A-3137, JULY 2, 1924, 4 COMP. GEN. 8

A-3137: Jul 2, 1924

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IS NOT HIS "FIRST APPOINTMENT IN THE PERMANENT SERVICE" SUCH AS IS MADE THE BASIS FOR DETERMINING THE PAY PERIODS OF CERTAIN OFFICERS UNDER THE JOINT SERVICE PAY ACT. THE CLAIM WAS DISALLOWED ON THE GROUND THAT SINCE CLAIMANT ORIGINALLY ENTERED THE SERVICE AS A SECOND LIEUTENANT AND HAD NOT COMPLETED 14 YEARS' SERVICE HE WAS NOT ENTITLED TO THE ALLOWANCES OF THE FOURTH PERIOD. THAT CLAIMANT WAS PROBATIONALLY APPOINTED ON APRIL 1. WHICH APPOINTMENT WAS ACCEPTED ON APRIL 17. THAT HE WAS APPOINTED MAJOR. THAT HE WAS DISCHARGED UNDER THE PROVISIONS OF THE ACT OF JUNE 30. HE WAS AGAIN PROMOTED TO A MAJORITY IN THE CORPS OF ENGINEERS. WHEN HE WAS DISCHARGED AS A MAJOR AND RECOMMISSIONED IN THE GRADE OF CAPTAIN.

A-3137, JULY 2, 1924, 4 COMP. GEN. 8

ARMY PAY - OFFICERS DISCHARGED AND RECOMMISSIONED THE COMMISSION GIVEN AN ARMY OFFICER WHEN DISCHARGED AND RECOMMISSIONED UNDER THE ARMY REORGANIZATION ACT OF JUNE 30, 1922, 42 STAT. 722, IS NOT HIS "FIRST APPOINTMENT IN THE PERMANENT SERVICE" SUCH AS IS MADE THE BASIS FOR DETERMINING THE PAY PERIODS OF CERTAIN OFFICERS UNDER THE JOINT SERVICE PAY ACT.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 2, 1924:

OSCAR O. KUENTZ, MAJOR, CORPS OF ENGINEERS, REQUESTED APRIL 21, 1924, REVIEW OF SETTLEMENT NO. M-805877-W, DATED MARCH 26, 1924, DISALLOWING HIS CLAIM UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, FOR THE DIFFERENCE BETWEEN THE ALLOWANCES OF THE FOURTH AND THIRD PAY PERIODS SUBSEQUENT TO OCTOBER 14, 1923. THE CLAIM WAS DISALLOWED ON THE GROUND THAT SINCE CLAIMANT ORIGINALLY ENTERED THE SERVICE AS A SECOND LIEUTENANT AND HAD NOT COMPLETED 14 YEARS' SERVICE HE WAS NOT ENTITLED TO THE ALLOWANCES OF THE FOURTH PERIOD.

THE ADJUTANT GENERAL OF THE ARMY REPORTED JANUARY 4, 1924, THAT CLAIMANT WAS PROBATIONALLY APPOINTED ON APRIL 1, 1915, WHICH APPOINTMENT WAS ACCEPTED ON APRIL 17, 1915, AS A SECOND LIEUTENANT IN THE ENGINEER CORPS OF THE ARMY; THAT HE SERVED SUCCESSIVELY AS FIRST LIEUTENANT AND CAPTAIN, REGULAR ARMY; THAT HE WAS APPOINTED MAJOR, TEMPORARY, ON AUGUST 5, 1917, AND PROMOTED TO MAJOR, PERMANENT, ON FEBRUARY 12, 1920; AND IT APPEARS FROM THE ARMY REGISTER, 1924, PAGE 334, THAT HE WAS DISCHARGED UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1922, 42 STAT. 721, ON NOVEMBER 4, 1922, RECOMMISSIONED THE SAME DAY AS A CAPTAIN; AND IT FURTHER APPEARS THAT ON OCTOBER 14, 1923, HE WAS AGAIN PROMOTED TO A MAJORITY IN THE CORPS OF ENGINEERS. IN OTHER WORDS, CLAIMANT ENTERED THE REGULAR ARMY ON APRIL 17, 1915, AS A SECOND LIEUTENANT AND HAS SERVED THEREIN CONTINUOUSLY TO THE PRESENT TIME, EXCEPT FOR A SHORT PERIOD ON NOVEMBER 4, 1922, WHEN HE WAS DISCHARGED AS A MAJOR AND RECOMMISSIONED IN THE GRADE OF CAPTAIN.

THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 625, PROVIDES, IN SECTION 1, THEREOF, THAT THE PAY OF THE FIFTH PERIOD, $3,500, SHOULD BE PAID TO MAJORS OF THE ARMY WHO HAVE COMPLETED 23 YEARS OF SERVICE; THAT THE PAY OF THE FOURTH PERIOD, $3,000, SHOULD BE PAID TO MAJORS "WHO HAVE COMPLETED 14 YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANT IN THE ARMY," AND THAT THE PAY OF THE THIRD PERIOD, $2,400, SHOULD BE PAID TO ALL OTHER MAJORS WHOSE SERVICE, ETC., DOES NOT BRING THEM WITHIN ANY OF THE OTHER PAY PERIODS.

IT IS OBVIOUS THAT CLAIMANT IS NOT ENTITLED TO THE PAY OR ALLOWANCE OF THE FOURTH PAY PERIOD, HIS ORIGINAL ENTRY INTO THE SERVICE ON APRIL 17, 1915, WAS NOT IN A GRADE ABOVE THAT OF SECOND LIEUTENANT, NOR HAS HE COMPLETED 14 YEARS OF SERVICE IN THE ARMY, EITHER OF WHICH MUST BE MET AS A CONDITION PRECEDENT TO THE PAY OF THE FOURTH PERIOD. IT IS CONTENDED, HOWEVER, THAT THE ,DISCHARGE AS MAJOR ON NOVEMBER 4, 1922, AND SUBSEQUENT APPOINTMENT AS CAPTAIN ON THE SAME DAY CONSTITUTE AN ORIGINAL APPOINTMENT AS CAPTAIN AS OF NOVEMBER 4, 1922," REFERENCE BEING MADE TO 2 COMP. GEN. 170. THE DECISION REFERRED TO DID NOT HOLD THAT A DISCHARGE AND RECOMMISSION IN A LOWER GRADE CONSTITUTED A "FIRST APPOINTMENT IN THE PERMANENT SERVICE" BUT HELD THAT IT EFFECTED A COMPLETE SEPARATION FROM THE SERVICE IN SO FAR AS WAS CONCERNED THE CARRYING FORWARD TO THE LOWER GRADE THE RIGHT TO COUNT CERTAIN SERVICE IN THE HIGHER GRADE FOR LONGEVITY PURPOSES. THE RIGHT WAS SUBSEQUENTLY GIVEN BY STATUTE TO COUNT SUCH SERVICE. SEE 3 COMP. GEN. 675. THE ACCEPTANCE OF A COMMISSION AS CAPTAIN ON NOVEMBER 4, 1922, WAS NOT A "FIRST APPOINTMENT IN A PERMANENT SERVICE.' IT WAS A REAPPOINTMENT IN THE PERMANENT SERVICE. SEE 2 COMP. GEN. 234.

THE DISALLOWANCE OF THE CLAIM WAS IN ACCORDANCE WITH THE LAW AND MUST BE, AND IS, AFFIRMED.