A-43376, AUGUST 2, 1933, 13 COMP. GEN. 29

A-43376: Aug 2, 1933

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PAY - RETIRED - ARMY OFFICER WHERE AN OFFICER OF THE ARMY WAS RETIRED AS CAPTAIN MAY 19. HE IS PERMITTED UNDER THE ACT OF MARCH 2. HE IS NOT ENTITLED FOR PURPOSE OF COMPARISON UNDER THE PROVISIONS OF THE ACT OF MAY 26. YOU WERE RETIRED. YOU ARE PERMITTED TO COUNT IN THE COMPUTATION OF LONGEVITY. YOUR RETIRED PAY WAS $180 PER MONTH COMPUTED UNDER THE 1908 ACT. WAS ENACTED. WERE EXTENDED TO OFFICERS RETIRED ON OR BEFORE JUNE 30. " AND LAWS INCONSISTENT THEREWITH WERE REPEALED. IT WAS ALSO SO HELD BY THE COURT OF CLAIMS AND THE SUPREME COURT IN LEONARD V. THE FACT THAT THE OFFICER WAS NOT ENTITLED TO PERIOD PAY UNDER THE ACT OF JUNE 10. WHICH WAS HOWEVER. SEEMS TO HAVE BEEN OVERLOOKED.

A-43376, AUGUST 2, 1933, 13 COMP. GEN. 29

PAY - RETIRED - ARMY OFFICER WHERE AN OFFICER OF THE ARMY WAS RETIRED AS CAPTAIN MAY 19, 1920, FOR WOUNDS RECEIVED IN BATTLE, AT WHICH TIME HE HAD COMPLETED 6 YEARS, 1 MONTH, AND 6 DAYS' ACTIVE SERVICE, HE IS PERMITTED UNDER THE ACT OF MARCH 2, 1933, 32 STAT. 932, TO COUNT IN THE COMPUTATION OF LONGEVITY, TIME ON THE RETIRED LIST, BUT HE MAY NOT BE ADVANCED FROM ONE PAY PERIOD TO ANOTHER EXCEPT BY ACTIVE DUTY, AND HE IS NOT ENTITLED FOR PURPOSE OF COMPARISON UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1928, 45 STAT. 774, TO CREDIT FOR PAY ABOVE THE SECOND PAY PERIOD WITH LONGEVITY. 8 COMP. GEN. 77, MODIFIED.

COMPTROLLER GENERAL MCCARL TO MAJ. IDUS R. MCLENDON, UNITED STATES ARMY, RETIRED, AUGUST 2, 933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 1, 1933, REQUESTING REVIEW OF SETTLEMENT NO. 0381078, DATED AUGUST 15, 1932, DISALLOWING YOUR CLAIM FOR $270, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY RECEIVED BY YOU AT THE RATE OF $187.50 PER MONTH, AS CAPTAIN WITH OVER 15 YEARS' SERVICE, COMPUTED ON THE BASIS OF THE RATES PROVIDED IN THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND RETIRED PAY AT THE RATE OF $195 PER MONTH AS AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE COMPUTED ON THE BASIS OF THE RATES PROVIDED BY THE ACT OF MAY 11, 1908, 35 STAT. 108, FOR THE PERIOD FROM APRIL 12, 1929, TO APRIL 12, 1932.

IT APPEARS THAT, BECAUSE OF DISABILITY FROM WOUNDS RECEIVED IN ACTION, YOU WERE RETIRED, MAY 19, 1920, AS CAPTAIN AT WHICH TIME YOU HAD COMPLETED 6 YEARS, 1 MONTH, AND 6 DAYS' ACTIVE SERVICE, AND UNDER THE ACT OF MARCH 2, 1903, 32 STAT. 932, YOU ARE PERMITTED TO COUNT IN THE COMPUTATION OF LONGEVITY, TIME ON THE RETIRED LIST SINCE RETIREMENT, 7 COMP. GEN. 735. UPON COMPLETING 12 YEARS' SERVICE, APRIL 12, 1926, YOUR RETIRED PAY WAS $180 PER MONTH COMPUTED UNDER THE 1908 ACT, CITED, AS THEN REQUIRED BY THE LAW. WHILE RECEIVING RETIRED PAY AT THIS RATE THE ACT OF MAY 8, 1926, 44 STAT. 417, WAS ENACTED, UNDER WHICH THE BENEFITS OF RETIRED PAY COMPUTED UNDER THE ACT OF JUNE 10, 1922, CITED, WERE EXTENDED TO OFFICERS RETIRED ON OR BEFORE JUNE 30, 1922, BY PROVIDING THAT THE RETIRED PAY OF SUCH OFFICERS "SHALL NOT BE LESS THAN THAT PROVIDED FOR OFFICERS * * * OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO THAT DATE.' THE SAVING CLAUSE THEREIN PROVIDED "THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY OF ANY OFFICER OR WARRANT OFFICER NOW ON THE RETIRED LIST," AND LAWS INCONSISTENT THEREWITH WERE REPEALED.

THE RETIRED PAY OF AN OFFICER OF THE GRADE OF CAPTAIN, RETIRED FOR WOUNDS RECEIVED IN BATTLE AFTER JUNE 30, 1922, WITH 6 YEARS, 1 MONTH, AND 6 DAYS' SERVICE, WOULD BE THE BASE PAY OF THE SECOND PERIOD, $2,000, INCREASED BY LENGTH OF SERVICE UNDER THE ACT OF MARCH 2, 1903, 32 STAT. 932. HE COULD NEVER RECEIVE THE PAY OF THE THIRD PERIOD UNLESS ASSIGNED TO ACTIVE DUTY. ACT OF MAY 26, 1928, 45 STAT. 774. THIS OFFICE SO HELD, 7 COMP. GEN. 735, MAY 19, 1928, AND IT WAS ALSO SO HELD BY THE COURT OF CLAIMS AND THE SUPREME COURT IN LEONARD V. THE UNITED STATES, 64 CT.CLS. 384, AFFIRMED BY THE SUPREME COURT, 279 U.S. 40, FEBRUARY 18, 1929. IN THE DECISION OF THIS OFFICE, 8 COMP. GEN. 77, DECIDED AUGUST 17, 1928, THE FACT THAT THE OFFICER WAS NOT ENTITLED TO PERIOD PAY UNDER THE ACT OF JUNE 10, 1922, BY REASON OF HIS ACTUAL SERVICE ON DATE OF RETIREMENT, WHICH WAS HOWEVER, THE SAME AS HIS BASE PAY UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, SEEMS TO HAVE BEEN OVERLOOKED, AND THAT DECISION NECESSARILY MUST NOW BE MODIFIED TO CONFORM WITH THE HOLDING OF THE SUPREME COURT IN THE LEONARD CASE.

SO, ALSO, IN YOUR CASE, A CAPTAIN WITH OVER 6 AND LESS THAN 7 YEARS' SERVICE MAY NOT BE PAID THE PAY OF THE THIRD PERIOD UNDER THE ACT OF JUNE 10, 1922, AND THE ACT OF MAY 8, 1926, 44 STAT. 417. WHEN RETIRED, YOU WERE ENTITLED TO THE BASE PAY OF A CAPTAIN UNDER THE ACT OF MAY 11, 1908, $2,400 (WHICH HAPPENS TO BE THE SAME AS THE PAY OF THE THIRD PERIOD), AND THIS BASE PAY AND THE ACCRUING LONGEVITY INCREASE UNDER THE ACT OF MARCH 2, 1903, AND THE ACT OF MAY 11, 1908, IS THE PAY TO WHICH YOU ARE ENTITLED. THE FACT THAT OCCASIONALLY A CAPTAIN WITH OVER 7 YEARS' ACTIVE SERVICE, IF RETIRED AFTER JUNE 30, 1922, FOR WOUNDS RECEIVED IN BATTLE WOULD RECEIVE THE SAME PAY AS YOU RECEIVE UNDER THE ACT OF MAY 11, 1908, IS NO BASIS FOR COMPUTING YOUR LONGEVITY PAY UNDER THE ACT OF 1922 WHEN YOUR BASE PAY CAN NEVER--- UNLESS YOU ARE ASSIGNED TO ACTIVE DUTY--- BE PAID UNDER THE ACT OF 1922.

UPON COMPLETING 15 YEARS' SERVICE INCLUDING TIME ON THE RETIRED LIST YOU BECOME ENTITLED TO A FURTHER 10 PERCENT LONGEVITY INCREASE IN YOUR BASE PAY, OR RETIRED PAY AT THE RATE OF $195 PER MONTH, AND UPON REVIEW THE SETTLEMENT IS MODIFIED FOR COMPUTATION AT THIS RATE.