A-14656, JUNE 21, 1926, 5 COMP. GEN. 1001

A-14656: Jun 21, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A RETIRED BAND LEADER OF THE NAVAL ACADEMY BAND WHO WAS RETIRED PRIOR TO JULY 1. IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASE PAY OF THE SECOND PERIOD. IS ENTITLED UNDER THE ACT OF MAY 8. RETIREMENT ARISING FROM LONGEVITY * * * AS ARE OR MAY HEREAFTER BECOME APPLICABLE TO OTHER OFFICERS * * * OF THE NAVY. * * * WHO WERE RETIRED ON OR BEFORE JUNE 30. WHOSE PAY UNDER EXISTING LAW IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER OF ONE OF THE ABOVE GRADES. IT IS STATED THAT TOROVSKY WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY AFTER 30 YEARS' SERVICE IN THE NAVAL ACADEMY BAND ON DECEMBER 31. HE WAS ENTITLED TO THE SAME PAY AND EMOLUMENTS UPON RETIREMENT AS A FIRST LIEUTENANT IN THE MARINE CORPS WITH LIKE LENGTH OF SERVICE.

A-14656, JUNE 21, 1926, 5 COMP. GEN. 1001

RETIRED PAY - NAVAL ACADEMY BAND LEADER UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, A RETIRED BAND LEADER OF THE NAVAL ACADEMY BAND WHO WAS RETIRED PRIOR TO JULY 1, 1922, IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASE PAY OF THE SECOND PERIOD, AS PROVIDED IN THE ACT OF JUNE 10, 1922, 42 STAT. 626.

COMPTROLLER GENERAL MCCARL TO CAPT. GEORGE G. SEIBELS, UNITED STATES NAVY, JUNE 21, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 28, 1926, REQUESTING DECISION WHETHER ADOLPH TOROVSKY, RETIRED BAND LEADER, NAVAL ACADEMY BAND, IS ENTITLED UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, TO RETIRED PAY BASED UPON 75 PERCENT OF THE BASE PAY OF THE SECOND PERIOD, $2,000 PER ANNUM PLUS 50 PERCENT FOR LONGEVITY, OR TO 75 PERCENT OF THE PAY OF THE THIRD PERIOD, $2,400 PLUS 50 PERCENT FOR LONGEVITY.

THE ACT OF JULY 11, 1919, 41 STAT. 152, PROVIDES:

* * * THE NAVAL ACADEMY BAND SHALL HEREAFTER CONSIST OF ONE LEADER, WITH PAY AND ALLOWANCES OF FIRST LIEUTENANT IN THE MARINE CORPS; * * * AND THE SAID LEADER OF THE BAND, * * * SHALL BE ENTITLED TO THE SAME BENEFITS IN RESPECT TO PAY, EMOLUMENTS, AND RETIREMENT ARISING FROM LONGEVITY * * * AS ARE OR MAY HEREAFTER BECOME APPLICABLE TO OTHER OFFICERS * * * OF THE NAVY.

THE ACT OF MAY 8, 1926, 44 STAT. 417, PROVIDES:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE * * * NAVY, MARINE CORPS, * * * WHO WERE RETIRED ON OR BEFORE JUNE 30, 1922, SHALL NOT BE LESS THAN THAT PROVIDED FOR THE OFFICERS AND WARRANT OFFICERS OF THESE SERVICES OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: * * *.

SECTION 1 OF THE ACT OF JUNE 10, 1922, PROVIDES:

THE PROVISIONS OF THIS ACT SHALL APPLY EQUALLY TO THOSE PERSONS SERVING, NOT AS COMMISSIONED OFFICERS IN THE ARMY, OR IN THE OTHER SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT WHOSE PAY UNDER EXISTING LAW IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER OF ONE OF THE ABOVE GRADES, THOSE RECEIVING THE PAY OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT, BEING CLASSIFIED AS IN THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY.

IT IS STATED THAT TOROVSKY WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY AFTER 30 YEARS' SERVICE IN THE NAVAL ACADEMY BAND ON DECEMBER 31, 1921. UNDER THE ACT OF JULY 11, 1919, HE WAS ENTITLED TO THE SAME PAY AND EMOLUMENTS UPON RETIREMENT AS A FIRST LIEUTENANT IN THE MARINE CORPS WITH LIKE LENGTH OF SERVICE--- THAT IS, TO THREE-FOURTHS OF THE HIGHEST PAY OF HIS GRADE. ACT OF MAY 13, 1908, 35 STAT. 128. HIS RETIRED PAY WAS NOT AFFECTED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, THAT ACT PROVIDING THAT NOTHING CONTAINED THEREIN SHOULD AUTHORIZE AN INCREASE IN THE PAY OF OFFICERS OR WARRANT OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922. THE ACT OF MAY 8, 1926, EQUALIZES THE PAY OF RETIRED OFFICERS OF THE SERVICES INCLUDED IN THE ACT OF JUNE 10, 1922, BY PROVIDING THAT THOSE OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922, SHOULD NOT HAVE LESS PAY THAN OFFICERS OF EQUAL RANK AND LENGTH OF SERVICE RETIRED AFTER JUNE 30, 1922. UNDER THAT ACT OFFICERS RETIRED PRIOR TO JULY 1, 1922, ARE ENTITLED TO RETIRED PAY COMPUTED ON THE RATES OF PAY PROVIDED IN THE ACT OF JUNE 10, 1922, IF HIGHER THAN THEIR RETIRED PAY UNDER PRIOR LAWS. BY REASON OF THAT PROVISION, FROM DATE THEREOF, TOROVSKY IS ENTITLED TO RETIRED PAY OF THE GRADE IN WHICH RETIRED COMPUTED ON THE RATES OF PAY PROVIDED FOR HIS GRADE IN THE ACT OF JUNE 10, 1922.

THE ACT OF JULY 11, 1919, GAVE TO THE LEADER OF THE NAVAL ACADEMY BAND THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT IN THE MARINE CORPS WITH LIKE LENGTH OR SERVICE ON EITHER THE ACTIVE OR RETIRED LIST. SECTION 1 OF THE ACT OF JUNE 10, 1922, EXPRESSLY PROVIDES A PAY PERIOD FOR PERSONS WHO ARE NOT COMMISSIONED OFFICERS BUT WHOSE PAY UNDER PRIOR LAWS IS AN AMOUNT EQUIVALENT TO THAT OF A COMMISSIONED OFFICER, ALLOTTING TO THOSE RECEIVING THE PAY OF A FIRST LIEUTENANT THE SECOND PAY PERIOD.

TOROVSKY IS NOT A COMMISSIONED OFFICER, BUT A PERSON WHOSE PAY WAS EQUIVALENT TO THAT OF A COMMISSIONED OFFICER--- A FIRST LIEUTENANT IN THE MARINE CORPS--- ON JUNE 30, 1922, AND FOR SUCH PERSON THE ACT PRESCRIBES THE PAY OF THE SECOND PERIOD. THE ACT OF JUNE 10, 1922, IN SO LIMITING THE PAY OF THE LEADER OF THE NAVAL ACADEMY BAND IS IN CONFLICT WITH THE PROVISIONS OF THE ACT OF JULY 11, 1919, WHICH AUTHORIZED FULL ASSIMILATION TO THE PAY OF A FIRST LIEUTENANT OF THE MARINE CORPS, AND THEREFORE REPEALS THAT PROVISION SO FAR AS IN CONFLICT THEREWITH. 4 COMP. GEN. 942.

ACCORDINGLY, UNDER THE ACT OF MAY 8, 1926, TOROVSKY IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASE PAY OF THE SECOND PERIOD ONLY, OR THREE- FOURTHS OF $2,000 PER ANNUM PLUS 50 PERCENT FOR LONGEVITY.