A-15747, OCTOBER 1, 1926, 6 COMP. GEN. 226

A-15747: Oct 1, 1926

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ARE ENTITLED UNDER SECTION 8 OF THE ACT OF JUNE 6. 1926: I HAVE YOUR LETTER OF SEPTEMBER 18. IS ENTITLED TO RECEIVE THE PAY OF A RETIRED WARRANT OFFICER OF THE ARMY OF EQUAL LENGTH OF SERVICE. WITHOUT REGARD TO WHETHER THE COMMISSIONED SERVICE OF SUCH RETIRED ENLISTED MAN WAS TERMINATED BY HONORABLE DISCHARGE OR BY RESIGNATION. PROVIDED AS FOLLOWS: RETIRED ENLISTED MEN WHO HAVE SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE UNITED STATES ARMY AT SOME TIME BETWEEN APRIL 6. INCLUDING THOSE WHO HAVE BEEN PLACED ON THE RETIRED LISTS DURING THE WORLD WAR. WHO HAVE BEEN OR MAY HEREAFTER BE DISCHARGED FROM THEIR TEMPORARY COMMISSIONS. THERE WAS JUSTIFICATION FOR CONCLUDING THAT COMMISSIONED SERVICE DURING THE WORLD WAR WHICH TERMINATED BY A RESIGNATION RATHER THAN BY A DISCHARGE WOULD NOT ENTITLE AN ENLISTED MAN TO THE BENEFITS OF THAT STATUTE.

A-15747, OCTOBER 1, 1926, 6 COMP. GEN. 226

PAY - RETIRED ENLISTED MEN - ARMY RETIRED ENLISTED MEN OF THE ARMY WHO SERVED HONORABLY AS COMMISSIONED OFFICERS BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, ARE ENTITLED UNDER SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE, AND TO THAT END MAY COUNT THE TIME SO HONORABLY SERVED AS COMMISSIONED OFFICERS IRRESPECTIVE OF WHETHER SUCH SERVICE TERMINATED BY HONORABLE DISCHARGE OR BY RESIGNATION FROM HONORABLE SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, OCTOBER 1, 1926:

I HAVE YOUR LETTER OF SEPTEMBER 18, 1926, REQUESTING DECISION WHETHER, UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, A RETIRED ENLISTED MAN OF THE ARMY WHO SERVED HONORABLY AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES AT ANY TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, IS ENTITLED TO RECEIVE THE PAY OF A RETIRED WARRANT OFFICER OF THE ARMY OF EQUAL LENGTH OF SERVICE, WITHOUT REGARD TO WHETHER THE COMMISSIONED SERVICE OF SUCH RETIRED ENLISTED MAN WAS TERMINATED BY HONORABLE DISCHARGE OR BY RESIGNATION.

THE ACT OF JUNE 4, 1920, 41 STAT. 786, PROVIDED AS FOLLOWS:

RETIRED ENLISTED MEN WHO HAVE SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE UNITED STATES ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, INCLUDING THOSE WHO HAVE BEEN PLACED ON THE RETIRED LISTS DURING THE WORLD WAR, AND WHO HAVE BEEN OR MAY HEREAFTER BE DISCHARGED FROM THEIR TEMPORARY COMMISSIONS, SHALL RECEIVE THE RETIRED PAY AND ALLOWANCE OF WARRANT OFFICERS ON THE RETIRED LIST, AS PROVIDED IN THIS ACT.

SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472 PROVIDED IN PART AS FOLLOWS:

THAT RETIRED ENLISTED MEN OF THE ARMY HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY; * * * PROVIDED, THAT SUCH ENLISTED MEN RETIRED PRIOR TO JULY 1, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED PRIOR TO THAT DATE, AND THAT ANY SUCH ENLISTED MAN RETIRED SUBSEQUENT TO JUNE 30, 1922, SHALL BE ENTITLED TO RECEIVE THE PAY PROVIDED BY LAW FOR RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THIS PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.

THE 1920 STATUTE EXPRESSLY STIPULATED THAT THERE BE A "DISCHARGE" FROM THE TEMPORARY COMMISSIONS TO ENTITLE THE ENLISTED MEN TO RETIRED PAY AND ALLOWANCES OF OFFICERS ON THE RETIRED LIST. THERE WAS JUSTIFICATION FOR CONCLUDING THAT COMMISSIONED SERVICE DURING THE WORLD WAR WHICH TERMINATED BY A RESIGNATION RATHER THAN BY A DISCHARGE WOULD NOT ENTITLE AN ENLISTED MAN TO THE BENEFITS OF THAT STATUTE.

THE 1924 STATUTE CONTAINS NO STIPULATION OR CONDITION THAT THE COMMISSIONED SERVICE DURING THE WORLD WAR MUST HAVE TERMINATED BY "DISCHARGE.' HONORABLE SERVICE AS A COMMISSIONED OFFICER IS THE CONDITION FIXED BY THIS LATER STATUTE. DECISION OF MAY 22, 1926, A 13439, 55 MS. COMP. GEN. 927, WHEREIN THE BENEFIT OF THE STATUTE WAS DENIED AN ENLISTED MAN WHOSE COMMISSIONED SERVICE DURING THE WORLD WAR WAS TERMINATED BY DISMISSAL. THE STATUTE, OF COURSE, CONTEMPLATES THE ENTIRE SERVICE AS A COMMISSIONED OFFICER, AND ONE SEPARATED NOT UNDER HONORABLE CONDITIONS IS NOT WITHIN THE STATUTE, ALTHOUGH A PART OF HIS COMMISSIONED SERVICE MIGHT HAVE BEEN CLASSED AS HONORABLE.

YOU ARE ADVISED, THEREFORE, THAT THE ACT OF JUNE 6, 1924, IS APPLICABLE WITHOUT REGARD TO WHETHER THE COMMISSIONED SERVICE OF AN ENLISTED MAN DURING THE WORLD WAR WAS TERMINATED BY HONORABLE DISCHARGE OR BY RESIGNATION FROM HONORABLE SERVICE. THE QUESTION SUBMITTED IS ANSWERED IN THE AFFIRMATIVE.