A-24196, JUNE 29, 1929, 8 COMP. GEN. 665

A-24196: Jun 29, 1929

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THE INCLUSION OF ANY SERVICE WHICH WAS NOT AUTHORIZED BY PREEXISTING LAWS TO BE INCLUDED IN THE COMPUTATION OF SERVICE FOR PAY PURPOSES. HAS APPLIED FOR A DECISION AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN FAVOR OF 2ND LIEUTENANT PAUL H. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER NATIONAL GUARD SERVICE SUBSEQUENT TO RETIREMENT. YOUR DECISION IS REQUESTED. WEYRAUCH (DESIGNATED IN OFFICIAL RECORDS ALSO AS WEYRANCH) WAS RETIRED AS A SECOND LIEUTENANT. BY REASON OF THIS SERVICE WEYRAUCH WAS PAID RETIRED PAY PRIOR TO MAY 8. 800 PER ANNUM ($150 PER MONTH) WHICH IS 75 PERCENTUM OF $2. THE CLAIM FOR ADDITIONAL PAY IS BASED ON WHAT PURPORTS TO BE AN OFFICIAL COPY OF A CERTIFICATE OF SERVICE EXECUTED AUGUST 1.

A-24196, JUNE 29, 1929, 8 COMP. GEN. 665

PAY - RETIRED - COMMISSIONED SERVICE IN NATIONAL GUARD AFTER RETIREMENT ARMY OFFICER AN OFFICER OF THE ARMY RETIRED FOR DISABILITY IN LINE OF DUTY PRIOR TO JULY 1, 1922, MAY NOT INCLUDE IN THE COMPUTATION OF HIS SERVICE FOR PURPOSES OF COMPARISON UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, TO DETERMINE PERIOD AND LENGTH-OF-SERVICE PAY UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED, ANY PERIOD OF TIME DURING WHICH HE HAS HELD A COMMISSION AS AN OFFICER OF THE NATIONAL GUARD, NOT IN FEDERAL SERVICE, SINCE HIS RETIREMENT. THE ACT OF MAY 8, 1926, 44 STAT. 417, DOES NOT AUTHORIZE, IN THE COMPUTATION OF SERVICE FOR PURPOSES OF COMPARISON THEREUNDER TO DETERMINE PERIOD AND LENGTH-OF-SERVICE PAY UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE INCLUSION OF ANY SERVICE WHICH WAS NOT AUTHORIZED BY PREEXISTING LAWS TO BE INCLUDED IN THE COMPUTATION OF SERVICE FOR PAY PURPOSES.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 29, 1929:

MAJOR E. T. COMEGYS, F.D., U.S. ARMY, HAS APPLIED FOR A DECISION AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN FAVOR OF 2ND LIEUTENANT PAUL H. WEYRAUCH U.S. ARMY, RETIRED, COVERING DIFFERENCE IN RETIRED PAY OF A 2ND LIEUTENANT WITH OVER 12 YEARS' SERVICE AND OVER 15 YEARS' SERVICE UNDER THE ACT OF JUNE 10, 1922, AND ACT OF MAY 8, 1926, FOR THE PERIOD JULY 1, 1926, THRU JULY 31, 1928.

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER NATIONAL GUARD SERVICE SUBSEQUENT TO RETIREMENT, OTHER THAN THAT WHEN DRAFTED INTO FEDERAL SERVICE, MAY BE INCLUDED FOR THE PURPOSE OF COMPUTING LONGEVITY PAY UNDER THE ABOVE-QUOTED ACTS, AND YOUR DECISION IS REQUESTED.

THE OFFICIAL REGISTER, UNITED STATES ARMY, 1928, SHOWS THAT THE CLAIMANT, WEYRAUCH (DESIGNATED IN OFFICIAL RECORDS ALSO AS WEYRANCH) WAS RETIRED AS A SECOND LIEUTENANT, U.S. ARMY, FOR DISABILITY IN LINE OF DUTY, MARCH 1, 1907, THEN HAVING COMPLETED 4 YEARS 9 MONTHS AND 6 DAYS' SERVICE AS A COMMISSIONED OFFICER, AFTER 6 YEARS 10 MONTHS 29 DAYS' PREVIOUS SERVICE AS AN ENLISTED MAN, U.S. ARMY, THUS HAVING TOTAL SERVICE AT DATE OF RETIREMENT WHICH MIGHT BE INCLUDED IN THE COMPUTATION OF LONGEVITY INCREASE IN PAY UNDER SECTION 1262, REVISED STATUTES, OF 11 YEARS 8 MONTHS AND 5 DAYS; THE OFFICIAL REGISTER ALSO SHOWS THAT WEYRAUCH HAD ACTIVE FEDERAL SERVICE DURING THE WORLD WAR AS A COMMISSIONED OFFICER OF THE NATIONAL GUARD UNDER A CALL OR DRAFT BY THE PRESIDENT AMOUNTING TO 2 YEARS AND 6 DAYS, HIS TOTAL ACTIVE FEDERAL SERVICE BEFORE AND SINCE RETIREMENT, ACCORDING TO THIS RECORD, BEING 13 YEARS 8 MONTHS AND 11 DAYS.

BY REASON OF THIS SERVICE WEYRAUCH WAS PAID RETIRED PAY PRIOR TO MAY 8, 1926, AT THE RATE OF $1,530 PER ANNUM ($127.50 PER MONTH) OR 75 PERCENTUM OF THE BASE PAY PRESCRIBED FOR A SECOND LIEUTENANT OF THE ARMY IN THE ACT OF MAY 11, 1908, 35 STAT. 108, AT $1,700 PER ANNUM, INCREASED UNDER SECTION 1262, REVISED STATUTES, BY 20 PERCENTUM FOR MORE THAN 10 AND LESS THAN 15 YEARS' TOTAL SERVICE, $2,040; SINCE MAY 8, 1926, UNDER THE ACT OF THAT DATE, 44 STAT. 417, HE HAS BEEN PAID RETIRED PAY AT THE RATE OF $1,800 PER ANNUM ($150 PER MONTH) WHICH IS 75 PERCENTUM OF $2,000, BASE PAY OF THE SECOND PERIOD AS PRESCRIBED IN SECTION 1, ACT OF JUNE 10, 1922, 42 STAT. 625, INCREASED BY 20 PERCENTUM, $2,400, ON ACCOUNT OF HIS HAVING COMPLETED FOUR 3-YEAR PERIODS OF SERVICE, INCLUDING THE 2 YEARS AND 6 MONTHS' ACTIVE COMMISSIONED SERVICE RENDERED SINCE RETIREMENT AS A NATIONAL GUARD OFFICER EMPLOYED IN FEDERAL SERVICE DURING THE WORLD WAR.

THE CLAIM FOR ADDITIONAL PAY IS BASED ON WHAT PURPORTS TO BE AN OFFICIAL COPY OF A CERTIFICATE OF SERVICE EXECUTED AUGUST 1, 1928, BY THE ADJUTANT GENERAL, WASHINGTON NATIONAL GUARD, AS OLLOWS:

THIS IS TO CERTIFY THAT THE RECORDS OF THIS OFFICE SHOW THAT PAUL H. WEYRAUCH SERVED IN THE NATIONAL GUARD OF WASHINGTON AS FOLLOWS:

APPOINTED CAPTAIN, INFANTRY, TO RANK FEBRUARY 5, 1910, AND ASSIGNED TO 2ND WASHINGTON INFANTRY. (GENERAL ORDERS, NO. 4, A.G.O., DATED FEBRUARY 11, 1910.) RESIGNATION OF THIS COMMISSION ACCEPTED JUNE 10, 1912. (GENERAL ORDERS, NO. 14, A.G.O., DATED JUNE 10, 1912.)

APPOINTED CAPTAIN, WASHINGTON FIELD ARTILLERY, JULY 9, 1917; PROMOTED TO MAJOR, FIELD ARTILLERY, WASHINGTON NATIONAL GUARD, AUGUST 4, 1917. DRAFTED INTO FEDERAL SERVICE (WORLD WAR) AS MAJOR, FIELD ARTILLERY, AUGUST 5, 1917.

APPOINTED BRIGADIER GENERAL OF THE LINE, WASHINGTON NATIONAL GUARD, APRIL 20, 1926, AND FEDERALLY RECOGNIZED AS SUCH JUNE 7, 1926, CONTINUING IN THIS STATUS TO DATE.

PARAGRAPHS 10 AND 11, SECTION 1 AND SECTION 17, ACT JUNE 10, 1922, 42 STAT. 625, PROVIDE:

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS * * *. NOTHING CONTAINED IN THE FIRST SENTENCE OF SECTION 17 OR IN ANY OTHER SECTION OF THIS ACT SHALL AUTHORIZE AN INCREASE IN THE PAY OF OFFICERS OR WARRANT OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922.

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY * * *; AND ALSO 75 PERCENTUM OF ALL OTHER PERIODS OF TIME DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE ORGANIZED MILITIA BETWEEN JANUARY 21, 1903, AND JULY 1, 1916, OR OF THE NATIONAL GUARD, THE NAVAL MILITIA, OR THE NATIONAL NAVAL VOLUNTEERS SINCE JUNE 3, 1916 * * *.

SEC. 17. THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS * * * SHALL HAVE THEIR RETIRED PAY * * * COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS * * * NOW ON THE RETIRED LIST * * * OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST * * * SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION * * *.

THE ACT OF MAY 8, 1926, 44 STAT. 417, PROVIDES:

THAT HEREAFTER THE RETIRED PAY OF THE OFFICERS AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WHO WERE RETIRED ON OR BEFORE JUNE 30, 1922, SHALL NOT BE LESS THAN THAT PROVIDED FOR THE OFFICERS AND WARRANT OFFICERS OF THESE SERVICES OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE: PROVIDED, THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER OR WARRANT OFFICER NOW ON THE RETIRED LIST.

SEC. 2. THAT ALL ACTS OR PARTS OF ACTS INCONSISTENT WITH THIS ACT ARE HEREBY REPEALED.

THE CLAIMANT, WEYRAUCH, ON JUNE 30, 1922, WAS NOT RECEIVING ANY RETIRED PAY BASED ON HIS COMMISSIONED SERVICE IN THE NATIONAL GUARD, AND AT THAT TIME HE WAS NOT AUTHORIZED TO INCLUDE SUCH SERVICE, EXCEPT THAT ABOVE MENTIONED WHEN ACTIVELY EMPLOYED IN THE UNITED STATES ARMY UNDER A CALL OR DRAFT BY THE PRESIDENT, FOR ANY PURPOSES AS A RETIRED OFFICER OF THE ARMY. AS THE CITED ACT OF JUNE 10, 1922, PROVIDED THAT IT SHOULD NOT OPERATE TO AUTHORIZE AN INCREASE OR DECREASE IN THE PAY OF OFFICERS ON THE RETIRED LIST ON JUNE 30, 1922, THE CLAIMANT CONTINUED AFTER ITS ENACTMENT, AS BEFORE, TO BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED AT 75 PERCENT OF BASE PAY AT $1,700 PER ANNUM, FIXED IN THE CITED ACT OF MAY 11, 1908, INCREASED BY 20 PERCENT FOR MORE THAN 10 AND LESS THAN 15 YEARS' TOTAL SERVICE.

THE CITED PROVISION IN PARAGRAPH 11 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, AUTHORIZING THE INCLUSION IN COMPUTING LONGEVITY PAY FOR "OFFICERS IN THE SERVICE ON JUNE 30, 1922," OF 75 PERCENT OF COMMISSIONED SERVICE IN THE NATIONAL GUARD, ETC., SINCE JUNE 3, 1916, "WAS INTENDED TO INCLUDE ONLY OFFICERS THEN IN ACTIVE SERVICE," AND HAS NO APPLICATION TO THE CLAIMANT. LEONARD V. UNITED STATES, DECIDED FEBRUARY 18, 1929, 279 U.S. 40.

THE CLAIM FOR ADDITIONAL RETIRED PAY UNDER THE ACT OF MAY 8, 1926, 44 STAT. 417, IS ON THE ASSUMPTION THAT THE ACT AUTHORIZES AFFIRMATIVELY THE COUNTING OF SERVICE BY THE CLAIMANT IN THE COMPUTATION OF HIS RETIRED PAY WHICH, UNDER PREEXISTING LAWS, MIGHT NOT BE INCLUDED, AND THAT CLAIMANT'S SERVICE AFTER RETIREMENT, FOR PURPOSES OF COMPARISON UNDER THE ACT WITH THAT OF AN OFFICER RETIRED SUBSEQUENT TO JUNE 30, 1922, MAY BE REGARDED AS THOUGH RENDERED PRIOR TO RETIREMENT. THE ACT IS NOT OPEN TO ANY SUCH CONSTRUCTION HAVING BEEN ENACTED, AS ITS TITLE INDICATES,"TO EQUALIZE THE PAY OF RETIRED OFFICERS" BY PROVIDING THAT THE RETIRED PAY OF OFFICERS RETIRED ON OR BEFORE JUNE 30, 1922, SHOULD NOT BE LESS THAN THAT PROVIDED FOR "OFFICERS * * * OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE.' LEONARD V. UNITED STATES, 279 U.S. 40.

NO RETIRED OFFICER OF THE ARMY, RETIRED EITHER BEFORE OR SINCE JUNE 30, 1922, HAS BEEN AUTHORIZED TO INCLUDE IN THE COMPUTATION OF HIS RETIRED PAY PERIODS OF TIME, AS SUCH, DURING WHICH HE HAS HELD A COMMISSION IN A STATE NATIONAL GUARD ORGANIZATION WHILE ON THE RETIRED LIST OF THE ARMY.

PAYMENT OF THE VOUCHER, TRANSMITTED WITH THE APPLICATION FOR DECISION, IS NOT AUTHORIZED AND, ACCORDINGLY, IT WILL BE RETAINED AS A PART OF THE PERMANENT RECORDS OF THE GENERAL ACCOUNTING OFFICE.