A-15323, OCTOBER 23, 1926, 6 COMP. GEN. 281

A-15323: Oct 23, 1926

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ARE NOT ENTITLED IN COMPUTING THEIR RETIRED PAY UNDER THE ACT OF MAY 8. ADDITIONAL LUSTRUMS OF SERVICE CREDITED TO THE PRESENT TIME UNDER THAT DECISION WILL NOT BE QUESTIONED IN THE SETTLEMENT OF ACCOUNTS. WHO WERE RETIRED ON OR BEFORE JUNE 30. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED. RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY. WHO WERE HELD TO BE ENTITLED TO COUNT SUCH ACTIVE SERVICE SUBSEQUENT TO RETIREMENT IN COMPUTING THEIR BASE PAY UNDER SECTION 1 OF THE ACT OF JUNE 10. THE THOUGHT BEING THAT THE LAW ON WHICH THAT DECISION WAS BASED POSSIBLY ALSO APPLIED TO OFFICERS OF THE MARINE CORPS UNDER SECTIONS 1612 AND 1622. THE VIEW COULD HAVE BEEN TAKEN UNDER THE ACT OF MAY 8.

A-15323, OCTOBER 23, 1926, 6 COMP. GEN. 281

PAY - RETIRED - UNITED STATES MARINE CORPS OFFICERS OFFICERS THE UNITED STATES MARINE CORPS RETIRED PRIOR TO JUNE 30, 1922, ARE NOT ENTITLED IN COMPUTING THEIR RETIRED PAY UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, TO CREDIT FOR ACTIVE SERVICE SINCE RETIREMENT BY REASON OF ANY OF THE STATUTES ACCORDING SUCH CREDIT TO OFFICERS OF THE ARMY. 23 COMP. DEC. 715, REVERSED, BUT ADDITIONAL LUSTRUMS OF SERVICE CREDITED TO THE PRESENT TIME UNDER THAT DECISION WILL NOT BE QUESTIONED IN THE SETTLEMENT OF ACCOUNTS.

COMPTROLLER GENERAL MCCARL TO CAPT. L. L. DYE, UNITED STATES MARINE CORPS, OCTOBER 23, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1926, REQUESTING DECISION AS TO THE PAY AUTHORIZED FOR THE FOLLOWING OFFICERS ON THE RETIRED LIST OF THE MARINE CORPS UNDER THE PROVISIONS OF THE ACT OF MAY 8, 1926, 44 STAT. 417;

MAJ. HENRY LEONARD, U.S.M.C. SECOND LIEUT. ARCHIE W. FRENCH, U.S.M.C. SECOND LIEUT. ROBERT G. ROBINSON, U.S.M.C. LIEUT. COL. CHARLES B. HATCH, U.S.M.C.

THE ACT IN QUESTION PROVIDES:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, 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: PROVIDED, THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER OR WARRANT OFFICER NOW ON THE RETIRED LIST.

SEC. 2. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

THIS PROVISION OPERATED TO REPEAL FROM AND AFTER ITS DATE THE SENTENCE CONTAINED IN THE TENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 626, THAT "NOTHING CONTAINED IN THE FIRST SENTENCE OF SECTION 17 OR IN ANY OTHER SECTION OF THIS ACT SHALL AUTHORIZE AN INCREASE IN THE PAY OF OFFICERS OR WARRANT OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922.'

SECTION 17 OF THE ACT OF JUNE 10, 1922, 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. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICERS TO PROMOTION: PROVIDED, THAT OFFICERS AND FORMER OFFICERS OF THE PHILIPPINE SCOUTS WHO WHERE PLACED ON THE RETIRED LIST PRIOR TO JUNE 4, 1920, SHALL BE ENTITLED TO PROMOTION ON THE RETIRED LIST FOR ACTIVE DUTY HERETOFORE PERFORMED SUBSEQUENT TO RETIREMENT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 127A OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, AND TO THE SAME PAY AND BENEFITS RECEIVED BY OTHER OFFICERS OF THE ARMY OF LIKE GRADE AND LENGTH OF SERVICE, ON THE RETIRED LIST.

YOUR DOUBT ARISES BECAUSE OF CERTAIN DECISIONS RELATING TO RETIRED OFFICERS OF THE ARMY WHO HAD ACTIVE DUTY SUBSEQUENT TO RETIREMENT AND PRIOR TO JUNE 30, 1922, AND WHO WERE HELD TO BE ENTITLED TO COUNT SUCH ACTIVE SERVICE SUBSEQUENT TO RETIREMENT IN COMPUTING THEIR BASE PAY UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, 5 COMP. GEN. 1038, THE THOUGHT BEING THAT THE LAW ON WHICH THAT DECISION WAS BASED POSSIBLY ALSO APPLIED TO OFFICERS OF THE MARINE CORPS UNDER SECTIONS 1612 AND 1622, REVISED STATUTES.

THE VIEW COULD HAVE BEEN TAKEN UNDER THE ACT OF MAY 8, 1926, THAT THE BASIS OF ASSIMILATION WAS TO OFFICERS RETIRED SUBSEQUENT TO JUNE 30, 1922, AND WHO, UNDER SECTION 17 OF THE ACT OF JUNE 10, 1922, MAY NOT COUNT ACTIVE SERVICE SUBSEQUENT TO RETIREMENT FOR PURPOSE OF PROMOTION AND THAT THEREFORE IN THE COMPUTATION OF PAY OF OFFICERS BENEFITED BY THE ACT OF MAY 8, 1926, NO ACTIVE SERVICE SUBSEQUENT TO RETIREMENT WAS AUTHORIZED TO BE COUNTED. IN VIEW OF THE LEGISLATIVE HISTORY OF THE ACT AND ITS OBVIOUS PURPOSE TO REMOVE THE INEQUALITY CREATED BY THE SENTENCE IN SECTION 1 OF THE ACT OF 1922, QUOTED ABOVE, AND THE FACT THAT SUCH A CONSTRUCTION WOULD CREATE GREATER INEQUALITIES AMONG OFFICERS OF THE ARMY ON THE RETIRED LIST JUNE 30, 1922, IT WAS HELD THAT IT OPERATED PRIMARILY AS A REPEAL OF THE SENTENCE QUOTED, AND OPERATED TO PLACE RETIRED OFFICERS OF THE ARMY RETIRED PRIOR TO JULY 1, 1922, ON MAY 8, 1926, IN THE SITUATION THEY WOULD HAVE BEEN HAD THE LAW BEEN ON THAT DATE AS IT WAS ON MAY 8, 1926, AND THAT SERVICE SUBSEQUENT TO THEIR RETIREMENT AND PRIOR TO JUNE 30, 1922, WHICH MIGHT HAVE BEEN COUNTED FOR PROMOTION UNDER LAWS IN EFFECT JUNE 30, 1922, MIGHT BE INCLUDED IN COMPUTING THEIR PAY UNDER THE ACT OF MAY 8, 1926, 5 COMP. GEN. 1038. THAT DECISION COULD BE APPLICABLE TO RETIRED OFFICERS OF THE MARINE CORPS ONLY IF THE ARMY LAWS GOVERNING PROMOTION AFTER RETIREMENT, WHEN IN EFFECT, WERE APPLICABLE TO THE MARINE CORPS.

THE FIRST PROVISION FOR PROMOTION OF RETIRED OFFICERS OF THE ARMY FOR ACTIVE SERVICE AFTER RETIREMENT WAS CONTAINED IN SECTION 24 OF THE ACT OF JUNE 3, 1916, 39 STAT. 183, AUTHORIZING THE PROMOTION OF SUCH OFFICERS THERETOFORE OR THEREAFTER DETAILED TO ACTIVE DUTY TO A GRADE NOT ABOVE THAT OF MAJOR THAT THE OFFICER WOULD HAVE ATTAINED IN DUE COURSE OF PROMOTION HAD HE REMAINED ON THE ACTIVE LIST FOR A PERIOD BEYOND THE DATE OF RETIREMENT EQUAL TO THE TOTAL AMOUNT OF TIME HE WAS DETAILED TO ACTIVE DUTY AFTER HIS RETIREMENT. THIS WAS AMENDED BY THE ACT OF JULY 9, 1918, 40 STAT. 890, TO INCLUDE PROMOTION TO THE GRADE OF COLONEL AND WAS CARRIED INTO THE NATIONAL DEFENSE ACT BY THE AMENDMENT THEREOF JUNE 4, 1920, AS THE NINTH PARAGRAPH OF SECTION 127A 41 STAT. 786.

IT HAS BEEN RECENTLY HELD IN SEVERAL CASES, CITING BRISTOW V. UNITED STATES, 47 CT.CLS. 46, THAT TO THE EXTENT PROVISION IS MADE SPECIFICALLY BY STATUTE FOR THE PAY OR ALLOWANCES OF PERSONNEL OF THE MARINE CORPS, SECTION 1612, IS INAPPLICABLE. ADMINISTRATIVELY IT WAS DETERMINED THAT UNDER SECTION 1622, REVISED STATUTES, PROVIDING THAT COMMISSIONED OFFICERS OF THE MARINE CORPS SHOULD BE RETIRED IN LIKE CASES, IN THE SAME MANNER, AND THE SAME RELATIVE CONDITIONS IN ALL RESPECTS AS ARE PROVIDED FOR OFFICERS OF THE ARMY, DID NOT AUTHORIZE PROMOTION OF RETIRED OFFICERS OF THE MARINE CORPS FOR ACTIVE DUTY SUBSEQUENT TO RETIREMENT. SEE COMPILATION OF NAVY LAWS UNDER SECTION 1622, REVISED STATUTES, PAGE 967, AND JONAS V. UNITED STATES, 50 CT.CLS. 281. BY THE ACT OF AUGUST 29, 1916, 39 STAT. 581, PROVISION WAS MADE FOR THE PROMOTION OF RETIRED NAVY AND MARINE CORPS OFFICERS DETAILED TO ACTIVE DUTY SUBSTANTIALLY IN THE SAME LANGUAGE AS IN THE ARMY ACT OF JUNE 3, 1916, FOR ARMY OFFICERS, BUT THE MARINE CORPS LAW LIMITED THE PROMOTION TO THE PERIOD "WHILE SO SERVING" ON ACTIVE DUTY. BY THE ACT OF JULY 1, 1918, 40 STAT. 717, THE EMPLOYMENT ON ACTIVE DUTY DURING WAR OR NATIONAL EMERGENCY OF RETIRED OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD WAS AUTHORIZED, AND PROVISION MADE THAT SUCH OFFICERS SO EMPLOYED ON ACTIVE DUTY DURING WAR SHOULD BE ENTITLED TO PROMOTION ON THE RETIRED LIST TO THE GRADE OR RANK NOT ABOVE MAJOR IN THE MARINE CORPS AND SHOULD THEREAFTER RECEIVE THE PAY AND ALLOWANCES THEREFOR WHICH THEIR TOTAL ACTIVE SERVICE, BOTH BEFORE AND AFTER RETIREMENT, WOULD HAVE ENTITLED THEM TO ATTAIN IN DUE COURSE OF PROMOTION HAD SUCH SERVICE BEEN RENDERED CONTINUOUSLY ON THE ACTIVE LIST. THIS WAS SUBSTANTIALLY IDENTICAL WITH THE PROMOTION PROVISION FOR RETIRED ARMY OFFICERS IN THE ACT OF JUNE 3, 1916, BUT THE CREDIT FOR SERVICE WAS LIMITED TO ACTIVE SERVICE RENDERED IN TIME OF WAR. SECTION 3 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1271, PROVIDES THAT ALL RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE NAVY AND MARINE CORPS WHO SERVED ON ACTIVE DUTY IN THE NAVY OR MARINE CORPS DURING THE WORLD WAR SHALL BE CREDITED WITH ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT DURING THE PERIOD APRIL 6, 1917, TO MARCH 3, 1921, IN THE COMPUTATION OF THEIR LONGEVITY PAY, AND IS A PROVISION FOR SUCH CREDIT TO OFFICERS WHO WERE NOT ENTITLED TO PROMOTION UNDER THE ACT OF JULY 1, 1918.

THESE SPECIFIC STATUTORY PROVISIONS FOR MARINE CORPS OFFICERS GRANTING BENEFITS LESS IN EACH CASE THAN THE PROVISIONS MADE BY THE ACTS APPLICABLE TO OFFICERS OF THE ARMY INDICATE CLEARLY MARINE CORPS OFFICERS ARE NOT WITHIN THE PROVISIONS OF THE ARMY ACTS RESPECTING PROMOTION AFTER RETIREMENT. SO, ALSO, WITH RESPECT TO THE ACT OF MAY 12, 1917, 40 STAT. 48, ENACTED TO OVERCOME THE EFFECT OF THE DECISION OF THE COMPTROLLER OF THE TREASURY, 23 COMP. DEC. 58; IT IS A PROVISION EXCLUSIVELY APPLICABLE TO OFFICERS OF THE ARMY, THE PROVISIONS IN THIS RESPECT SPECIFICALLY APPLICABLE TO OFFICERS OF THE MARINE CORPS BEING FOUND IN THE ACTS ABOVE CITED. ADDITIONAL LUSTRUMS OF LONGEVITY CREDIT ALLOWED RETIRED OFFICERS OF THE MARINE CORPS UNDER THE DECISION OF THE COMPTROLLER OF THE TREASURY, 23 COMP. DEC. 715, WILL NOT BE QUESTIONED IN THE SETTLEMENT OF ACCOUNTS BUT INCREASED LONGEVITY PAY FOR FURTHER CREDIT FOR ACTIVE SERVICE AFTER RETIREMENT MAY NOT BE ALLOWED; AND THAT DECISION WILL NOT HEREAFTER BE FOLLOWED.

ANSWERING YOUR QUESTION SPECIFICALLY:

MAJ. HENRY LEONARD IS SHOWN TO HAVE HAD 13 YEARS, 1 MONTH, AND 26 DAYS' SERVICE AT TIME OF RETIREMENT, SEPTEMBER 30, 1911, FOR WOUNDS RECEIVED IN BATTLE, AND A TOTAL SERVICE FOR COMPUTATION OF LONGEVITY CREDIT BY REASON OF BEING RETIRED FOR WOUNDS OF 27 YEARS. HIS RETIRED PAY UNDER THE ACT OF JUNE 10, 1922, WOULD BE THE BASE PAY OF THE THIRD PERIOD INCREASED BY 45 PERCENT, THREE-FOURTHS OF $3,480 A YEAR, OR $2,610. AS THIS IS LESS THAN HIS RETIRED PAY UNDER THE ACT OF MAY 11, 1908, HE IS NOT BENEFITED BY THE ACT OF MAY 8, 1926.

SECOND LIEUT. ARCHIE W. FRENCH IS SHOWN TO HAVE BEEN RETIRED OCTOBER 31, 1921, AS A TEMPORARY OFFICER OF THE MARINE CORPS UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, 41 STAT. 834, BY REASON OF WOUNDS RECEIVED IN ACTION AFTER A TOTAL SERVICE (COMMISSIONED ONLY) OF 3 YEARS, 2 MONTHS, AND 22 DAYS, AND 2 YEARS AND 4 MONTHS' SERVICE IN THE NATIONAL GUARD OR ORGANIZED MILITIA NOT IN FEDERAL SERVICE, FOR 75 PERCENT OF WHICH, UNDER THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, HE IS ENTITLED TO CREDIT FOR PAY PURPOSES, 1 YEAR AND 9 MONTHS, A TOTAL SERVICE OF 4 YEARS, 11 MONTHS, AND 22 DAYS AT DATE OF RETIREMENT ON WHICH HIS BASE OR PERIOD PAY MUST BE BASED, AND AS HE WAS RETIRED FOR WOUNDS, RECEIVED IN ACTION AGAINST AN ORGANIZED ENEMY A TOTAL SERVICE TO MAY 8, 1926, FOR THE PURPOSE OF LONGEVITY INCREASE OF PAY OF 10 YEARS, 6 MONTHS. HE IS ENTITLED TO RETIRED PAY BASED ON PAY OF THE FIRST PERIOD INCREASED BY 15 PERCENT, THREE FOURTHS OF $1,725, OR $1,293.75 PER ANNUM. AS THIS IS LESS THAN HIS PAY UNDER THE ACT OF 1908, HE IS NOT BENEFITED BY THE ACT OF MAY 8, 1926.

SECOND LIEUT. ROBERT G. ROBINSON, U.S.M.C. THE ACT OF JULY 12, 1921, 42 STAT. 140, AMENDING SECTION 2 OF THE ACT OF JUNE 4, 1920, 41 STAT. 834, PROVIDES:

THAT ALL OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED OR MAY HEREAFTER INCUR PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR SHALL BE ELIGIBLE FOR RETIREMENT UNDER THE SAME CONDITIONS AS NOW PROVIDED BY LAW FOR OFFICERS OF THE REGULAR NAVY WHO HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY: PROVIDED, HOWEVER, THAT APPLICATION FOR SUCH RETIREMENT SHALL BE FILED WITH THE SECRETARY OF THE NAVY NOT LATER THAN OCTOBER 1, 1921.

PRIVATE ACT NO. 166 OF FEBRUARY 14, 1923, 42 STAT. 1770, PROVIDES:

THAT SO MUCH OF SECTION 6 OF THE NAVAL APPROPRIATION ACT APPROVED JULY 12, 1921, AS PROVIDED THAT THE APPLICATION FOR RETIREMENT OF OFFICERS OF THE NAVAL RESERVE FORCE AND TEMPORARY OFFICERS OF THE NAVY WHO HAVE HERETOFORE INCURRED, OR WHO MAY HEREAFTER INCUR, PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR SHALL BE FILED WITH THE SECRETARY OF THE NAVY NOT LATER THAN OCTOBER 1, 1921, BE, AND HEREBY IS, WAIVED IN THE CASE OF SECOND LIEUTENANT (PROVISIONAL) ROBERT GUY ROBINSON, MARINE CORPS RESERVE, INACTIVE, AND HIS CASE IS HEREBY AUTHORIZED TO BE CONSIDERED AND ACTED UPON UNDER THE REMAINING PROVISIONS OF SAID SECTION IF HIS APPLICATION FOR RETIREMENT IS FILED NOT LATER THAN SIXTY DAYS FROM THE APPROVAL OF THIS ACT.

YOUR STATEMENT RESPECTING ROBINSON IS AS FOLLOWS:

C. 2ND LIEUT. ROBERT G. ROBINSON, U.S.M.C., RETIRED MAY 25, 1923, BY SPECIAL ACT OF CONGRESS, APPROVED FEBRUARY 14, 1923, 42 STAT. 1770. THE RECORDS OF THESE HEADQUARTERS (LETTER A. AND I. 01658-1 ACC-FP, DATED JUNE 1, 1923), SHOW HIS SERVICE AS FOLLOWS:

FROM--- TO--- ENLISTED SERVICE IN U.S.M.C. ----------------- MAY 22, 1917 JUNE 16, 1919 COMMISSIONED SERVICE IN U.S.M.C.R. (INACTIVE) JUNE 17, 1919 MAY 25, 1923

(RETIRED)

FOUND INCAPACITATED FOR ACTIVE SERVICE BY REASON OF GUNSHOT WOUNDS RESULTING IN DESTRUCTION OF LEFT ELBOW JOINT, RECEIVED IN THE LINE OF DUTY WHILE IN ACTION. * * *

THE ONLY ACTIVE DUTY SHOWN BY THIS REPORT IS ENLISTED SERVICE IN THE UNITED STATES MARINE ORPS; THE DISABILITY MUST HAVE BEEN INCURRED WHILE IN AN ENLISTED STATUS, AND AS HIS "SERVICE" AS AN OFFICER IN THE MARINE CORPS RESERVE WAS WHILE IN AN INACTIVE STATUS THE ACT OF JUNE 12, 1921, IS APPARENTLY NOT APPLICABLE THERETO. ON THE FACTS PRESENTED, THE STATUS OF ROBINSON ON THE RETIRED LIST OF THE MARINE CORPS IS NOT UNDERSTOOD. VIEW OF THESE FACTS NO DECISION AS TO HIS PAY MAY BE RENDERED TO YOU. LIEUT.COL. CHARLES B. HATCH, U.S.M.C., WAS RETIRED FOR AN INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE OCTOBER 17, 1916, AFTER 18 YEARS, 2 MONTHS, AND 22 DAYS' SERVICE. HE HAS HAD ACTIVE SERVICE SINCE RETIREMENT OF 3 YEARS, 2 MONTHS, AND 2 DAYS. UNDER THE ACT OF JUNE 10, 1922, HE IS ENTITLED TO PAY BASED ON THE PAY OF THE FOURTH PERIOD, A LIEUTENANT COLONEL OF LESS THAN 20 YEARS' SERVICE, INCREASED BY 30 PERCENT, THREE-FOURTHS OF $3,900, OR $2,975 PER ANNUM. AS THIS IS LESS THAN HE IS RECEIVING UNDER THE ACT OF MAY 11, 1908, HE IS NOT BENEFITED BY THE ACT OF MAY 8, 1926.