A-27716, JULY 12, 1929, 9 COMP. GEN. 8

A-27716: Jul 12, 1929

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(B) IF THE ANSWER TO QUESTION (A) IS IN THE AFFIRMATIVE. WILL LIEUTENANT DENNEHY BE REQUIRED TO REFUND ANY PAY HE HAS RECEIVED FOR DRILLS PERFORMED SUBSEQUENT TO JUNE 19. ALTHOUGH SUCH DRILLS WERE PERFORMED BY HIM PRIOR TO DATE OF THE RECEIPT OF THE NOTIFICATION THAT HE HAD BEEN PLACED ON THE RETIRED LIST? (C) IF A REFUND IS REQUIRED IN THIS AND OTHER CASES. WILL IT BE PROPER FOR THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU TO MAKE THE NECESSARY DEDUCTIONS FROM THE CURRENT RETIRED PAY? IT IS STATED THAT WILLIAM JAMES DENNEHY ACCEPTED JULY 11. HE WAS ATTACHED TO THE EIGHTEENTH DIVISION OF THE FIFTH BATTALION. HE WAS TRANSFERRED AND ATTACHED TO THE HEADQUARTERS DIVISION OF THAT BATTALION.

A-27716, JULY 12, 1929, 9 COMP. GEN. 8

PAY - RETIRED - DRILL - WORLD WAR OFFICERS AN OFFICER OF THE NAVAL RESERVE WHO HAS BEEN PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST OF THE NAVY, UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, MAY RECEIVE DRILL PAY UNDER SECTION 21 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1085, 1086, AND ALSO RETIRED PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JULY 12, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 19, 1929, TRANSMITTING LETTER OF LIEUT. W. DISMUKES, S.C., UNITED STATES NAVY, DATED JUNE 14, 1929, AND REQUESTING DECISION OF THE QUESTIONS THEREIN PRESENTED, AS FOLLOWS:

(A) WHETHER THE RECEIPT OF RETIRED PAY BY WILLIAM JAMES DENNEHY, LIEUTENANT, MC-F, U.S.N.R., UNDER THE ACT OF MAY 24, 1928, PRECLUDES FURTHER PAYMENT TO HIM OF DRILL PAY UNDER SECTION 21 OF THE ACT OF FEBRUARY 28, 1925?

(B) IF THE ANSWER TO QUESTION (A) IS IN THE AFFIRMATIVE, WILL LIEUTENANT DENNEHY BE REQUIRED TO REFUND ANY PAY HE HAS RECEIVED FOR DRILLS PERFORMED SUBSEQUENT TO JUNE 19, 1928, THE RETROACTIVE EFFECTIVE DATE OF HIS RETIREMENT, ALTHOUGH SUCH DRILLS WERE PERFORMED BY HIM PRIOR TO DATE OF THE RECEIPT OF THE NOTIFICATION THAT HE HAD BEEN PLACED ON THE RETIRED LIST?

(C) IF A REFUND IS REQUIRED IN THIS AND OTHER CASES, WILL IT BE PROPER FOR THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU TO MAKE THE NECESSARY DEDUCTIONS FROM THE CURRENT RETIRED PAY?

IT IS STATED THAT WILLIAM JAMES DENNEHY ACCEPTED JULY 11, 1925, AN APPOINTMENT AS A LIEUTENANT, MC-F, IN THE UNITED STATES NAVAL RESERVE UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080; THAT ON JANUARY 1, 1926, HE WAS ATTACHED TO THE EIGHTEENTH DIVISION OF THE FIFTH BATTALION, THIRD NAVAL DISTRICT, AND ON JANUARY 1, 1929, HE WAS TRANSFERRED AND ATTACHED TO THE HEADQUARTERS DIVISION OF THAT BATTALION; THAT ON JUNE 12, 1929, A CARBON COPY OF A LETTER FROM THE UNITED STATES VETERANS' BUREAU, DATED MAY 22, 1929, ADDRESSED TO THE SECRETARY OF THE NAVY, WAS RECEIVED IN THE BUREAU OF SUPPLIES AND ACCOUNTS, IN WHICH IT WAS STATED:

THE RECORDS SHOW THAT A LETTER WAS FORWARDED TO YOUR DEPARTMENT, ADVISING THAT WILLIAM J. DENNEHY, LIEUTENANT, U.S. NAVAL RESERVE, WAS AWARDED RETIREMENT WITH PAY UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT, EFFECTIVE JUNE 19, 1928, HIS PRESENT ADDRESS BEING 388 WHALLEY AVENUE, NEW HAVEN, CONNECTICUT.

THAT FROM JUNE 19, 1928, TO MARCH 31, 1929, LIEUTENANT DENNEHY HAS BEEN PAID FOR 37 DRILLS AND 2 PERIODS OF EQUIVALENT INSTRUCTIONS OR DUTY AT THE RATE OF $6.666 EACH, A TOTAL OF $259.99.

THE ACT OF MAY 24, 1928, 45 STAT. 735, PROVIDES THAT CERTAIN BENEFICIARIES UNDER THE WORLD WAR VETERANS' ACT AS A RESULT OF APPLICATION BY THE BENEFICIARY AND ACTION BY THE DIRECTOR OF THE VETERANS' BUREAU.

* * * SHALL * * * BE PLACED UPON, AND THEREAFTER CONTINUED ON, SEPARATE RETIRED LISTS, HEREBY CREATED AS PART OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, TO BE KNOWN AS THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, RESPECTIVELY, WITH THE RANK HELD BY THEM WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE, AND SHALL BE ENTITLED TO THE SAME PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED FOR BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, * * * AND SHALL RECEIVE FROM DATE OF RECEIPT OF THEIR APPLICATION RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE, EXCEPT PAY UNDER THE ACT OF MAY 18, 1920: PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW SHALL BE PAID SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE UNITED STATES VETERANS' BUREAU, AND SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, EXCEPT AS OTHERWISE AUTHORIZED HEREIN, AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922;

SECTION 212 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 798, PROVIDES IN PART:

THIS ACT IS INTENDED TO PROVIDE A SYSTEM FOR THE RELIEF OF PERSONS WHO WERE DISABLED, AND FOR THE DEPENDENTS OF THOSE WHO DIED AS A RESULT OF DISABILITY SUFFERED IN THE MILITARY SERVICE OF THE UNITED STATES BETWEEN APRIL 6, 1917, AND JULY 2, 1921. FOR SUCH DISABILITIES AND DEATHS NO OTHER PENSION LAWS OR LAWS PROVIDING FOR GRATUITIES OR PAYMENTS IN THE EVENT OF DEATH IN THE SERVICE SHALL BE APPLICABLE: PROVIDED, HOWEVER, THAT THE LAWS RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE SHALL NOT BE CONSIDERED TO BE LAWS PROVIDING FOR PENSIONS, GRATUITIES, OR PAYMENTS WITHIN THE MEANING OF THIS SECTION: AND PROVIDED FURTHER, THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY, THIS PROVISO TO BE EFFECTIVE AS OF APRIL 6, 1917. * * *

IN 8 COMP. GEN. 423, 430 IT WAS HELD THAT A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, IF OTHERWISE COMING WITHIN THE TERMS OF THE ACT OF MAY 24, 1928, WAS ENTITLED TO RETIREMENT THEREUNDER, ALTHOUGH WHILE ON ACTIVE DUTY AND IN RECEIPT OF ACTIVE-SERVICE PAY AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY HE WOULD NOT BE ENTITLED TO RETIRED PAY UNDER THE ACT OF 1928.

THE STATUS OF MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY IS SOMEWHAT SIMILAR TO THAT OF OFFICERS OF THE UNITED STATES NAVAL RESERVE, AND THE ABOVE DECISION WOULD BE APPLICABLE TO THEM UNLESS THEY ARE PROHIBITED FROM RECEIVING THE BENEFITS OF THE 1928 ACT BY REASON OF CERTAIN PROVISIONS IN THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080. SECTION 21 OF THIS ACT PROVIDES:

OFFICERS BELOW THE GRADE OR RANK OF LIEUTENANT COMMANDER AND ENLISTED MEN OF THE FLEET NAVAL RESERVE ATTACHED TO A DIVISION THEREOF, ORGANIZED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, SHALL RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE MONTHLY BASE PAY OF THEIR GRADES, RANKS, OF RATINGS FOR ATTENDING, UNDER COMPETENT ORDERS, EACH REGULAR DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: PROVIDED, THAT NO SUCH OFFICER OR ENLISTED MAN SHALL RECEIVE PAY FOR MORE THAN 60 DRILLS OR OTHER EQUIVALENT INSTRUCTION OR DUTY IN ANY ONE FISCAL YEAR: PROVIDED FURTHER, THAT WEEK- END CRUISES SHALL NOT BE REGARDED AS DRILLS OR OTHER EQUIVALENT INSTRUCTIONS OR DUTY.

FOR SATISFACTORY PERFORMANCE OF THEIR APPROPRIATE DUTIES UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE, OFFICERS ABOVE THE GRADE OR RANK OF LIEUTENANT OF THE FLEET NAVAL RESERVE SHALL RECEIVE COMPENSATION AT THE RATE OF NOT MORE THAN $500 A YEAR, AND OFFICERS BELOW THE GRADE OR RANK OF LIEUTENANT COMMANDER AND ENLISTED MEN OF THE FLEET NAVAL RESERVE NOT ATTACHED TO A DIVISION THEREOF, SHALL RECEIVE NOT MORE THAN FOUR-THIRTIETHS OF THE MONTHLY BASE PAY OF THEIR GRADES, RANKS, OR RATINGS, EACH MONTH.

IN ADDITION TO THE PAY TO WHICH THEY MAY OTHERWISE BECOME ENTITLED UNDER THIS SECTION, OFFICERS OF OR BELOW THE GRADE OR RANK OF CAPTAIN OF THE FLEET NAVAL RESERVE REGULARLY ASSIGNED TO AND COMMANDING ORGANIZATIONS OF THE FLEET NAVAL RESERVE, ORGANIZED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY, AND HAVING ADMINISTRATIVE FUNCTIONS, SHALL RECEIVE COMPENSATION AT THE RATE OF $240 A YEAR FOR THE FAITHFUL PERFORMANCE OF THE ADMINISTRATIVE DUTIES CONNECTED THEREWITH.

PAY UNDER THE PROVISIONS OF THIS SECTION SHALL NOT ACCRUE TO ANY OFFICER OR ENLISTED MAN DURING A PERIOD WHEN HE SHALL BE LAWFULLY ENTITLED TO PAY FOR ACTIVE DUTY OR TRAINING DUTY.

SECTION 20 PROVIDES THAT IN TIME OF PEACE, EXCEPT AS THEREIN OTHERWISE PROVIDED, OFFICERS AND ENROLLED AND ENLISTED MEN OF THE FLEET NAVAL RESERVE SHALL BE REQUIRED TO PERFORM SUCH TRAINING DUTY, NOT TO EXCEED 15 DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, UNLESS EXCUSED THEREFROM FOR GOOD AND SUFFICIENT REASONS BY THE DIRECTION OF THE SECRETARY OF THE NAVY, AND THAT THEY MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY.

SECTION 11 PROVIDES THAT COMMISSIONED OFFICERS OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY, WITH PAY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL BE DEEMED TO HAVE BEEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE, AND SHALL RECEIVE THE PAY, ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES. THE PAY THUS REFERRED TO IS PROVIDED IN SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627.

IT WILL BE NOTED THAT THE PAY PRESCRIBED IN SECTION 11 FOR ACTIVE DUTY OR TRAINING DUTY IS ACTIVE DUTY OR ACTIVE SERVICE PAY WHILE THE PAY PRESCRIBED IN SECTION 21 FOR THE PERFORMANCE OF DRILLS OR OTHER EQUIVALENT DUTY, APPROPRIATE DUTIES, AND FOR ADMINISTRATIVE FUNCTIONS, ARE SPECIAL RATES OF COMPENSATION FOR THE PERFORMANCE OF SPECIFIC DUTIES TO FIT THEM FOR ACTIVE SERVICE. THAT THE COMPENSATION PROVIDED IN SECTION 21 IS NOT "ACTIVE" SERVICE PAY IS EXPRESSLY RECOGNIZED IN THE LAST PARAGRAPH OF THAT SECTION. THE RECEIPT OF SUCH PAY BY AN OFFICER OF THE NAVAL RESERVE WOULD NOT BAR HIM FROM RECEIVING RETIRED PAY UNDER THE 1928 ACT TO WHICH HE MIGHT OTHERWISE BE ENTITLED.

IN SECTION 4 OF THE 1925 ACT, IT IS PROVIDED:

* * * THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHALL BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION EXCEPT THE NAVAL MILITIA: AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY OR ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT.

THE QUESTION THUS ARISES AS TO WHETHER THE EMERGENCY OFFICERS' RETIRED LIST OF THE NAVY IS A NAVAL ORGANIZATION WITHIN THE MEANING OF THE ABOVE PROVISION. ORDINARILY, MEMBERSHIP IN A NAVAL OR MILITARY ORGANIZATION CARRIES WITH IT CERTAIN DUTIES AND OBLIGATIONS WHICH WOULD CONFLICT WITH THE DUTIES AND OBLIGATIONS INCIDENT TO MEMBERSHIP IN ANOTHER NAVAL OR MILITARY ORGANIZATION. THE PURPOSE OF THIS PROVISION WAS TO AVOID SUCH CONFLICT. SEE IN THIS CONNECTION 6 COMP. GEN. 750.

IT IS APPARENT THAT THE FORMER OFFICERS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST, CREATED BY THE ACT OF MAY 24, 1928, HAVE NOT THE SAME STATUS AS THOSE ON THE RETIRED LIST OF THE REGULAR ARMY AND NAVY. THE ACT OF MAY 24, 1928, BY ITS TITLE AND BY ITS TERMS, MAKES PROVISION ONLY FOR PAY AND BENEFITS FOR FORMER OFFICERS AND DOES NOT PROVIDE OR CONTEMPLATE THAT THEY SHALL PERFORM ANY SERVICE IN THE ARMY, NAVY, OR MARINE CORPS.

IT IS CONCLUDED THAT THE EMERGENCY OFFICERS' RETIRED LIST OF THE NAVY IS NOT A NAVAL ORGANIZATION WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 4 OF THE ACT OF FEBRUARY 28, 1925. QUESTION "A" IS ANSWERED IN THE NEGATIVE, WHICH RENDERS IT UNNECESSARY TO DECIDE THE OTHER QUESTIONS SUBMITTED.