A-13961, MAY 15, 1926, 5 COMP. GEN. 912

A-13961: May 15, 1926

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ARMY PAY - LONGEVITY - OFFICER IN COMPUTING HIS LONGEVITY PAY AN OFFICER OF THE ARMY MAY NOT COUNT AS SERVICE THAT PORTION OF HIS ENLISTMENT COVERED BY FURLOUGH TO THE ARMY RESERVE WHEN NO ACTIVE DUTY WAS PERFORMED. AS FOLLOWS: TRANSMITTED HEREWITH IS CLAIM OF CAPT. YOUR DECISION IS REQUESTED AS TO WHETHER I AM AUTHORIZED TO MAKE THIS PAYMENT. FAGG WAS NOT ON ACTIVE DUTY BUT WAS FURLOUGHED IN THE GRADE OF SERGEANT TO THE MEDICAL DEPT. THE LETTER OF CAPTAIN FAGG REFERRED TO IS AS FOLLOWS: 1. THE ATTACHED PAY VOUCHER IS BASED ON MY SERVICE IN ENLISTED REGULAR ARMY RESERVE. TO WHICH SERVICE I WAS FURLOUGHED FROM ENLISTED ACTIVE SERVICE DEC. 29. FROM WHICH I WAS COMMISSIONED MARCH 23. I WAS ON A PAY STATUS OF $2.00 A MONTH.

A-13961, MAY 15, 1926, 5 COMP. GEN. 912

ARMY PAY - LONGEVITY - OFFICER IN COMPUTING HIS LONGEVITY PAY AN OFFICER OF THE ARMY MAY NOT COUNT AS SERVICE THAT PORTION OF HIS ENLISTMENT COVERED BY FURLOUGH TO THE ARMY RESERVE WHEN NO ACTIVE DUTY WAS PERFORMED.

COMPTROLLER GENERAL MCCARL TO MAJ. H. E. PACE, UNITED STATES ARMY, MAY 15, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 30, 1926, AS FOLLOWS:

TRANSMITTED HEREWITH IS CLAIM OF CAPT. L. W. FAGG, INF., D.O.L., FOR DIFFERENCE IN PAY BETWEEN OVER 9 AND OVER 12 YEARS' SERVICE, FROM JANUARY 1, 1925, TO MARCH 22, 1926, SUPPORTED BY LETTER FROM CAPTAIN FAGG, DATED MARCH 27, 1926, WHICH CLAIM HAS BEEN PRESENTED TO ME, IN MYCAPACITY AS DISBURSING OFFICER, FOR PAYMENT.

YOUR DECISION IS REQUESTED AS TO WHETHER I AM AUTHORIZED TO MAKE THIS PAYMENT, IN VIEW OF THE FACT THAT DURING THE PERIOD DEC. 30, 1915, TO MARCH 22, 1917, CAPT. FAGG WAS NOT ON ACTIVE DUTY BUT WAS FURLOUGHED IN THE GRADE OF SERGEANT TO THE MEDICAL DEPT., ARMY RESERVE.

THE LETTER OF CAPTAIN FAGG REFERRED TO IS AS FOLLOWS:

1. THE ATTACHED PAY VOUCHER IS BASED ON MY SERVICE IN ENLISTED REGULAR ARMY RESERVE, TO WHICH SERVICE I WAS FURLOUGHED FROM ENLISTED ACTIVE SERVICE DEC. 29, 1915, AND FROM WHICH I WAS COMMISSIONED MARCH 23, 1917. I OCCUPIED A DIFFERENT STATUS TO THE ORDINARY RESERVIST. I WAS ON A PAY STATUS OF $2.00 A MONTH, AND WAS ENTITLED TO $3.00 A MONTH ADDITIONAL WHEN CALLED TO ACTIVE SERVICE FOR THE TIME I HAD BEEN ON FURLOUGH IN THE ENLISTED REGULAR ARMY RESERVE. I WAS REQUIRED TO SUBMIT REGULAR REPORTS TO THE WAR DEPARTMENT, AND WAS SUBJECTED TO MILITARY DISCIPLINE AND TRAINING IN A WAY THAT DID NOT APPLY TO OTHER CLASSES OF RESERVISTS. WAS COMMISSIONED UNDER THE SAME REGULATIONS AS APPLIED TO AN ENLISTED MAN IN THE ACTIVE SERVICE. OTHER CLASSES OF RESERVISTS WERE NOT PLACED ON THAT STATUS FOR COMMISSIONS IN THE REGULAR ACTIVE SERVICE. OTHER CLASSES OF RESERVISTS WERE NOT ON A PAY STATUS.

THE ARMY REGISTER, 1925, SHOWS THE SERVICE OF CAPTAIN FAGG AS FOLLOWS:

PVT., PVT. 1 CL. AND SGT. HOSP.C. 30 DEC. 12 TO 29 DEC. 15; SGT. M.D. ARMY RES. 30 DEC. 15 TO 22 MAR. 17; 2 LT. OF INF. 19 MAR. 17; ACCEPTED 23 MAR. 17; 1 LT. 19 MAR. 17; ACCEPTED 28 AUG. 17; CAPT. (TEMP.) 5 AUG. 17; ACCEPTED 8 APR. 18; CAPT. 12 OCT. 17; ACCEPTED 8 APR. 18.

IT THUS APPEARS THAT CAPTAIN FAGG ENLISTED DECEMBER 30, 1912, AND AT THE EXPIRATION OF THREE YEARS' CONTINUOUS SERVICE WITH HIS ORGANIZATION, DECEMBER 29, 1915, WAS FURLOUGHED AND TRANSFERRED TO THE ARMY RESERVE, WHERE HE REMAINED UNTIL HE ACCEPTED THE APPOINTMENT AS SECOND LIEUTENANT OF INFANTRY ON MARCH 23, 1917. THE QUESTION PRESENTED IS WHETHER THE TIME HE SPENT ON FURLOUGH AND ATTACHED TO THE RESERVE, DECEMBER 30, 1915, TO MARCH 22, 1917, MAY BE COUNTED IN COMPUTING HIS LONGEVITY PAY AS AN OFFICER FROM JANUARY 1, 1925, TO MARCH 22, 1926.

IT HAS BEEN HELD THAT ONLY ACTIVE SERVICE OR SERVICE ON THE ACTIVE LIST CAN BE COUNTED BY AN OFFICER OF THE ARMY IN COMPUTING HIS LONGEVITY PAY. SEE IN THIS CONNECTION 27 COMP. DEC. 289; 1 COMP. GEN. 75, AND 3 ID. 485; 43 MS. COMP. GEN. 695, A-8221, MARCH 16, 1925.

THE REGULAR ARMY RESERVE WAS ESTABLISHED BY THE ACT OF AUGUST 24, 1912, 37 STAT. 590, 591, AS AMENDED BY THE NATIONAL DEFENSE ACT OF JUNE 3,1916, 39 STAT. 185-188, AND WAS ABOLISHED BY THE ACT OF JUNE 4, 1920, 41 STAT. 775.

THE 1912 ACT PROVIDED THAT ON AND AFTER NOVEMBER 1, 1912, ALL ENLISTMENTS IN THE REGULAR ARMY SHOULD BE FOR THE TERM OF SEVEN YEARS, THE FIRST FOUR YEARS IN THE SERVICE WITH THE ORGANIZATIONS OF WHICH THOSE ENLISTING SHOULD FORM A PART, AND, EXCEPT, AS OTHERWISE PROVIDED THEREIN, THE LAST THREE YEARS ON FURLOUGH AND ATTACHED TO THE ARMY RESERVE THEREIN PROVIDED FOR; THAT ANY ENLISTED MAN, AT THE EXPIRATION OF THREE YEARS' CONTINUOUS SERVICE WITH SUCH ORGANIZATIONS, UPON HIS WRITTEN APPLICATION, MIGHT BE FURLOUGHED AND TRANSFERRED TO THE ARMY RESERVE IN THE DISCRETION OF THE SECRETARY OF WAR; THAT FOR ALL ENLISTMENTS THEREAFTER ACCOMPLISHED UNDER THE PROVISIONS OF THE ACT, FOUR YEARS SHOULD BE COUNTED AS AN ENLISTMENT PERIOD IN COMPUTING CONTINUOUS-SERVICE PAY; THAT THE ARMY RESERVE SHOULD CONSIST OF ALL ENLISTED MEN WHO, AFTER SERVING NOT LESS THAN FOUR YEARS WITH THE ORGANIZATIONS OF WHICH THEY FORM A PART, SHOULD RECEIVE FURLOUGHS WITHOUT PAY OR ALLOWANCES UNTIL THE EXPIRATION OF THEIR TERMS OF ENLISTMENT, TOGETHER WITH TRANSPORTATION IN KIND AND SUBSISTENCE AS PROVIDED FOR BY THE ACT IN THE CASE OF DISCHARGED SOLDIERS, BUT WHEN ANY SOLDIER WAS FURLOUGHED TO THE RESERVE HIS ACCOUNTS SHOULD BE CLOSED AND HE SHOULD BE PAID IN FULL TO THE DATE SUCH FURLOUGH BECAME EFFECTIVE; THAT IN THE EVENT OF ACTUAL OR THREATENED HOSTILITIES THE PRESIDENT MIGHT SUMMON ALL FURLOUGHED SOLDIERS WHO BELONG TO THE ARMY RESERVE TO REJOIN THEIR RESPECTIVE ORGANIZATIONS, AND DURING THE CONTINUANCE OF THEIR SERVICE WITH SUCH ORGANIZATIONS THEY SHOULD RECEIVE THE PAY AND ALLOWANCES AUTHORIZED BY LAW FOR SOLDIERS SERVING THEREIN.

THE 1916 ACT PROVIDED THAT ON AND AFTER NOVEMBER 1, 1916, THE FIRST THREE YEARS OF THE ENLISTMENT WERE TO BE IN ACTIVE SERVICE WITH THE ORGANIZATION OF WHICH THOSE ENLISTED FORM A PART, AND, EXCEPT AS OTHERWISE PROVIDED THEREIN, THE LAST FOUR YEARS IN THE REGULAR ARMY RESERVE; THAT IN ALL ENLISTMENTS THEREAFTER ACCOMPLISHED THREE YEARS SHOULD BE COUNTED AS AN ENLISTMENT PERIOD IN COMPUTING CONTINUOUS SERVICE PAY; THAT SUBJECT TO SUCH REGULATIONS AS THE PRESIDENT MIGHT PRESCRIBE FOR THEIR PROPER IDENTIFICATION AND LOCATION, AND PHYSICAL CONDITION, THE MEMBERS OF THE REGULAR ARMY RESERVE SHOULD BE PAID SEMIANNUALLY AT THE RATE OF $24 A YEAR WHILE IN THE RESERVE; THAT SERVICE IN THE REGULAR ARMY RESERVE SHOULD CONFER NO RIGHT TO RETIREMENT OR RETIRED PAY, AND THE MEMBERS SHOULD BECOME ENTITLED TO PENSION ONLY THROUGH DISABILITY INCURRED WHILE ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES; THAT THE PRESIDENT WAS AUTHORIZED TO SUMMON THE REGULAR ARMY RESERVE OR ANY PART THEREOF FOR FIELD TRAINING FOR A PERIOD NOT EXCEEDING 15 DAYS IN EACH YEAR, THE RESERVISTS TO RECEIVE TRAVEL EXPENSES AND PAY AT THE RATE OF THEIR RESPECTIVE GRADES IN THE REGULAR ARMY DURING SUCH PERIODS OF TRAINING; THAT UPON REPORTING FOR DUTY UNDER THE CALL OF THE PRESIDENT, AND BEING FOUND PHYSICALLY FIT FOR SERVICE, MEMBERS OF THE REGULAR ARMY RESERVE SHOULD RECEIVE A SUM EQUAL TO $3 PER MONTH FOR EACH MONTH DURING WHICH THEY SHOULD HAVE BELONGED TO THE RESERVE.

IT THUS APPEARS THAT A SOLDIER ON FURLOUGH IN THE RESERVE WHILE SUBJECT TO CALL TO ACTIVE DUTY WITH THE ARMY, WAS NOT ON ACTIVE DUTY WHILE ON FURLOUGH. ACTIVE DUTY IN THE MILITARY SENSE AND AS CONTEMPLATED BY SAID ACTS WAS DUTY WITH THE ORGANIZATIONS OF THE ARMY FOR WHICH THE SOLDIER WAS ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF HIS GRADE, AND NOT THE DUTIES REQUIRED OF HIM WHILE ON FURLOUGH AS A RESERVIST. THAT A SOLDIER WHILE ON FURLOUGH WAS NOT TO BE CONSIDERED AS ON ACTIVE DUTY AND ENTITLED TO THE BENEFITS OF SUCH STATUS IS APPARENT FROM THE PROVISIONS IN SAID ACTS OF 1912 AND 1916 IN EFFECT EXCLUDING SUCH SERVICE IN COMPUTING CONTINUOUS-SERVICE PAY (22 COMP. DEC. 692), AND FOR RETIREMENT, AND DENYING THE RIGHT TO PENSION FOR DISABILITY INCURRED WHILE NOT ON ACTIVE DUTY.

YOU ARE ADVISED THEREFORE THAT CAPTAIN FAGG WAS NOT ON ACTIVE DUTY DURING THE PERIOD FROM DECEMBER 30, 1915, TO MARCH 22, 1917, WHEN HE WAS IN THE ARMY RESERVE, NOT WITH THE COLORS, SAID PERIOD CAN NOT BE COUNTED IN COMPUTING HIS LONGEVITY PAY.