A-12874, OCTOBER 18, 1926, 6 COMP. GEN. 267

A-12874: Oct 18, 1926

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IS ENTITLED TO COMPUTE HIS LONGEVITY PAY UNDER SECTION 3 OF THE ACT OF MARCH 4. WAS APPOINTED ACTING WARRANT MACHINIST FROM JUNE 17. HE WAS ADVISED THAT ON JANUARY 11. WHICH HAD BEEN CONVENED IN HIS CASE AND HE WAS PLACED ON THE RETIRED LIST OF THE NAVY IN THE NEXT HIGHER GRADE. HE WAS APPOINTED A TEMPORARY LIEUTENANT ON THE RETIRED LIST FROM JULY 1. HIS TEMPORARY APPOINTMENT WAS REVOKED AND HE REVERTED TO THE RANK OF CHIEF MACHINIST. HE WAS DETACHED FROM ACTIVE DUTY NOVEMBER 29. HE WAS ENTITLED TO THE PAY OF A WARRANT OFFICER WITH MORE THAN NINE AND LESS THAN TWELVE YEAR'S SERVICE. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT CHIEF MACHINIST MARTIN HUBER. IS ENTITLED TO AN INCREASE IN RETIRED PAY FROM AND AFTER MARCH 4.

A-12874, OCTOBER 18, 1926, 6 COMP. GEN. 267

PAY - LONGEVITY - RETIRED COMMISSIONED WARRANT OFFICER UNDER THE SAVING CLAUSE IN THE ACT OF MARCH 3, 1909, 35 STAT. 771, A CHIEF MACHINIST RETIRED IN THAT GRADE UNDER SECTION 1453, REVISED STATUTES, AND THE ACT OF MARCH 4, 1911, 36 STAT. 1267, IS ENTITLED TO COMPUTE HIS LONGEVITY PAY UNDER SECTION 3 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1271, ON THE PAY OF A WARRANT OFFICER IF HIGHER THAN HE WOULD BE ENTITLED TO RECEIVE AS A CHIEF WARRANT OFFICER.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 18, 1926:

THE SECRETARY OF THE NAVY PRESENTED JANUARY 29, 1926, REQUEST FOR AN ADVANCE DECISION AS FOLLOWS:

CHIEF MACHINIST MARTIN HUBER, U.S.N. (RETIRED), ENLISTED IN THE NAVY DECEMBER 13, 1904; WAS APPOINTED ACTING WARRANT MACHINIST FROM JUNE 17, 1908, AND EXECUTED OATH OF OFFICE JUNE 29, 1908. ON JANUARY 14, 1916, HE WAS ADVISED THAT ON JANUARY 11, 1916, THE PRESIDENT APPROVED THE FINDINGS OF THE NAVAL RETIRING BOARD, WHICH HAD BEEN CONVENED IN HIS CASE AND HE WAS PLACED ON THE RETIRED LIST OF THE NAVY IN THE NEXT HIGHER GRADE, CHIEF MACHINIST, IN CONFORMITY WITH SECTION 1453 OF THE REVISED STATUTES.

HUBER REPORTED FOR ACTIVE DUTY APRIL 7, 1917, AS A CHIEF MACHINIST; ON OCTOBER 14, 1918, HE WAS APPOINTED A TEMPORARY LIEUTENANT ON THE RETIRED LIST FROM JULY 1, 1918, AND ACCEPTED APPOINTMENT AND EXECUTED OATH OF OFFICE OCTOBER 30, 1918; ON NOVEMBER 24, 1919, HIS TEMPORARY APPOINTMENT WAS REVOKED AND HE REVERTED TO THE RANK OF CHIEF MACHINIST; HE WAS DETACHED FROM ACTIVE DUTY NOVEMBER 29, 1919, AND ARRIVED AT HIS HOME SEPTEMBER 18, 1920. ON THE DATE OF HIS RETIREMENT, JANUARY 11, 1916, HE WAS ENTITLED TO THE PAY OF A WARRANT OFFICER WITH MORE THAN NINE AND LESS THAN TWELVE YEAR'S SERVICE.

SECTION 3 OF THE ACT OF MARCH 4, 1925 (43 STAT. 1271), PROVIDES:

"THAT ALL RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS WHO SERVED ON ACTIVE DUTY IN THE NAVY AND MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR SHALL BE CREDITED WITH ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT DURING THE PERIOD FROM APRIL 6, 1917, TO MARCH 3, 1921, IN THE COMPUTATION OF THEIR LONGEVITY PAY.'

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT CHIEF MACHINIST MARTIN HUBER, U.S.N., IS ENTITLED TO AN INCREASE IN RETIRED PAY FROM AND AFTER MARCH 4, 1925, BASED ON THE ACTIVE DUTY PAY OF A WARRANT OFFICER AFTER TWELVE YEARS' SERVICE.

A PROVISION IDENTICAL WITH SECTION 3, SUPRA, AS ENACTED MARCH 4, 1925, WAS CONSIDERED IN EACH SESSION OF THE SIXTY-SEVENTH AND IN THE FIRST SESSION OF THE SIXTY-EIGHTH CONGRESSES, THE AVOWED PURPOSE THEREOF, AS DISCLOSED BY THE HEARINGS AND THE REPORTS OF THE SEVERAL COMMITTEES HAVING THE MATTER IN CHARGE, BEING TO AUTHORIZE FOR RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS WHO SERVED ON ACTIVE DUTY DURING THE WORLD WAR FROM APRIL 6, 1917, TO MARCH 3, 1921, BUT WHO WERE NOT PERMANENTLY PROMOTED, AN INCREASE IN LONGEVITY PAY BY REASON OF THE ACTIVE SERVICE PERFORMED DURING THAT PERIOD ANALOGOUS TO THAT AUTHORIZED FOR OFFICERS WHO WERE PERMANENTLY PROMOTED UNDER THE PROVISIONS IN SECTION 5 OF THE ACT OF JULY 1, 1918, 40 STAT. 717. IN THIS CONNECTION SEE 25 COMP. DEC. 325; 89 MS. ID. 765; 26 COMP. DEC. 306, 409; 27 ID. 78; ALM'S CASE, A.D. 7708, DATED SEPTEMBER 14, 1923, 25 MS. COMP. GEN. 439, AND 5 COMP. GEN. 381.

AT THE DATE OF HIS RETIREMENT, JANUARY 11, 1916, HUBER WAS A WARRANT OFFICER (MACHINIST), HAVING COMPLETED 11 YEARS AND 28 DAYS' SERVICE AS AN ENLISTED MAN AND WARRANT OFFICER, AND UPON BEING RETIRED IN THE GRADE OF CHIEF MACHINIST UNDER SECTION 1453 OF THE REVISED STATUTES AND THE ACT OF MARCH 4, 1911, 36 STAT. 1267, HE WAS PAID UNDER SECTION 1588 OF THE REVISED STATUTES THREE-FOURTHS OF $2,040 PER ANNUM, THE SHORE PAY OF AN ENSIGN AFTER 10 YEARS SERVICE, OR AT $127.50 PER MONTH, AND IT WAS THAT RATE OF PAY HE WAS ENTITLED TO AND RECEIVED ON THE RETIRED LIST PRIOR TO MARCH 4, 1925. UNDER THE SAVING CLAUSE CONTAINED IN THE ACT OF MARCH 3, 1909, 35 STAT. 771, HOWEVER, HE WAS ENTITLED TO BE PAID THREE-FOURTHS OF $2,000 PER ANNUM, THE SEA PAY OF A WARRANT OFFICER IN HIS FOURTH THREE YEARS OF SERVICE, OR AT $125 PER MONTH, HAD THAT RATE BEEN HIGHER THAN THE RETIRED PAY OF A CHIEF MACHINIST WITH LESS THAN SIX YEARS' COMMISSIONED SERVICE WHICH HE HAS BEEN PAID. 6 COMP. DEC. 99; 18 ID. 77; 4 COMP. GEN. 114.

HUBER PERFORMED ACTIVE DUTY SINCE RETIREMENT, BETWEEN APRIL 6, 1917, AND MARCH 3, 1921, OF 2 YEARS 7 MONTHS AND 23 DAYS, FOR WHICH HE IS ENTITLED TO BE CREDITED UNDER SECTION 3 OF THE ACT OF MARCH 4, 1925, SUPRA, IN THE COMPUTING OF HIS LONGEVITY PAY, THUS GIVING HIM TOTAL SERVICE FOR THAT PURPOSE OF 13 YEARS, 8 MONTHS AND 21 DAYS. HAD HE BEEN RETIRED IN THE GRADE OF WARRANT OFFICER THERE IS NO QUESTION BUT THAT HE WOULD BE ENTITLED TO RETIRED PAY SINCE MARCH 4, 1925, AT THREE FOURTHS OF $2,250 PER ANNUM, THE SEA PAY PROVIDED IN SECTION 1556 OF THE REVISED STATUTES AND IN THE ACT OF MAY 13, 1908, 35 STAT. 128, FOR A WARRANT OFFICER AFTER 12 YEARS' SERVICE, OR AT $140.625 PER MONTH. 5 COMP. GEN. 381.

THAT RATE OF PAY BEING HIGHER THAN THREE-FOURTHS OF THE PAY OF AN ENSIGN AFTER 10 YEARS' SERVICE TO WHICH HE IS ENTITLED ON THE RETIRED LIST AS A CHIEF WARRANT OFFICER WITH LESS THAN SIX YEARS COMMISSIONED SERVICE, HE IS ENTITLED, UNDER THE SAVING CLAUSE IN THE ACT OF MARCH 3, 1909, 35 STAT. 771, TO BE PAID AT THAT RATE ON AND AFTER MARCH 4, 1925. ALM'S CASE, A.D. 7708, SEPTEMBER 14, 1923, 25 MS. COMP. GEN. 439, AND 4 COMP. GEN. 114.