A-24042, AUGUST 24, 1928, 8 COMP. GEN. 87

A-24042: Aug 24, 1928

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IS NOT ENTITLED. HE IS ENTITLED TO CREDIT FOR ACTIVE SERVICE SINCE RETIREMENT TO DETERMINE HIS RATE OF PAY BASED ON THE PERCENTAGE FIXED WHEN RETIRED. FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON A PAY ROLL TRANSMITTED THEREWITH CONSTITUTING THE CLAIM OF MAJ. HIS CLAIM IS ASSERTED UNDER SECTION 17 OF THE PAY READJUSTMENT ACT OF JUNE 10. RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY. THE RETIRED PAY IS TO BE COMPUTED AS AUTHORIZED BY LAW ON THE BASIS OF THE PAY PRESCRIBED IN THE 1922 PAY ACT. IT APPEARS THAT MAJOR ENGEL WAS SELECTED FOR ELIMINATION FROM THE ACTIVE LIST OF THE ARMY. AT THE TIME HE WAS RETIRED HE WAS ENTITLED TO RETIRED PAY AS MAJOR. HIS ACTIVE SERVICE SINCE RETIREMENT IS INCLUDED IN THE COMPUTATION OF HIS LONGEVITY AND PERIOD PAY.

A-24042, AUGUST 24, 1928, 8 COMP. GEN. 87

PAY - RETIRED - ARMY OFFICER AN OFFICER SELECTED FOR ELIMINATION FROM THE ARMY AND PLACED ON THE RETIRED LIST, AT 2 1/2 PERCENT MULTIPLIED BY 19 FULL YEARS' COMMISSIONED SERVICE OF HIS ACTIVE-DUTY PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1922, 42 STAT. 722, IS NOT ENTITLED, UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, TO COUNT SERVICE RENDERED SINCE RETIREMENT TO INCREASE THE PERCENTAGE OF HIS ACTIVE PAY PAYABLE AS RETIRED PAY. HE IS ENTITLED TO CREDIT FOR ACTIVE SERVICE SINCE RETIREMENT TO DETERMINE HIS RATE OF PAY BASED ON THE PERCENTAGE FIXED WHEN RETIRED.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, AUGUST 24, 1928:

THERE HAS BEEN RECEIVED YOUR REQUEST OF AUGUST 1, 1928 ).016), FOR DECISION WHETHER PAYMENT IS AUTHORIZED ON A PAY ROLL TRANSMITTED THEREWITH CONSTITUTING THE CLAIM OF MAJ. EMIL ENGEL, UNITED STATES ARMY, RETIRED, FOR THE DIFFERENCE BETWEEN RETIRED PAY AS MAJOR COMPUTED AT 2 1/2 PERCENT OF HIS BASE PAY WITH 24 YEARS' LONGEVITY SERVICE, MULTIPLIED BY 19 YEARS' COMMISSIONED SERVICE, AND RETIRED PAY FOR THE SAME GRADE AND LONGEVITY SERVICE, COMPUTED AT 3 PERCENT OF HIS BASE PAY, MULTIPLIED BY 22 YEARS' COMMISSIONED SERVICE, FROM MAY 26, TO JULY 31, 1928.

THE OFFICIAL ARMY REGISTER FOR 1928 SHOWS THIS OFFICER AS HAVING RETIRED DECEMBER 10, 1922, UNDER THE ACTS OF JUNE 30, 1922, 42 STAT. 722, AND SEPTEMBER 14, 1922, 42 STAT. 840, AT WHICH TIME HE HAD COMPLETED 19 YEARS 2 MONTHS AND 1 DAY'S COMMISSIONED SERVICE AND 2 YEARS 6 MONTHS AND 10 DAYS' ENLISTED SERVICE. HIS CLAIM IS ASSERTED UNDER SECTION 17 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF MAY 31, 1924, AND THE ACT OF MAY 26, 1928, 45 STAT. 774, BY REASON OF ACTIVE SERVICE SINCE RETIREMENT, REPORTED BY THE ADJUTANT GENERAL AS FROM SEPTEMBER 6, 1924, TO JULY 20, 1926, AND FROM SEPTEMBER 7, 1926, TO DECEMBER 31, 1927, A TOTAL OF 3 YEARS 2 MONTHS AND 19 DAYS.

SECTION 17, AS AMENDED, READS 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. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION: * * *

THIS ACT HAS BEEN CONSTRUED AS AUTHORIZING RETIRED OFFICERS TO COUNT ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PERIOD PAY EFFECTIVE MAY 26, 1928. DECISION OF JULY 5, 1928, A-23440, 8 COMP. GEN. 5. THE RETIRED PAY IS TO BE COMPUTED AS AUTHORIZED BY LAW ON THE BASIS OF THE PAY PRESCRIBED IN THE 1922 PAY ACT. IT APPEARS THAT MAJOR ENGEL WAS SELECTED FOR ELIMINATION FROM THE ACTIVE LIST OF THE ARMY, DUE TO REDUCTION OF THE COMMISSIONED PERSONNEL, UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1922, 42 STAT. 722, AND THAT ACT PROVIDES FOR TRANSFER TO THE UNLIMITED RETIRED LIST UNDER CONDITIONS PRESCRIBED AS FOLLOWS:

* * * OFFICERS SELECTED FOR ELIMINATION * * * 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 75 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: * * *

THIS ACT MAKES PROVISION FOR A CLASS OF OFFICERS SELECTED FOR ELIMINATION PRIOR TO JANUARY 1, 1923, FROM THE ACTIVE LIST OF THE ARMY, AND FIXES PERMANENTLY THE PERCENTAGE OF THEIR ACTIVE PAY OFFICERS RETIRED UNDER ITS TERMS SHALL RECEIVE AS RETIRED PAY.

MAJOR ENGEL COMPLETED 19 FULL YEARS OF SERVICE AUTHORIZED TO BE COUNTED IN COMPUTING, UNDER THE ACT, THE PERCENTAGE RATE OF HIS PAY, WHICH ENTITLES HIM TO 2 1/2 PERCENT MULTIPLIED BY 19, OR 47 1/2 PERCENT OF THE PAY OF HIS GRADE AND LENGTH OF SERVICE AUTHORIZED TO BE COUNTED FOR PAY. AT THE TIME HE WAS RETIRED HE WAS ENTITLED TO RETIRED PAY AS MAJOR, FOURTH PAY PERIOD, WITH LONGEVITY OF OVER 21 YEARS, OR 47 1/2 PERCENT OF $337.50, $160.31.

BY VIRTUE OF THE AMENDATORY ACT OF MAY 26, 1928, HIS ACTIVE SERVICE SINCE RETIREMENT IS INCLUDED IN THE COMPUTATION OF HIS LONGEVITY AND PERIOD PAY, ENTITLING HIM TO 47 1/2 PERCENT OF THE PAY PRESCRIBED FOR A MAJOR, FIFTH PAY PERIOD, WITH LONGEVITY OF OVER 24 YEARS, $408.33, OR RETIRED PAY OF $193.95 PER MONTH. THE 1928 ACT AUTHORIZED THE COUNTING OF SERVICE SINCE RETIREMENT FOR LONGEVITY AND PERIOD PAY PURPOSES ONLY AND NOT A CHANGE IN THE PERCENTAGE OF ACTIVE DUTY PAY TO BE PAID AS RETIRED PAY, WHICH WAS DEFINITELY AND FINALLY FIXED BY THE LAW UNDER WHICH HE WAS RETIRED. YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.