A-15323, A-23621, JULY 31, 1928, 8 COMP. GEN. 48

A-15323,A-23621: Jul 31, 1928

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A RETIRED OFFICER OF THE MARINE CORPS IS ENTITLED. TO CREDIT FOR ALL SERVICE AT DATE OF RETIREMENT WHICH IS AUTHORIZED TO BE COUNTED FOR PAY PURPOSES. THE INCREASED RETIRED PAY IS NOT EFFECTIVE PRIOR TO MAY 26. WHO WERE RETIRED PRIOR TO JUNE 30. THERE IS ALSO FOR CONSIDERATION IN THIS CONNECTION THE REQUEST OF JANUARY 16. WHERE WAS CONSIDERED THE RETIRED PAY OF CERTAIN RETIRED OFFICERS OF THE MARINE CORPS UNDER THE ACT OF MAY 8. IS HEREBY FURTHER AMENDED BY INSERTING AFTER THE WORDS "PROVIDED IN THIS ACT. SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST. WHO WERE RETIRED ON OR BEFORE JUNE 30. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

A-15323, A-23621, JULY 31, 1928, 8 COMP. GEN. 48

PAY - MARINE CORPS OFFICER - ACTIVE SERVICE AFTER RETIREMENT UNDER THE ACTS OF MAY 8, 1926, 44 STAT. 417, AND MAY 26, 1928, 45 STAT. 774, A RETIRED OFFICER OF THE MARINE CORPS IS ENTITLED, IN DETERMINING HIS BASE OR PERIOD PAY AND HIS LONGEVITY PAY, TO CREDIT FOR ALL SERVICE AT DATE OF RETIREMENT WHICH IS AUTHORIZED TO BE COUNTED FOR PAY PURPOSES, PLUS ALL PERIODS OF ACTIVE DUTY SINCE RETIREMENT, BUT THE INCREASED RETIRED PAY IS NOT EFFECTIVE PRIOR TO MAY 26, 1928, DATE OF THE ENACTMENT.

COMPTROLLER GENERAL MCCARL TO CAPT. L. PASSMORE, UNITED STATES MARINE CORPS, JULY 31, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 27, 1928, REQUESTING DECISION AS TO THE RETIRED PAY OF FOUR OFFICERS OF THE MARINE CORPS UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, WHO WERE RETIRED PRIOR TO JUNE 30, 1922. THERE IS ALSO FOR CONSIDERATION IN THIS CONNECTION THE REQUEST OF JANUARY 16, 1928, OF THE PAYMASTER OF THE MARINE CORPS FOR FURTHER CONSIDERATION OF DECISION 6 COMP. GEN. 281, WHERE WAS CONSIDERED THE RETIRED PAY OF CERTAIN RETIRED OFFICERS OF THE MARINE CORPS UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, IN VIEW OF CERTAIN EXPRESSIONS IN THE OPINION OF THE COURT OF CLAIMS IN THE CASE OF HENRY LEONARD V. UNITED STATES, COURT OF CLAIMS NO. H-52, DECIDED JANUARY 9, 1928.

THE ACT OF MAY 26, 1928, 45 STAT. 774, PROVIDES:

THAT SECTION 17 OF THE ACT APPROVED JUNE 10, 1922, ENTITLED "AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," AS AMENDED, IS HEREBY FURTHER AMENDED BY INSERTING AFTER THE WORDS "PROVIDED IN THIS ACT," AND BEFORE THE NEXT PROVISO, LINE 3 OF SAID SECTION, THE FOLLOWING: "WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS.'

AND AFTER THE PHRASE,"RECEIVE FULL PAY AND ALLOWANCES," AT THE END OF THE LAST LINE OF SAID SECTION, BY CHANGING THE PERIOD TO A COMMA AND INSERTING THEREAFTER THE FOLLOWING: "AND WHEN ON ACTIVE-DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, AND IF DEATH OCCURS WHEN ON ACTIVE DUTY STATUS, WHILE ON LEAVE OF ABSENCE OR SICK, THEIR DEPENDENTS SHALL NOT THEREBY BE DEPRIVED OF THE BENEFITS PROVIDED IN ACT APPROVED DECEMBER 17, 1919, AS AMENDED, AND IN THE ACT OF JUNE 4, 1920: PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THE PASSAGE OF THIS ACT.'

THE JOINT-SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 625, CONTAINED IN SECTION 1 A PROVISION 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.' THEREAFTER THE ACT OF MAY 8, 1926, 44 STAT. 417. PROVIDED:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE 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.

IN DECISION 6 COMP. GEN. 281, IT WAS DETERMINED THAT OFFICERS OF SERVICES OTHER THAN THE ARMY WERE NOT ENTITLED TO COUNT ACTIVE SERVICE AFTER RETIREMENT AND PRIOR TO JUNE 30, 1922, IN DETERMINING THEIR BASE PAY OR PAY PERIOD. THE DIFFERENT RULE APPLICABLE TO THE ARMY RESULTED FROM STATUTES AUTHORIZING PROMOTION OF RETIRED OFFICERS OF THE ARMY FOR ACTIVE SERVICE AFTER RETIREMENT, 39 STAT. 183, 40 STAT. 890, AND 41 STAT. 786, WHICH WERE NOT APPLICABLE TO OFFICERS OF THE OTHER SERVICES. THE REMOVAL OF THE INEQUALITY THUS PRODUCED SEEMS TO HAVE BEEN ONE OF THE PURPOSES OF THE ACT OF MAY 26, 1928. IN DECISION OF JULY 5, 1928, A-23440, 8 COMP. GEN. 5, THIS OFFICE APPROVED THE FOLLOWING PAY BILL INSTRUCTIONS:

SECTION 17 AS AMENDED BY THE ACT OF MAY 26, 1928, PROVIDES THAT THE PAY OF RETIRED OFFICERS AND WARRANT OFFICERS SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS. UNDER THIS PROVISION ALL RETIRED OFFICERS AND RETIRED WARRANT OFFICERS WHETHER RETIRED PRIOR OR SUBSEQUENT TO MAY 26, 1928, ARE ENTITLED TO COUNT ALL ACTIVE SERVICE SINCE RETIREMENT BOTH IN THE COMPUTATION OF LONGEVITY AND IN THE DETERMINATION OF PAY PERIODS FOR PURPOSES OF RETIRED PAY. HOWEVER, ANY INCREASED RETIRED PAY BY VIRTUE OF THIS PROVISION IS NOT EFFECTIVE PRIOR TO MAY 26, 1928.

THE SPECIFIC CASES YOU HAVE SUBMITTED THEREFORE REPRESENT SIMPLY A MATTER OF COMPUTATION, AS A RETIRED OFFICER IS ENTITLED IN DETERMINING HIS BASE OR PERIOD PAY AND HIS LONGEVITY PAY TO CREDIT FOR ALL SERVICES AT THE DATE OF RETIREMENT WHICH ARE AUTHORIZED TO BE COUNTED FOR PAY PURPOSES PLUS ALL PERIODS OF ACTIVE DUTY SINCE RETIREMENT.

THE REQUEST FOR RECONSIDERATION OF SO MUCH OF THE DECISION 6 COMP. GEN. 281, AS RELATES TO LIEUTENANT COLONEL HATCH, APPEARS BASED ON THE COURT OF CLAIMS HAVING SAID IN THE LEONARD CASE, AS FOLLOWS:

WE THINK THERE CAN BE NO DOUBT THAT THE OFFICER SHOULD BE CREDITED WITH ALL ACTIVE SERVICE, BEFORE AND AFTER THE DATE OF HIS RETIREMENT. SEE 5 COMP. GEN. 1038.

MAJOR LEONARD WAS BEING PAID AS A MAJOR WITH OVER 20 YEARS' SERVICE, UNDER THE ACT OF MAY 11, 1908, 35 STAT. 106, 108 (THREE-FOURTHS OF $3,000 BASE PAY, INCREASED BY $1,000 LONGEVITY, $4,000 OR $3,000 RETIRED PAY). HIS SUIT WAS FOR PAY AS A MAJOR OF OVER 27 YEARS' SERVICE BY REASON OF CREDIT FOR LONGEVITY PAY AFTER RETIREMENT BECAUSE OF HAVING BEEN RETIRED FOR WOUNDS RECEIVED IN BATTLE, OR THREE-FOURTHS OF $3,500 INCREASED BY 45 PER CENT. THE COURT DETERMINED AS A CONCLUSION OF THE LAW THAT PLAINTIFF WAS NOT ENTITLED TO RECOVER. IN THE OPINION THERE FOLLOWS SOME DISCUSSION AS TO THE PAY PERIOD IN WHICH THE OFFICER WAS ENTITLED TO BE PLACED BY REASON OF THE ACT OF MAY 8, 1926, AND THE COURT EXPRESSED THE VIEW THAT HE WAS ENTITLED TO CREDIT FOR ALL ACTIVE SERVICE AFTER RETIREMENT IN THE LANGUAGE QUOTED ABOVE AND WHICH, IF THAT WAS THE CONCLUSION OF THE COURT, WOULD HAVE ENTITLED THE PLAINTIFF TO THREE-FOURTHS OF THE BASE PAY OF THE FOURTH PERIOD, OR $3,000 INCREASED BY 45 PER CENT, WHICH WOULD TOTAL $4,350 AND RESULT IN RETIRED PAY OF $3,262.50 INSTEAD OF THREE-FOURTHS OF $4,000 AS HE HAD THERETOFORE BEEN PAID, WHICH IT WAS HELD HE WAS ENTITLED TO RECEIVE IN 6 COMP. GEN. 281, AND WHICH THE JUDGMENT OF THE COURT HELD WAS CORRECT. THE DECISION OF THIS OFFICE, 5 COMP. GEN. 1038, CITED BY THE COURT WAS THAT OF AN ARMY OFFICER RETIRED PRIOR TO JUNE 30, 1922, WHO THIS OFFICE HELD WAS ENTITLED TO COUNT ACTIVE SERVICE AFTER RETIREMENT AND PRIOR TO JUNE 30, 1922, AND THERE WAS SPECIFIC REFERENCE TO THE LAWS PROVIDING FOR PROMOTION OF OFFICERS OF THE ARMY FOR ACTIVE DUTY AFTER RETIREMENT WHICH WERE REPEALED BY SECTION 17 OF THE ACT OF JUNE 10, 1922. THE EXPRESSION OF THE COURT IN THIS RESPECT BEING IN A MATTER NOT BEFORE IT AND SPECIFICALLY NEGATIVED IN ITS JUDGMENT, IS NOT TO BE UNDERSTOOD AS INTENDED AS MORE THAN DICTUM AND NOT AS A DECISIVE AUTHORITY OR A PRECEDENT. THE MATTER IS NOW SET AT REST BY THE ACT OF MAY 26, 1928, AND THAT ACT IS NOT RETROACTIVE BUT INCREASED RETIRED PAY THEREUNDER IS NOT EFFECTIVE PRIOR TO MAY 26, 1928, THE DATE OF THE ENACTMENT. DECISION OF JULY 5, 1928, TO THE SECRETARY OF THE NAVY, A-23440, 8 COMP. GEN. 5.

MAJ. HENRY LEONARD IS REPORTED TO HAVE HAD 13 YEARS, 1 MONTH, AND 26 DAYS' SERVICE AT DATE OF RETIREMENT, SEPTEMBER 30, 1911, BECAUSE OF WOUNDS RECEIVED IN BATTLE, AND TO HAVE HAD SINCE RETIREMENT 4 YEARS, 9 MONTHS, AND 29 DAYS' ACTIVE SERVICE, A TOTAL OF 17 YEARS, 11 MONTHS, AND 25 DAYS OF SERVICE FOR COMPUTING HIS BASE PAY, AND OVER 27 YEARS FOR PURPOSE OF LONGEVITY PAY. IF THE SERVICES ARE CORRECTLY REPORTED, FROM AND AFTER MAY 26, 1928, MAJOR LEONARD AS A MAJOR OF OVER 14 AND LESS THAN 23 YEARS' SERVICE IS ENTITLED TO THREE-FOURTHS OF THE BASE PAY OF THE FOURTH PERIOD, $3,000, INCREASED BY 45 PER CENT, $1,350, A TOTAL OF $4,350, OR $3,262.50 PER ANNUM RETIRED PAY UNTIL HE SHALL HAVE COMPLETED 30 YEARS' SERVICE, BOTH ACTIVE AND RETIRED. HIS PAY ACCOUNT MAY BE READJUSTED FROM AND INCLUSIVE OF MAY 26, 1928, ON THAT BASIS.

LIEUT. COL. CHARLES B. HATCH IS REPORTED TO HAVE HAD 18 YEARS, 2 MONTHS, AND 22 DAYS' ACTIVE SERVICE AT DATE OF RETIREMENT OCTOBER 17, 1916, AND 3 YEARS, 2 MONTHS, AND 2 DAYS' ACTIVE SERVICE SINCE RETIREMENT,A TOTAL OF 21 YEARS, 4 MONTHS, AND 24 DAYS. A LIEUTENANT COLONEL WITH OVER 20 YEARS OF SERVICE IS ENTITLED TO PAY OF THE FIFTH PERIOD. IF THE SERVICE IS CORRECTLY REPORTED, FROM AND AFTER MAY 26, 1928, LIEUTENANT COLONEL HATCH IS ENTITLED TO THREE-FOURTHS OF $3,500, INCREASED BY 35 PER CENT FOR OVER 21 YEARS OF SERVICE, $1,225, TOTAL, $4,725, OR $3,543.75 PER ANNUM.

THE STATEMENT OF SERVICE OF CAPT. FRED A. UDELL SHOWS THAT WHEN RETIRED JULY 31, 1906, HE HAD 7 YEARS, 3 MONTHS, AND 5 DAYS OF SERVICE, AND SINCE RETIREMENT HAS BEEN ON ACTIVE DUTY FOR A PERIOD OF 10 YEARS, 10 MONTHS, AND 4 DAYS, A TOTAL OF 18 YEARS, 1 MONTH, AND 9 DAYS OF SERVICE. IF THE STATEMENT OF SERVICE IS CORRECT, FROM AND AFTER MAY 26, 1928, HE IS ENTITLED AS A CAPTAIN WITH OVER 17 YEARS' SERVICE TO PAY COMPUTED ON THE BASE PAY OF THE FOURTH PERIOD, $3,000, INCREASED BY 30 PER CENT FOR OVER 18 YEARS OF SERVICE, $900, A TOTAL OF $3,900, OR $2,925 PER ANNUM.

IT IS STATED THAT CAPT. WYLE J. MOORE HAD 14 YEARS, 5 MONTHS, AND 10 DAYS' SERVICE WHEN RETIRED, SEPTEMBER 29, 1919, BECAUSE OF WOUNDS RECEIVED IN BATTLE. NO ACTIVE SERVICE SINCE RETIREMENT IS REPORTED. IF THE STATEMENT OF SERVICE IS CORRECT, HE IS ENTITLED TO RETIRED PAY AS A CAPTAIN UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, $2,400, INCREASED BY 40 PER CENT FOR OVER 20 YEARS OF SERVICE AUTHORIZED TO BE COUNTED FOR LONGEVITY INCREASE AS AN OFFICER RETIRED FOR WOUNDS RECEIVED IN BATTLE, $960, A TOTAL OF $3,360, OR $2,520 PER ANNUM. PAY AS A CAPTAIN OF OVER 7 AND LESS THAN 17 YEARS OF SERVICE INCREASED BY 35 PER CENT FOR OVER 21 YEARS' SERVICE FOR LONGEVITY UNDER THE PRESENT PAY ACT IS LESS THAN THE FOREGOING PAY.