A-23440, JULY 5, 1928, 8 COMP. GEN. 5

A-23440: Jul 5, 1928

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A RETIRED OFFICER OF THE NAVY IN AN ACTIVE DUTY STATUS IS ENTITLED TO ACTIVE DUTY PAY WHILE ON AUTHORIZED LEAVE. ARE IN CONFORMITY WITH THE LAW. THE PROPOSED CHANGES IN THE PAY BILL INSTRUCTIONS ARE AS FOLLOWS: PAGE H1 PARAGRAPH 1/G). A RETIRED OFFICER ON ACTIVE DUTY IS ENTITLED TO ACTIVE-DUTY PAY WHILE ON AUTHORIZED LEAVE. 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. ANY INCREASED RETIRED PAY BY VIRTUE OF THIS PROVISION IS NOT EFFECTIVE PRIOR TO MAY 26. THESE CHANGES ARE BASED ON THE ACT OF MAY 26. IS HEREBY FURTHER AMENDED BY INSERTING AFTER THE WORDS "PROVIDED IN THIS ACT.

A-23440, JULY 5, 1928, 8 COMP. GEN. 5

PAY - PERIODS - LONGEVITY - LEAVES OF ABSENCE - RETIRED NAVY OFFICERS UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, AMENDING SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, RETIRED OFFICERS OF THE NAVY MAY COUNT ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS, EFFECTIVE FROM DATE OF THE AMENDATORY ACT. A RETIRED OFFICER OF THE NAVY IN AN ACTIVE DUTY STATUS IS ENTITLED TO ACTIVE DUTY PAY WHILE ON AUTHORIZED LEAVE, NOT IN EXCESS OF THE STATUTORY LEAVE LIMITS, AND WHILE ON SICK LEAVE; AND TO ONE-HALF ACTIVE DUTY PAY FOR LEAVE IN EXCESS OF THE STATUTORY LIMIT, UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, AMENDING SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 5, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 22, 1928, REQUESTING DECISION WHETHER PROPOSED CHANGES IN SECTION H OF THE "PAY BILL INSTRUCTIONS" INSOFAR AS THEY INVOLVE DISBURSEMENTS, ARE IN CONFORMITY WITH THE LAW.

THE PROPOSED CHANGES IN THE PAY BILL INSTRUCTIONS ARE AS FOLLOWS:

PAGE H1 PARAGRAPH 1/G), STRIKE OUT LAST LINE AND SUBSTITUTE THE FOLLOWING:

"ON AND AFTER MAY 26, 1928, A RETIRED OFFICER ON ACTIVE DUTY IS ENTITLED TO ACTIVE-DUTY PAY WHILE ON AUTHORIZED LEAVE, NOT IN EXCESS OF STATUTORY LEAVE LIMIT AND WHILE ON SICK LEAVE; AND TO ONE-HALF ACTIVE DUTY PAY WHILE ON ACTIVE DUTY AND GRANTED LEAVE IN EXCESS OF STATUTORY LEAVE LIMIT.'

PAGE H2 PARAGRAPH 1/M), STRIKE OUT THE ENTIRE SUBPARAGRAPH (M) AND SUBSTITUTE THE FOLLOWING:

"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 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.'

PAGE H2 PARAGRAPH 1/N), STRIKE OUT THE ENTIRE SUBPARAGRAPH (N) AND SUBSTITUTE THE FOLLOWING:

"SECTION 17 PROVIDES THAT ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST * * * SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION.' NO RETIRED OFFICER MAY BE ADVANCED PERMANENTLY TO ANY HIGHER RANK ON ACCOUNT OF ACTIVE DUTY PERFORMED SUBSEQUENT TO JUNE 30, 1922.'

THESE CHANGES ARE BASED ON THE ACT OF MAY 26, 1928, 45 STAT. 774, AMENDING SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS FOLLOWS:

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.'

SECTION 17 OF THE ACT OF JUNE 10, 1922, PROVIDES THAT:

* * * ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION

THE LAST SENTENCE IN THE PROPOSED INSTRUCTIONS STATES THAT "NO RETIRED OFFICER MAY BE ADVANCED PERMANENTLY TO ANY HIGHER RANK ON ACCOUNT OF ACTIVE DUTY PERFORMED SUBSEQUENT TO JUNE 30, 1922.' THE PROHIBITION IN THE LAW APPLIES BROADLY TO ANY PROMOTION. ANY ADVANCEMENT IN RANK, WHETHER TEMPORARY OR PERMANENT, IS A PROMOTION. THE WORK "PERMANENTLY" AS USED THEREIN MIGHT BE CONSTRUED TO IMPLY AUTHORITY FOR A TEMPORARY ADVANCE IN RANK OF A RETIRED OFFICER BY REASON OF ACTIVE DUTY. FOR THIS REASON THE WORD "PERMANENTLY" SHOULD BE OMITTED FROM THE LAST SENTENCE OF THE PROPOSED INSTRUCTIONS.

IF SO MODIFIED, THE PROPOSED INSTRUCTIONS, SO FAR AS THEY AFFECT DISBURSEMENTS, SEEM TO BE IN ACCORD WITH THE LAW.