A-24914, JANUARY 25, 1929, 8 COMP. GEN. 395

A-24914: Jan 25, 1929

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THE RECORDS OF THIS OFFICE SHOW THAT THE ABOVE-NAMED RESERVE OFFICER IS ALSO A RETIRED WARRANT OFFICER. WHEREIN IT WAS HELD THAT A RETIRED ARMY OFFICER WAS NOT ENTITLED TO PAY AND ALLOWANCES WHILE ON ACTIVE DUTY AS A RESERVE OFFICER. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THIS VOUCHER IS PAYABLE UNDER THE LAW. YOUR DECISION IS REQUESTED. WAS ORDERED TO REPORT FOR ACTIVE DUTY JULY 17. WAS DISCHARGED NOVEMBER 1. WAS A MAJOR DURING THE PERIOD COVERED BY THE VOUCHER SUBMITTED. IT WAS HELD A LIEUTENANT COLONEL. WAS NOT AUTHORIZED. THE APPOINTMENT IN THAT CASE NECESSARILY WAS TREATED AS VOID IN SO FAR AS THERE WAS INVOLVED ANY RIGHT TO PAY AND ALLOWANCES. THERE IS NOT PERCEIVED SUCH AN INCOMPATIBILITY IN THE APPOINTMENT OF A RETIRED WARRANT OFFICER TO A COMMISSIONED OFFICE IN THE RESERVE CORPS.

A-24914, JANUARY 25, 1929, 8 COMP. GEN. 395

PAY - RETIRED WARRANT OFFICER OF ARMY ON ACTIVE DUTY UNDER RESERVE COMMISSION A WARRANT OFFICER ON THE RETIRED LIST OF THE ARMY WHO SERVED AS A CAPTAIN, SIGNAL SECTION, IN THE RESERVE CORPS DURING THE WORLD WAR, AND WHO ACCEPTED APPOINTMENT AS A MAJOR, SIGNAL CORPS SECTION, OFFICERS' RESERVE CORPS, JANUARY 14, 1923, WHEN ON ACTIVE DUTY UNDER HIS RESERVE COMMISSION OF MAJOR, MAY BE PAID ACTIVE-DUTY PAY AND ALLOWANCES OF THAT GRADE, BUT HE MAY NOT BE PAID AS A RETIRED WARRANT OFFICER WHILE ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES UNDER HIS RESERVE COMMISSION.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, JANUARY 25, 1929:

THERE HAS BEEN RECEIVED YOUR APPLICATION FOR DECISION AS FOLLOWS:

THE ATTACHED VOUCHER IN FAVOR OF MAJ. JAMES KELLY, SIGNAL CORPS RESERVE, COVERS ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 7 TO 20, 1928, UNDER THE AUTHORITY OF PARAGRAPH 17, SPECIAL ORDERS NO. 217, HEADQUARTERS THIRD CORPS AREA, DATED SEPTEMBER 5, 1928.

THE RECORDS OF THIS OFFICE SHOW THAT THE ABOVE-NAMED RESERVE OFFICER IS ALSO A RETIRED WARRANT OFFICER, HAVING BEEN RETIRED JULY 14, 1922, ON HIS OWN APPLICATION, AFTER MORE THAN 30 YEARS' SERVICE.

IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL (6 COMP. GEN. 750), WHEREIN IT WAS HELD THAT A RETIRED ARMY OFFICER WAS NOT ENTITLED TO PAY AND ALLOWANCES WHILE ON ACTIVE DUTY AS A RESERVE OFFICER, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THIS VOUCHER IS PAYABLE UNDER THE LAW, AND YOUR DECISION IS REQUESTED.

THE STATEMENT OF SERVICE FROM THE ADJUTANT GENERAL OF THE ARMY SUBMITTED WITH YOUR APPLICATION ALSO SHOWS JAMES KELLY ACCEPTED APPOINTMENT AS CAPTAIN, SIGNAL SECTION, IN THE RESERVE CORPS, JUNE 11, 1917, WAS ORDERED TO REPORT FOR ACTIVE DUTY JULY 17, 1917, AND WAS DISCHARGED NOVEMBER 1, 1920; ALSO, THAT HE ACCEPTED APPOINTMENT AS MAJOR, SIGNAL CORPS SECTION, OFFICERS' RESERVE CORPS, ON NOVEMBER 14, 1923, HAD ACTIVE DUTY PREVIOUSLY UNDER THIS APPOINTMENT FROM APRIL 18, 1926, TO MAY 2, 1926, AND WAS A MAJOR DURING THE PERIOD COVERED BY THE VOUCHER SUBMITTED.

THE STATUTE PRESCRIBING QUALIFICATIONS AND ELIGIBILITY FOR APPOINTMENT IN THE OFFICERS' RESERVE CORPS PROVIDES---

* * * IN TIME OF PEACE A RESERVE OFFICER MUST AT THE TIME OF HIS APPOINTMENT BE A CITIZEN OF THE UNITED STATES OR OF THE PHILIPPINE ISLANDS, BETWEEN THE AGES OF TWENTY-ONE AND SIXTY YEARS. ANY PERSON WHO HAS BEEN AN OFFICER OF THE ARMY AT ANY TIME BETWEEN APRIL 6, 1917, AND JUNE 30, 1919, OR AN OFFICER OF THE REGULAR ARMY AT ANY TIME, MAY BE APPOINTED AS A RESERVE OFFICER IN THE HIGHEST GRADE WHICH HE HELD IN THE ARMY OR ANY LOWER GRADE. ANY PERSON COMMISSIONED IN THE NATIONAL GUARD AND RECOGNIZED AS A NATIONAL GUARD OFFICER BY THE SECRETARY OF WAR MAY UPON HIS OWN APPLICATION BE APPOINTED AS A RESERVE OFFICER IN THE GRADE HELD BY HIM IN THE NATIONAL GUARD. NO OTHER PERSON SHALL IN TIME OF PEACE BE ORIGINALLY APPOINTED AS A RESERVE OFFICER OF INFANTRY, CAVALRY, FIELD ARTILLERY, COAST ARTILLERY, OR AIR SERVICE IN A GRADE ABOVE THAT OF SECOND LIEUTENANT. IN TIME OF PEACE APPOINTMENTS IN THE INFANTRY, CAVALRY, FIELD ARTILLERY, COAST ARTILLERY, AND AIR SERVICE SHALL BE LIMITED TO FORMER OFFICERS OF THE ARMY, OFFICERS OF THE NATIONAL GUARD RECOGNIZED AS SUCH BY THE SECRETARY OF WAR, GRADUATES OF THE RESERVE OFFICERS' TRAINING CORPS, AS PROVIDED IN SECTION 47B HEREOF, WARRANT OFFICERS, AND ENLISTED MEN OF THE REGULAR ARMY, NATIONAL GUARD, AND ENLISTED RESERVE CORPS, AND PERSONS WHO SERVED IN THE ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918 * * * (SECTION 2, ACT SEPTEMBER 22, 1922, 42 STAT. 1033, AMENDING SECTION 37 OF THE NATIONAL DEFENSE ACT.)

IN 6 COMP. GEN. 750, CITED IN YOUR APPLICATION, IT WAS HELD A LIEUTENANT COLONEL, AIR SERVICE, ON THE RETIRED LIST, UNITED STATES ARMY, WAS NOT AUTHORIZED, UNDER THIS STATUTE, TO BE APPOINTED IN THE AIR SERVICE RESERVE, BEING EXCLUDED BOTH ON THE GROUND OF INCOMPATIBILITY BETWEEN THE TWO OFFICES AND BY REASON OF THE LANGUAGE USED IN THE STATUTE LIMITING APPOINTMENTS IN THE AIR SERVICE RESERVE TO THE CLASSES SPECIFICALLY NAMED, NONE OF WHICH EMBRACED THE CLAIMANT; CONSEQUENTLY, THE APPOINTMENT IN THAT CASE NECESSARILY WAS TREATED AS VOID IN SO FAR AS THERE WAS INVOLVED ANY RIGHT TO PAY AND ALLOWANCES.

THERE IS NOT PERCEIVED SUCH AN INCOMPATIBILITY IN THE APPOINTMENT OF A RETIRED WARRANT OFFICER TO A COMMISSIONED OFFICE IN THE RESERVE CORPS, IT IS NOT PROHIBITED, AND, WHERE HE IS OTHERWISE ELIGIBLE, THE STATUTE CITED EVEN EXPRESSLY AUTHORIZES, IN TIME OF PEACE, THE ORIGINAL APPOINTMENT OF BOTH WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY IN SOME OF THE LINE BRANCHES OF THE RESERVE CORPS TO THE GRADE OF SECOND LIEUTENANT, PROVIDED THE APPOINTEE IS "A CITIZEN OF THE UNITED STATES OR OF THE PHILIPPINE ISLANDS BETWEEN THE AGES OF 21 AND 60 YEARS.' EXCEPT AS IT MAY BE DONE BY PROPER REGULATIONS, THERE APPEARS NO REQUIREMENT THAT APPOINTMENTS, ORIGINAL OR OTHERWISE, IN THE SIGNAL CORPS RESERVE BE LIMITED TO THE GRADE OF SECOND LIEUTENANT, AND IN VIEW OF MAJOR KELLY'S SERVICE, AS REPORTED, HIS APPOINTMENT TO THAT BRANCH IN THE GRADE OF MAJOR ON NOVEMBER 14, 1923, SEEMS IN ACCORDANCE WITH LAW, PROVIDED HE WAS ON THAT DATE A CITIZEN OF THE UNITED STATES OR OF THE PHILIPPINE ISLANDS BETWEEN THE AGES OF 21 AND 60 YEARS.

PAYMENT AS A RETIRED WARRANT OFFICER, OF COURSE, MAY NOT BE MADE TO MAJOR KELLY DURING PERIODS HE IS ENTITLED TO BE PAID AS A RESERVE OFFICER "ON ACTIVE DUTY," UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, 41 STAT. 776, AS AMENDED BY SECTION 3, ACT JUNE 10, 1922, 42 STAT. 627, IN WHICH CONNECTION SEE PARAGRAPH 29D, ARMY REGULATIONS 140-5.