 30, 1922, AND RETIRED SUBSEQUENT TO THAT DATE FOR A DISABILITY WHICH ORIGINATED IN THE LINE OF DUTY BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, WHILE HOLDING TEMPORARY COMMISSIONED RANK, MAY BE CONSIDERED FOR THIS PURPOSE AN OFFICER IN THE SERVICE JUNE 30, 1922, AND ENTITLED TO RETIRED PAY BASED ON SERVICE WHICH ON THAT DATE MIGHT HAVE BEEN INCLUDED IN DETERMINING THE LONGEVITY PAY OF A COMMISSIONED OFFICER. YOUR QUESTION IS ANSWERED ACCORDINGLY.