A-23435, JULY 2, 1928, 8 COMP. GEN. 1

A-23435: Jul 2, 1928

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PAY - PERIODS - LONGEVITY - ARMY OFFICERS OFFICERS OF THE REGULAR ARMY ARE ENTITLED UNDER THE ACT OF MAY 23. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE PAYMENT OF THIS VOUCHER IS AUTHORIZED UNDER THE LAW AND YOUR DECISION IS REQUESTED. FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS OF THE REGULAR ARMY * * * BELOW THE GRADE OF BRIGADIER GENERAL * * * PAY PERIODS ARE PRESCRIBED. THE BASE PAY FOR EACH IS FIXED AS FOLLOWS: * * * THE SECOND PERIOD. * * * WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE. EXCEPT THOSE WHOSE PROMOTION IS LIMITED BY LAW TO THIS GRADE AND WHO ARE NOT ENTITLED UNDER EXISTING LAW TO THE PAY AND ALLOWANCES OF A HIGHER GRADE. * * * WHO HAVE COMPLETED SEVEN YEARS' SERVICE.

A-23435, JULY 2, 1928, 8 COMP. GEN. 1

PAY - PERIODS - LONGEVITY - ARMY OFFICERS OFFICERS OF THE REGULAR ARMY ARE ENTITLED UNDER THE ACT OF MAY 23, 1928, 45 STAT. 720, TO BE CREDITED PRIOR SERVICE AS OFFICERS OF THE PHILIPPINE CONSTABULARY IN COMPUTING THEIR PAY, INCLUDING BOTH BASE OR PERIOD PAY AND LONGEVITY PAY.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, JULY 2, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 18, 1928, AS FOLLOWS:

THE ATTACHED PAY AND ALLOWANCE ACCOUNT IN FAVOR OF CAPTAIN EDWARD O. SCHAIRER, QUARTERMASTER CORPS, COVERS DIFFERENCE IN LONGEVITY AND PAY PERIODS ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER OF THE PHILIPPINE CONSTABULARY UNDER THE PROVISIONS OF THE ACT OF MAY 23, 1928, FOR THE PERIOD MAY 23RD TO 31ST, 1928.

IN VIEW OF THE FACT THE ABOVE-MENTIONED ACT DOES NOT SPECIFICALLY STATE THAT SERVICE IN THE PHILIPPINE CONSTABULARY MAY BE COUNTED FOR LONGEVITY, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THE PAYMENT OF THIS VOUCHER IS AUTHORIZED UNDER THE LAW AND YOUR DECISION IS REQUESTED.

THE ACT REFERRED TO, PUBLIC NO. 490, 45 STAT. 720, ENTITLED "AN ACT TO RECOGNIZE COMMISSIONED SERVICE IN THE PHILIPPINE CONSTABULARY IN DETERMINING RIGHTS OF OFFICERS OF THE REGULAR ARMY," PROVIDES:

THAT IN DETERMINING THE PAY PERIOD AND RIGHTS TO RETIREMENT IN THE CASE OF OFFICERS OF THE REGULAR ARMY ACTIVE DUTY PERFORMED AS AN OFFICER OF THE PHILIPPINE CONSTABULARY SHALL BE CREDITED TO THE SAME EXTENT AS SERVICE UNDER A REGULAR ARMY COMMISSION OR OTHER ACTIVE DUTY RECOGNIZED UNDER THE PROVISIONS OF SECTION 127A OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920.

THE ACT OF JUNE 10, 1922, 42 STAT. 625, IN SO FAR AS HERE MATERIAL, PROVIDES:

THAT, BEGINNING JULY 1, 1922, FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS OF THE REGULAR ARMY * * * BELOW THE GRADE OF BRIGADIER GENERAL * * * PAY PERIODS ARE PRESCRIBED, AND THE BASE PAY FOR EACH IS FIXED AS FOLLOWS:

* * * THE SECOND PERIOD, $2,000; THE THIRD PERIOD, $2,400; THE FOURTH PERIOD, $3,000; * * *

THE PAY OF THE FOURTH PERIOD SHALL BE PAID * * * TO CAPTAINS OF THE ARMY, * * * WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE, EXCEPT THOSE WHOSE PROMOTION IS LIMITED BY LAW TO THIS GRADE AND WHO ARE NOT ENTITLED UNDER EXISTING LAW TO THE PAY AND ALLOWANCES OF A HIGHER GRADE; * * *

THE PAY OF THE THIRD PERIOD SHALL BE PAID * * * TO CAPTAINS OF THE ARMY, * * * WHO HAVE COMPLETED SEVEN YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY, OR WHOSE PRESENT RANK DATES FROM JULY 1, 1920, OR EARLIER; * * *

THE PAY OF THE SECOND PERIOD SHALL BE PAID TO CAPTAINS OF THE ARMY, * * * WHO ARE NOT ENTITLED TO THE PAY OF THE THIRD OR FOURTH PERIOD; * * *

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH

FOR OFFICERS APPOINTED ON OR AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY, * * *

IT THUS APPEARS THAT THE ACT OF JUNE 10, 1922, PROVIDED THREE RATES OF BASE PAY FOR CAPTAINS OF THE ARMY, THE RATE APPLICABLE TO ANY PARTICULAR CAPTAIN IN MOST CASES BEING DEPENDENT UPON HIS LENGTH OF SERVICE. IT ALSO PROVIDED FOR A PERCENTAGE INCREASE OF BASE PAY FOR EACH PERIOD OF THREE YEARS OF SERVICE IDENTICAL IN CHARACTER AND PURPOSE WITH THE "LONGEVITY PAY" PROVIDED BY SECTION 1262, REVISED STATUTES. THE SERVICE THAT COULD BE COUNTED FOR PAY PURPOSES, THAT IS IN DETERMINING BASE PAY AND THE PERCENTAGE INCREASE THEREON, WAS ALSO DEFINED THEREIN. THE TOTAL PAY OF A CAPTAIN OF THE ARMY MAY, THEREFORE, AND USUALLY DOES CONSIST OF TWO ITEMS, BASE PAY AND THE PERCENTAGE INCREASED THEREON, EACH DEPENDENT UPON HIS LENGTH OF SERVICE AUTHORIZED BY LAW TO BE COUNTED FOR EACH OF THE RESPECTIVE PURPOSES. THE BASE PAY FIXED FOR EACH PAY PERIOD HAS BEEN DENOMINATED "BASE OR PERIOD PAY" AND THE PERCENTAGE INCREASE THEREON "LONGEVITY PAY;, 3 COMP. GEN. 212.

THE ACT OF MAY 23, 1928, PROVIDES THAT PRIOR SERVICE AS AN OFFICER OF THE PHILIPPINE CONSTABULARY SHALL BE CREDITED AN OFFICER OF THE REGULAR ARMY IN DETERMINING HIS "PAY PERIOD.' THE ACT OF JUNE 10, 1922, PRESCRIBES "PAY PERIODS" AND FIXES THE BASE PAY OF EACH. THE DETERMINATION OF AN OFFICER'S PAY PERIOD DETERMINES HIS BASE OR PERIOD PAY, BUT IT DOES NOT NECESSARILY DETERMINE THE PERCENTAGE INCREASE THEREON UNLESS THE SERVICE COUNTED IN DETERMINING THE BASE PAY MAY ALSO BE COUNTED IN COMPUTING THE PERCENTAGE INCREASE THEREON.

BY THE ACT OF JUNE 10, 1922, SERVICE RENDERED AS A COMMISSIONED OFFICER OF THE ARMY IS AUTHORIZED TO BE COUNTED FOR "PURPOSES OF PAY," WHICH TERM COVERS THE PAY OF AN OFFICER, INCLUDING BOTH BASE OR PERIOD PAY AND LONGEVITY PAY. IT IS NOT CLEAR, HOWEVER, WHETHER THE TERM "PAY PERIOD" AS USED IN THE ACT OF MAY 23, 1928, WAS USED IN THE SENSE OF PAY WHICH WOULD INCLUDE BOTH PERIOD PAY AND LONGEVITY PAY OR IN THE LIMITED SENSE OF PERIOD PAY WHICH WOULD EXCLUDE LONGEVITY PAY. THE AMBIGUITY THUS APPARENT JUSTIFIES REFERENCE TO THE HISTORY OF THE LEGISLATION AND TO THE REPORTS OF THE LEGISLATIVE COMMITTEES THEREON.

THE REPORT OF THE SENATE COMMITTEE ON MILITARY AFFAIRS ON S. 3463, WHICH BECAME THE ACT OF MAY 23, 1928, WAS MADE A PART OF THE REPORT OF THE HOUSE COMMITTEE (H. REPT. NO. 1425, 70TH CONG., 1ST SESS.) , AND IN WHICH IT WAS STATED:

THE PURPOSE OF THIS BILL IS TO ALLOW CREDIT TO THOSE OFFICERS OF THE REGULAR ARMY WHO HAD COMMISSIONED SERVICE IN THE PHILIPPINE CONSTABULARY PRIOR TO RECEIVING THEIR COMMISSIONS IN THE REGULAR ARMY, IN THE MATTER OF DETERMINING THE PAY AND OF FIXING THEIR RIGHTS OF RETIREMENT. * * *

THE LETTER OF THE SECRETARY OF WAR, DATED MARCH 23, 1928, IN REGARD TO THE BILL WAS ALSO MADE A PART OF THE REPORT, AND IN WHICH IT WAS STATED:

THE CHANGES THAT WILL BE BROUGHT ABOUT IN EXISTING LAW BY THE PROPOSED LEGISLATION AND THE EFFECTS OF SUCH CHANGES, STATED BRIEFLY, ARE AS FOLLOWS:

IT WILL EXTEND THE PROVISIONS OF THE NATIONAL DEFENSE ACT SO AS TO AUTHORIZE THE CREDITING OF OFFICERS FOR PAY AND RETIREMENT PURPOSES OF COMMISSIONED SERVICE WHICH WAS NOT PERFORMED UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT, AND THUS ESTABLISH A PRECEDENT WHICH MIGHT LEAD TO DEMANDS FOR LEGISLATION TO ALLOW SIMILAR CREDITS FOR SERVICE IN OTHER FEDERAL, STATE, AND TERRITORIAL ORGANIZATIONS.

WHILE THE WAR DEPARTMENT IS WELL AWARE OF THE VALUABLE SERVICE RENDERED BY THESE FORMER PHILIPPINE CONSTABULARY OFFICERS AND THAT SUCH SERVICE WAS ARDUOUS AND WAS PERFORMED UNDER DIFFICULT AND ADVERSE CONDITIONS, IT IS NOT BELIEVED THAT IT SHOULD BE CREDITED FOR

LONGEVITY PAY PURPOSES AND RETIREMENT: * *

IN THE REPORT IT WAS FURTHER STATED:

WE RESPECTFULLY DIFFER FROM THE VIEWS OF THE WAR DEPARTMENT. HAVING CAREFULLY CONSIDERED THE MATTER, YOUR COMMITTEE IS OF THE OPINION THAT THE DIFFICULT AND LABORIOUS SERVICE RENDERED BY THE COMMISSIONED OFFICERS OF THE PHILIPPINE CONSTABULARY ENTITLES THEM TO THE BENEFITS PROPOSED BY THIS BILL: * *

IT IS BUT FAIR AND JUST THAT THESE OFFICERS SHOULD NOW RECEIVE AT LEAST FINANCIAL RECOGNITION FOR THEIR ARDUOUS AND DANGEROUS SERVICE AND FOR THAT VALUABLE EXPERIENCE AND TRAINING. * * *

SEE ALSO, H. R. 9496, 70TH CONG., 1ST SESS., AND H. REPT. NO. 861, ID., AND H. R. 5710, 70TH CONG., 1ST SESS. SECTION 2 OF THE LATTER BILL PROPOSED TO AUTHORIZE, AMONG OTHER MATTERS, THE COUNTING OF PHILIPPINE CONSTABULARY SERVICE BY OFFICERS OF THE REGULAR ARMY FOR "INCREASE OF PAY FOR LENGTH OF SERVICE.' THE WAR DEPARTMENT'S OBJECTION TO OTHER FEATURES OF THIS BILL, SEE HOUSE REPORT 861, SEEMS TO HAVE CAUSED THE INTRODUCTION OF H. R. 9496 AND S. 3463, IDENTICAL IN LANGUAGE WHICH ELIMINATES MATTERS IN H. R. 5710 RELATING TO RELATIVE RANK AND PROMOTION.

IT THUS APPEARS THAT THE TERM "PAY PERIOD" WAS USED IN THE ACT OF MAY 23, 1928, IN THE SENSE OF "PAY," INCLUDING BOTH PERIOD AND LONGEVITY PAY.

CAPTAIN SCHAIRER IS THEREFORE ENTITLED UNDER THAT ACT TO BE CREDITED HIS PRIOR SERVICE AS AN OFFICER OF THE PHILIPPINE CONSTABULARY IN DETERMINING HIS PAY, INCLUDING BOTH BASE OR PERIOD PAY AND LONGEVITY PAY.