A-23899, OCTOBER 17, 1928, 8 COMP. GEN. 191

A-23899: Oct 17, 1928

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IS AUTHORIZED BY THE ACT OF MAY 23. TO INCLUDE ON AND AFTER THAT DATE 2 YEARS 10 MONTHS AND 27 DAYS' ACTIVE DUTY PERFORMED AS AN OFFICER OF THE PHILIPPINE CONSTABULARY IN DETERMINING THE ACTIVE PAY ON WHICH HIS RETIRED PAY IS COMPUTED. HE IS NOT AUTHORIZED TO CREDIT SUCH SERVICE TO CHANGE THE 35 PERCENT OF ACTIVE PAY FIXED AS HIS RETIRED PAY AT THE TIME OF HIS RETIREMENT UNDER THE ACT OF JUNE 30. WHICH PERCENTUM RATE IS PERMANENT. AS FOLLOWS: FORWARDED HEREWITH FOR ADVANCED DECISION IS PAY VOUCHER IN FAVOR OF MAJOR CHARLES P. PHILIPPINE CONSTABULARY SERVICE IS CREDITED TO THE SAME EXTENT AS SERVICE UNDER A REGULAR ARMY COMMISSION. THE UNDERSIGNED IS. YOUR DECISION IS REQUESTED. RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY.

A-23899, OCTOBER 17, 1928, 8 COMP. GEN. 191

PAY - RETIRED - ARMY OFFICER WITH PHILIPPINE CONSTABULARY SERVICE AN OFFICER OF THE ARMY ELIMINATED FROM THE ACTIVE LIST DECEMBER 15, 1922, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1922, 42 STAT. 716, 722, AS AMENDED, WITH RETIRED PAY AT 2 1/2 PERCENT MULTIPLIED BY 14, THE NUMBER OF HIS COMPLETE YEARS OF COMMISSIONED SERVICE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT, OR 35 PERCENT OF ACTIVE PAY, IS AUTHORIZED BY THE ACT OF MAY 23, 1928, 45 STAT. 720, TO INCLUDE ON AND AFTER THAT DATE 2 YEARS 10 MONTHS AND 27 DAYS' ACTIVE DUTY PERFORMED AS AN OFFICER OF THE PHILIPPINE CONSTABULARY IN DETERMINING THE ACTIVE PAY ON WHICH HIS RETIRED PAY IS COMPUTED, BUT HE IS NOT AUTHORIZED TO CREDIT SUCH SERVICE TO CHANGE THE 35 PERCENT OF ACTIVE PAY FIXED AS HIS RETIRED PAY AT THE TIME OF HIS RETIREMENT UNDER THE ACT OF JUNE 30, 1922, WHICH PERCENTUM RATE IS PERMANENT.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 17, 1928:

MAJ. E. T. COMEGYS, FINANCE OFFICER, UNITED STATES ARMY, HAS PRESENTED FOR DECISION THE QUESTION, AS FOLLOWS:

FORWARDED HEREWITH FOR ADVANCED DECISION IS PAY VOUCHER IN FAVOR OF MAJOR CHARLES P. HOLLINGSWORTH, U.S.A., RETIRED, FOR DIFFERENCE IN RETIRED PAY FOR OVER 14 YEARS' SERVICE AT 2 1/2 PERCENT FOR EACH COMPLETE YEAR OF COMMISSIONED SERVICE AND OVER 17 YEARS' SERVICE AT 2 1/2 PERCENT FOR EACH COMPLETE YEAR OF COMMISSIONED SERVICE.

THE OFFICIAL ARMY REGISTER SHOWS THIS OFFICER AS HAVING RETIRED DECEMBER 15, 1922, AFTER 14 YEARS' SERVICE, UNDER THE ACTS OF JUNE 30, 1922, AND SEPTEMBER 14, 1922.

UNDER THE ACT OF MAY 23, 1928, PHILIPPINE CONSTABULARY SERVICE IS CREDITED TO THE SAME EXTENT AS SERVICE UNDER A REGULAR ARMY COMMISSION. THE UNDERSIGNED IS, THEREFORE, IN DOUBT AS TO WHETHER OR NOT THIS OFFICER'S RETIRED PAY MAY BE INCREASED BY 2 1/2 PERCENT FOR EACH YEAR OF SERVICE IN THE PHILIPPINE CONSTABULARY, AND YOUR DECISION IS REQUESTED.

THE CITED ACT OF MAY 23, 1928, 45 STAT. 720, PROVIDES:

THAT IN DETERMINING THE PAY PERIOD AND RIGHTS OF 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.

SECTION 51 OF THE ACT OF JUNE 4, 1920, 41 STAT. 785, WHICH AMENDED SECTION 127 OF THE NATIONAL DEFENSE ACT, JUNE 3, 1916, BY ADDING THERETO SECTION 127A, RECOGNIZED "ACTIVE DUTY PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT, WHETHER IN THE REGULAR, PROVISIONAL, OR TEMPORARY FORCES," PROVIDING THAT SUCH SERVICE SHOULD BE CREDITED TO THE SAME EXTENT AS SERVICE UNDER A REGULAR ARMY COMMISSION IN DETERMINING RELATIVE RANK, INCREASE OF PAY FOR LENGTH OF SERVICE, AND, IN THE CASE OF OFFICERS OF THE REGULAR ARMY, IN DETERMINING RIGHTS OF RETIREMENT.

PARAGRAPH 11 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROHIBITS THE COUNTING BY OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, OF ANY SERVICE 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, BUT, FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, IT PROVIDES THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH AT THE TIME OF ITS ENACTMENT MIGHT BE COUNTED IN COMPUTING LONGEVITY PAY, AND, ALSO, CERTAIN OTHER SERVICE NOT HERE MATERIAL, AND SECTION 17 OF THAT ACT PROVIDES THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY, OR EQUIVALENT PAY, COMPUTED AS THEN AUTHORIZED BY LAW, ON THE BASIS OF PAY PRESCRIBED IN THE ACT.

THE ACT OF JUNE 30, 1922, 42 STAT. 716, 722, MAKING APPROPRIATIONS FOR THE WAR DEPARTMENT FOR THE FISCAL YEAR 1923, AS AMENDED BY THE ACT OF SEPTEMBER 14, 1922, 42 STAT. 840, AFTER PRESCRIBING THE NUMBER OF OFFICERS THEREAFTER AUTHORIZED IN EACH GRADE AND RANK OF THE VARIOUS BRANCHES, MADE PROVISION FOR THE ELIMINATION OF SURPLUS OFFICERS OF WHOM CLAIMANT HOLLINGSWORTH WAS ONE, AS FOLLOWS:

* * * OFFICERS IN EXCESS OF THE NUMBERS AUTHORIZED HEREIN AND NOT REMOVED FROM THE ACTIVE LIST BY OTHER MEANS SHALL BE DISPOSED OF AS FOLLOWS: * * * OFFICERS SELECTED FOR ELIMINATION OF LESS THAN TEN YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD HEREIN PROVIDED FOR, BE DISCHARGED WITH ONE YEAR'S PAY; OR THOSE OF MORE THAN TEN YEARS' AND LESS THAN TWENTY YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD, BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SUCH COMMISSIONED SERVICE; OR THOSE OF MORE THAN TWENTY YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD, BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 3 PERCENTUM OF THEIR ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SUCH COMMISSIONED SERVICE, NOT EXCEEDING 74 PERCENTUM * * *: PROVIDED FURTHER, THAT, COMMISSIONED SERVICE FOR THE PURPOSES OF THIS ACT SHALL INCLUDE ONLY ACTIVE COMMISSIONED SERVICE IN THE ARMY PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT WHETHER IN THE REGULAR, PROVISIONAL, OR TEMPORARY FORCES: PROVIDED FURTHER, THAT ANY OFFICER OF LESS THAN TEN YEARS' COMMISSIONED SERVICE BUT OF MORE THAN TWENTY YEARS' SERVICE ACCREDITED TOWARD RETIREMENT OR FOR INCREASED PAY FOR LENGTH OF SERVICE MAY, IN LIEU OF DISCHARGE WITH ONE YEAR'S PAY AS HEREINBEFORE PROVIDED, IF HE SO ELECTS, BE APPOINTED A WARRANT OFFICER AND CARRIED AS AN ADDITIONAL NUMBER IN THAT GRADE; OR HE MAY, IF HE SO ELECTS, BE RETIRED WITH THE RANK OF WARRANT OFFICER WITH PAY AT THE RATE OF 2 PERCENTUM OF THE PAY OF A WARRANT OFFICER MULTIPLIED BY THE NUMBER OF YEARS OF SUCH ACCREDITED SERVICE. * * *

WHEN MAJOR HOLLINGSWORTH WAS RETIRED DECEMBER 15, 1922, THE OFFICIAL ARMY REGISTER SHOWS HE HAD BEEN ON CONTINUOUS ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE ARMY FROM JANUARY 23, 1908, THUS HAVING AT THE DATE OF HIS RETIREMENT MORE THAN 14 YEARS'"COMMISSIONED SERVICE" WHICH, UNDER THE CITED STATUTES, HE WAS ENTITLED TO HAVE CREDITED BOTH IN THE COMPUTATION OF HIS "ACTIVE PAY" AND IN THE COMPUTATION OF THE PERCENTUM THEREOF AUTHORIZED IN THE CITED ACT OF JUNE 30, 1922, TO BE PAID TO HIM AS RETIRED PAY. UNDER THESE STATUTES, HOWEVER, HE WAS NOT ENTITLED AT THE TIME OF HIS RETIREMENT TO HAVE HIS SERVICE AS AN OFFICER IN THE PHILIPPINE CONSTABULARY CREDITED IN THE COMPUTATION FOR EITHER PURPOSE.

THIS CONSTABULARY SERVICE, REPORTED BY THE ADJUTANT GENERAL OF THE ARMY TO HAVE BEEN RENDERED CONTINUOUSLY AS A THIRD AND SECOND LIEUTENANT FROM OCTOBER 31, 1903, UNTIL SEPTEMBER 27, 1906, 2 YEARS 10 MONTHS 27 DAYS, UNDER THE ACT OF THAT DATE CLEARLY IS AUTHORIZED ON AND AFTER MAY 23, 1928, TO BE CREDITED IN THE COMPUTATION OF THE "ACTIVE PAY" OF MAJOR HOLLINGSWORTH ON THE BASIS OF PAY PROVIDED IN THE CITED ACT OF JUNE 10, 1922, UPON WHICH HIS RETIRED PAY IS REQUIRED TO BE COMPUTED; THAT IS, THE CONSTABULARY SERVICE, COMMENCING MAY 23, 1928, MAY BE CREDITED IN THE SAME MANNER AND FOR THE SAME PURPOSES AS THE SERVICE REFERRED TO IN THE ABOVE CITED PARAGRAPH 11 OF SECTION 1 OF THAT ACT WHICH OFFICERS IN THE SERVICE ON JUNE 30, 1922, ARE AUTHORIZED TO HAVE INCLUDED IN THE COMPUTATION OF PAY. THIS, HOWEVER, IS AS FAR AS THE ACT OF MAY 23, 1928, GOES.

THE ACT DOES NOT CONSTITUTE SUCH SERVICE "ACTIVE COMMISSIONED SERVICE" IN THE ARMY PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT WHICH IS THE ONLY SERVICE AUTHORIZED BY THE CITED ACT OF JUNE 30, 1922, TO BE USED AS A BASIS FOR DETERMINING THE GROUP IN WHICH AN OFFICER THEREUNDER SELECTED FOR ELIMINATION FELL OR IN ARRIVING AT THE PERCENTUM RATE OF "ACTIVE PAY" HE SHOULD RECEIVE ON THE RETIRED LIST; THIS WOULD BE TRUE HAD THE ACT OF MAY 23, 1928, BEEN IN EFFECT WHEN THE ACT OF JUNE 30, 1922, WAS APPROVED, THE SERVICE AS AN OFFICER OF THE PHILIPPINE CONSTABULARY PALPABLY NOT BEING COMMISSIONED SERVICE "PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT," THE CONSTABULARY HAVING BEEN ORGANIZED UNDER ACT NO. 175, JULY 18, 1901, OF THE PHILIPPINE COMMISSION, CREATED BY EXECUTIVE ORDER OF JUNE 21, 1901.

IT IS CLEAR, MOREOVER, THAT IN AUTHORIZING THE INCLUSION OF PHILIPPINE CONSTABULARY SERVICE THE CONGRESS HAD NO PURPOSE TO CHANGE THE BASIS OF ELIMINATION PRESCRIBED IN THE CITED ACT OF JUNE 30, 1922, OR TO THUS REQUIRE A REGROUPING OF THOSE ELIMINATED THEREUNDER FROM THE ACTIVE LIST TO DETERMINE WHETHER ENTITLED TO ONE YEAR'S PAY OR TO ONE OF THE PERCENTUM RATES OF RETIRED PAY DIFFERENT FROM THAT FIXED AT THE DATE OF RETIREMENT, ANY MORE THAN IT HAD A PURPOSE TO CHANGE THE 75 PERCENTUM RATE OF RETIRED PAY PRESCRIBED IN SECTION 1274 OF THE REVISED STATUTES FOR ARMY OFFICERS, GENERALLY, RETIRED FROM ACTIVE SERVICE.

THE DECISION, A-24042, AUGUST 24, 1928, 8 COMP. GEN. 87, CORRECTLY ENUNCIATES THE UNAVOIDABLE CONCLUSION ON THE QUESTION PRESENTED AND THAT IS THAT THE CITED ACT OF JUNE 30, 1922,"FIXED PERMANENTLY THE PERCENTAGE OF THEIR ACTIVE PAY OFFICERS RETIRED UNDER ITS TERMS SHALL RECEIVE AS RETIRED PAY.'

MAJOR HOLLINGSWORTH'S RETIRED PAY MUST BE COMPUTED AT THE PERCENT RATE OF 2 1/2 PERCENT MULTIPLIED BY 14, THE NUMBER OF COMPLETE YEARS OF COMMISSIONED SERVICE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT HE HAD AT THE DATE OF HIS RETIREMENT, OR 35 PERCENT OF HIS ACTIVE PAY. PAYMENT OF THE VOUCHER PRESENTED AND WHICH IS RETAINED HERE, ACCORDINGLY, IS NOT AUTHORIZED.