A-23910, AUGUST 15, 1928, 8 COMP. GEN. 75

A-23910: Aug 15, 1928

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IS ENTITLED TO THREE-FOURTHS OF THE PAY OF HIS GRADE AS FIXED BY SECTION 1 OF THE ACT OF JUNE 10. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPT. THE OFFICER'S CLAIM FOR DIFFERENCE IN PERIOD PAY IS UNDER THE ACT OF MAY 28. IS HEREBY FURTHER AMENDED BY STRIKING OUT IN PARAGRAPH 5 OF SECTION 1 OF SAID ACT. PAGE 626): "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.'. AT THE TIME THE OFFICER WAS RETIRED THE DELETED PORTION OF THE STATUTE AMENDED BY THIS ACT LIMITED CAPTAINS OF THE MEDICAL ADMINISTRATIVE CORPS TO THE PAY AND ALLOWANCES OF THE THIRD PERIOD.

A-23910, AUGUST 15, 1928, 8 COMP. GEN. 75

PAY - RETIRED - ARMY OFFICER AN OFFICER RETIRED SEPTEMBER 10, 1927, AS A CAPTAIN IN THE MEDICAL ADMINISTRATIVE CORPS OF THE ARMY, IS ENTITLED TO THREE-FOURTHS OF THE PAY OF HIS GRADE AS FIXED BY SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED BY THE ACT OF MAY 28, 1928, 45 STAT. 788, FROM THE DATE OF THE LATTER ACT.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, AUGUST 15, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 24, 1928, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPT. JOHN C. SCHWIEGER, UNITED STATES ARMY, RETIRED, FOR THE DIFFERENCE BETWEEN RETIRED PAY AS CAPTAIN WITH OVER 21 YEARS' SERVICE, COMPUTED ON THE BASIS OF PAY PROVIDED IN THE THIRD PAY PERIOD, AND RETIRED PAY AS AN OFFICER OF THE SAME GRADE AND LENGTH OF SERVICE, COMPUTED ON THE BASIS OF PAY PROVIDED IN THE FOURTH PAY PERIOD, FROM MAY 28, TO JUNE 30, 1928.

THE ARMY REGISTER FOR 1928 SHOWS THE OFFICER'S SERVICE RECORD AS FOLLOWS:

1 LT.SN.C.N.A. 4 SEPT. 17; ACCEPTED 10 SEPT. 17; CAPT.SN.C.N.A., 28 JAN. 18; ACCEPTED 5 FEB. 8; VACATED 2 OCT. 20.--- PVT.CORP. AND SGT.TR. I. 4 CAV. 26 DEC. 03 TO 31 JULY 08; PVT. AND CORP. TR. C 14 CAV. PVT. PVT.1CL. SGT. AND SGT.1CL. HOSP. C AND M.D., 27 JULY 09 TO 9 SEPT. 17; 2 LT.MED.ADM. C. 1 JULY 20; ACCEPTED 2 OCT. 20; 1 LT. 10 SEPT. 22; RETIRED WITH RANK OF CAPT. 10 SEPT., 27.

ON RETIREMENT HE HAD 22 YEARS' 9 MONTHS' AND 6 DAYS' SERVICE FOR LONGEVITY AND PERIOD PAY PURPOSES.

THE OFFICER'S CLAIM FOR DIFFERENCE IN PERIOD PAY IS UNDER THE ACT OF MAY 28, 1928, 45 STAT. 788, AS FOLLOWS:

THAT THE ACT 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," APPROVED JUNE 10, 1922, AS AMENDED, IS HEREBY FURTHER AMENDED BY STRIKING OUT IN PARAGRAPH 5 OF SECTION 1 OF SAID ACT, RELATING TO THE PAY OF THE FOURTH PERIOD, THE FOLLOWING WORDS APPEARING IN LINES 11, 12, AND 13 OF SAID PARAGRAPH (VOLUME 42, STATUTES AT LARGE, PAGE 626): "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.'

AT THE TIME THE OFFICER WAS RETIRED THE DELETED PORTION OF THE STATUTE AMENDED BY THIS ACT LIMITED CAPTAINS OF THE MEDICAL ADMINISTRATIVE CORPS TO THE PAY AND ALLOWANCES OF THE THIRD PERIOD, AND THE PURPOSE OF THIS ACT WAS TO PLACE CAPTAINS OF SUCH MEDICAL ADMINISTRATIVE CORPS ON PARITY WITH CAPTAINS OF THE OTHER BRANCHES OF THE ARMY, ENTITLING THEM TO THE PAY AND ALLOWANCES OF THE FOURTH PAY PERIOD AFTER 17 YEARS' SERVICE.

SECTION 17 OF THE ACT OF JUNE 10, 1922, PROVIDES, IN PART, 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 CT: * * *

THE PAY "PROVIDED" IN THE ACT OF JUNE 10, 1922, IS THE PAY EXPRESSLY SET FORTH IN SECTION 1 THEREOF, AND THE ACT OF MAY 28, 1928, INCREASED THE PAY OF ALL WITHIN ITS SCOPE, INCLUDING THOSE THERETOFORE RETIRED, FROM THE DATE OF THE ACT, WHEN THE LAW BECAME EFFECTIVE.

YOU ARE ADVISED THAT PAYMENT OF THE VOUCHER IS AUTHORIZED IF OTHERWISE CORRECT.