A-23861, AUGUST 13, 1928, 8 COMP. GEN. 71

A-23861: Aug 13, 1928

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IS ENTITLED BY VIRTUE OF THE PROVISIONS OF THE ACT OF MAY 26. REQUESTING TO BE ADVISED WHETHER YOU ARE AUTHORIZED TO PAY THE VOUCHER SUBMITTED IN FAVOR OF MAJ. WHICH ARE AS FOLLOWS: THAT SECTION 17 OF THE ACT APPROVED JUNE 10. 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. THE SECRETARY OF WAR WAS ADVISED IN DECISION OF JUNE 14. PROVIDING THAT RETIRED OFFICERS OF THE ARMY SHALL BE ENTITLED TO COUNT ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN COMPUTING LONGEVITY PAY WAS REPEALED BY THE ACT OF JUNE 10. WILL NOT BE FOLLOWED IN THE AUDIT OF ACCOUNTS AFTER PAYMENTS FOR THE MONTH OF JUNE.

A-23861, AUGUST 13, 1928, 8 COMP. GEN. 71

PAY - RETIRED - ARMY OFFICER AN OFFICER OF THE ARMY RETIRED PRIOR TO JUNE 30, 1922, IS ENTITLED BY VIRTUE OF THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, TO COUNT, IN COMPUTING HIS RETIRED PAY ON AND AFTER THE DATE OF THAT ACT, ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT AND AFTER JUNE 30, 1922, AS WELL AS BEFORE THAT DATE, WHETHER PAID UNDER THE PAY SCALE OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, OR EARLIER LAWS.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, AUGUST 13, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 19, 1928 ).016 RUDD, AUGUSTIN G.), REQUESTING TO BE ADVISED WHETHER YOU ARE AUTHORIZED TO PAY THE VOUCHER SUBMITTED IN FAVOR OF MAJ. AUGUSTIN G. RUDD, UNITED STATES ARMY, RETIRED, IN THE SUM OF $21.87, FOR DIFFERENCE IN RETIRED PAY AS MAJOR BETWEEN OVER 5 AND OVER 10 YEARS' SERVICE AT RATES PROVIDED BY THE ACT OF MAY 11, 1908, 35 STAT. 108, FOR THE PERIOD MAY 26 TO JUNE 30, 1928, ON ACCOUNT OF ACTIVE SERVICE PERFORMED AFTER RETIREMENT AND SUBSEQUENT TO JUNE 30, 1922, UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, WHICH ARE 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.'

THE SECRETARY OF WAR WAS ADVISED IN DECISION OF JUNE 14, 1927, 6 COMP. GEN. 829, THAT THE ACT OF MAY 12, 1917, 40 STAT. 48, PROVIDING THAT RETIRED OFFICERS OF THE ARMY SHALL BE ENTITLED TO COUNT ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN COMPUTING LONGEVITY PAY WAS REPEALED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THAT THE FORMER DECISIONS, IN SO FAR AS THEY AUTHORIZED LONGEVITY CREDIT TO RETIRED OFFICERS FOR ACTIVE DUTY AFTER RETIREMENT AND SUBSEQUENT TO JUNE 30, 1922, WILL NOT BE FOLLOWED IN THE AUDIT OF ACCOUNTS AFTER PAYMENTS FOR THE MONTH OF JUNE, 1927.

IT IS STATED IN THE SUBMISSION THAT PRIOR TO JULY 1, 1927, MAJOR RUDD WAS PAID AT THE RATE OF $225 PER MONTH, THE RETIRED PAY OF A MAJOR WITH OVER 10 YEARS' SERVICE, ACT OF MAY 11, 1908; THAT IN VIEW OF THE DECISION IN 6 COMP. GEN. 829, THE OFFICER'S PAY WAS REDUCED TO $206.25 PER MONTH, THE RETIRED PAY OF A MAJOR WITH OVER 5 YEARS' SERVICE, ACT OF MAY 11, 1908; THAT IN VIEW OF THE FACT THAT THE ACT OF MAY 26, 1928, AMENDS SECTION 17 OF THE ACT OF JUNE 10, 1922, YOU ARE IN DOUBT AS TO WHETHER THE OFFICER'S PAY MAY BE INCREASED UNDER THE RATES PROVIDED BY THE ACT OF MAY 11, 1908.

THE ARMY REGISTER FOR 1926, PAGE 782, SHOWS MAJOR RUDD WAS APPOINTED A SECOND LIEUTENANT OF CAVALRY OCTOBER 7, 1911; WAS RETIRED AS A FIRST LIEUTENANT JULY 1, 1916, BECAUSE OF DISABILITY IN LINE OF DUTY UNDER SECTION 3 OF THE ACT OF OCTOBER 1, 1890, 26 STAT. 562; WAS PROMOTED TO THE RANK OF CAPTAIN, RETIRED, FEBRUARY 13, 1918, UNDER THE ACT OF JUNE 3, 1916 (PRESUMABLY SECTION 24, 39 STAT. 183); AND TO THE RANK OF MAJOR, RETIRED, JUNE 29, 1922, UNDER SECTION 127A OF THE ACT OF JUNE 4, 1920, 41 STAT. 786. HE WAS RETIRED AFTER 4 YEARS 8 MONTHS AND 3 DAYS' SERVICE. YOU SUBMIT SUGGESTION THAT IF PERMITTED TO COUNT ACTIVE DUTY AFTER RETIREMENT HE WILL BE ENTITLED TO CREDIT FOR OVER 10 YEARS' AND LESS THAN 15 YEARS' SERVICE. PRESUMABLY THE ACTIVE SERVICE GIVING A TOTAL OF OVER 10 YEARS' SERVICE WAS PERFORMED SUBSEQUENT TO JUNE 30, 1922; OTHERWISE THERE WOULD SEEM TO BE NO QUESTION.

THE ACT OF MAY 26, 1928, 45 STAT. 774, AND THE ACT OF MAY 31, 1924, 43 STAT. 252, HAVE AMENDED THE FIRST SENTENCE OF SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, TO READ AS FOLLOWS:

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 ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: 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: PROVIDED, THAT THE PAY SAVED TO AN OFFICER BY SECTION 16 OF THIS ACT OR BY THE ACT OF SEPTEMBER 14, 1922, SHALL BE CONSTRUED AS THE PAY PROVIDED IN THIS ACT FOR THE PURPOSE OF COMPUTING RETIRED PAY.

THE OFFICER IN THIS CASE IS WITHIN THE SAVING CLAUSE OF SECTION 17 OF THE ACT OF JUNE 10, 1922; THE SAVING CLAUSE IN SECTION 16 OF THE ACT OF THAT DATE BEING APPLICABLE TO OFFICERS ON THE ACTIVE LIST JULY 1, 1922, AND WHO ARE ENTITLED TO BE PAID RETIRED PAY ON THE BASIS OF SAVED PAY AND NOT UNDER THE PROVISIONS OF THAT ACT, BY THE AMENDMENT OF MAY 31, 1924. THE CLAUSE ADDED TO THE FIRST SENTENCE BY THE ACT OF MAY 26, 1928,"WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS" STRICTLY IS NOT APPLICABLE TO MAJOR RUDD. IT IS, HOWEVER, APPARENT THAT IT WAS NOT INTENDED TO CREATE A DISCRIMINATION AMONG OFFICERS AS TO RIGHT TO COUNT ACTIVE SERVICE AFTER RETIREMENT FOR INCREASE OF PAY. FROM JUNE 3, 1916, TO JULY 9, 1918, ALL OFFICERS OF THE ARMY BELOW THE GRADE OF LIEUTENANT COLONEL, AND BETWEEN JULY 9, 1918, AND JUNE 30, 1922, ALL OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL, WERE ENTITLED TO COUNT ACTIVE SERVICE PERFORMED AFTER RETIREMENT FOR THE PURPOSE OF PROMOTION, AND UNDER THE ACT OF MAY 12, 1917, 40 STAT. 48, SUCH OFFICERS WERE ENTITLED UNTIL JUNE 30, 1922, TO COUNT ACTIVE SERVICE AFTER RETIREMENT FOR THE PURPOSE OF INCREASE IN LONGEVITY PAY. THE PURPOSE OF THE AMENDMENT OF MAY 26, 1928, WAS TO RESTORE THEREAFTER TO ARMY OFFICERS, AND TO EXTEND TO THE OFFICERS OF ALL OF THE SERVICES COVERED BY THE ACT OF JUNE 10, 1922, THE RIGHT TO COUNT ACTIVE SERVICE AFTER RETIREMENT FOR THE PURPOSE OF INCREASING LONGEVITY PAY, AND TO GIVE A RIGHT NOT THERETOFORE ACCORDED UNDER THE ACT OF JUNE 10, 1922, OF COUNTING SUCH SERVICE FOR INCREASE IN BASE OR PERIOD PAY IF PAID UNDER THAT ACT.

ASSUMING THE STATEMENT OF SERVICE OF MAJOR RUDD TO BE CORRECT, HE WOULD BE ENTITLED ON AND AFTER MAY 26, 1928, TO THREE-FOURTHS OF THE PAY OF A MAJOR, $3,000 PLUS 20 PERCENT, FOR OVER 10 YEARS' SERVICE, $600, TOTAL $3,600, OR $2,700 PER ANNUM, ACT OF MAY 11, 1908, WHICH IS GREATER THAN THE RETIRED PAY OF MAJOR OF LESS THAN 14 YEARS' SERVICE, THIRD PAY PERIOD, PLUS 15 PERCENT FOR OVER 10 YEARS' SERVICE, ACT OF JUNE 10, 1922.