A-5105, SEPTEMBER 20, 1924, 4 COMP. GEN. 317

A-5105: Sep 20, 1924

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UPON HIS RETIREMENT IS ENTITLED. TO THE PAY AND ALLOWANCES HE WAS RECEIVING AS AN OFFICER ON THE ACTIVE LIST AT THE TIME OF HIS RETIREMENT. PRESENTING FOR DECISION THE FOLLOWING QUESTION: WILL GENERAL JOHN J. WHO WAS APPOINTED PURSUANT TO THE ACT OF SEPTEMBER 3. TO THE PAY AND ALLOWANCES THAT HE IS RECEIVING AS AN OFFICER ON THE ACTIVE LIST AT THE TIME OF RETIREMENT? IT IS UNDERSTOOD THAT GENERAL PERSHING WAS PLACED ON THE RETIRED LIST SEPTEMBER 12. PROVIDES IN PART: THAT THE OFFICE OF GENERAL OF THE ARMIES OF THE UNITED STATES IS HEREBY REVIVED. THE PRESIDENT IS HEREBY AUTHORIZED. THE OFFICER APPOINTED UNDER THE FOREGOING AUTHORIZATION SHALL HAVE THE PAY PRESCRIBED BY SECTION 24 OF THE ACT OF CONGRESS APPROVED JULY 15.

A-5105, SEPTEMBER 20, 1924, 4 COMP. GEN. 317

ARMY PAY - RETIRED GENERAL AN OFFICER APPOINTED GENERAL OF THE ARMIES, PURSUANT TO THE ACT OF SEPTEMBER 3, 1919, 41 STAT. 283, UPON HIS RETIREMENT IS ENTITLED, UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1882, 22 STAT. 118, TO THE PAY AND ALLOWANCES HE WAS RECEIVING AS AN OFFICER ON THE ACTIVE LIST AT THE TIME OF HIS RETIREMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 20, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 8, 1924, PRESENTING FOR DECISION THE FOLLOWING QUESTION:

WILL GENERAL JOHN J. PERSHING, WHO WAS APPOINTED PURSUANT TO THE ACT OF SEPTEMBER 3, 1919 (41 STAT. 283), BE ENTITLED, IN HIS RETIREMENT, TO THE PAY AND ALLOWANCES THAT HE IS RECEIVING AS AN OFFICER ON THE ACTIVE LIST AT THE TIME OF RETIREMENT?

IT IS UNDERSTOOD THAT GENERAL PERSHING WAS PLACED ON THE RETIRED LIST SEPTEMBER 12, 1924. THE ACT OF SEPTEMBER 3, 1919, 41 STAT. 283, PROVIDES IN PART:

THAT THE OFFICE OF GENERAL OF THE ARMIES OF THE UNITED STATES IS HEREBY REVIVED, AND THE PRESIDENT IS HEREBY AUTHORIZED, IN HIS DISCRETION AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO APPOINT TO SAID OFFICE A GENERAL OFFICER OF THE ARMY WHO, ON FOREIGN SOIL AND DURING THE RECENT WAR, HAS BEEN ESPECIALLY DISTINGUISHED IN THE HIGHER COMMAND OF MILITARY FORCES OF THE UNITED STATES; AND THE OFFICER APPOINTED UNDER THE FOREGOING AUTHORIZATION SHALL HAVE THE PAY PRESCRIBED BY SECTION 24 OF THE ACT OF CONGRESS APPROVED JULY 15, 1870, AND SUCH ALLOWANCES AS THE PRESIDENT SHALL DEEM APPROPRIATE; * * * PROVIDED, THAT NO MORE THAN ONE APPOINTMENT TO OFFICE SHALL BE MADE UNDER THE TERMS OF THIS ACT.

SECTION 4 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 760, PROVIDES:

THERE SHALL BE ONE GENERAL, AS NOW AUTHORIZED BY LAW, UNTIL A VACANCY OCCURS IN THAT OFFICE, AFTER WHICH IT SHALL CEASE TO EXIST.

SUCH DIFFICULTY AS EXISTS RESULTS FROM THE FACT THAT THE ACT OF 1919 REVIVED THE OFFICE OF ,GENERAL OF THE ARMIES OF THE UNITED STATES," WHILE THE OFFICE IN EXISTENCE WHEN THE ACT OF 1882, HEREAFTER REFERRED TO, WAS PASSED WAS THAT OF "GENERAL OF THE ARMY OF THE UNITED STATES" (SEC. 1095, REVISED STATUTES, AND ACT OF JULY 25, 1866, 14 STAT. 223); AND THE FACT THAT SECTION 1274, REVISED STATUTES, LIMITS THE PAY OF OFFICERS RETIRED FROM ACTIVE SERVICE TO 75 PERCENT OF THE PAY OF THE RANK UPON WHICH THEY ARE RETIRED, WHILE THE ACT OF JUNE 30, 1882, 22 STAT. 118, CONTAINS A PROVISO:

THAT THE GENERAL OF THE ARMY, WHEN RETIRED, SHALL BE RETIRED WITHOUT REDUCTION IN HIS CURRENT PAY AND ALLOWANCES; * * *.

THE ACT OF 1919 REVIVED AN OFFICE WHICH HAD EXISTED AT SOME TIME IN THE PAST AND WHICH HAD LAPSED EITHER BY REPEAL OF THE LAW CREATING IT OR BY PROHIBITION AGAINST FILLING IT. SECTION 1094 OF THE REVISED STATUTES PROVIDES THAT THE ARMY OF THE UNITED STATES SHALL INCLUDE "ONE GENERAL," WITH A PROVISO, EVIDENTLY BASED ON THE PROVISION CONTAINED IN THE ACT OF JULY 15, 1870, 16 STAT. 318:

THAT WHEN A VACANCY OCCURS IN THE OFFICE OF GENERAL OR LIEUTENANT GENERAL SUCH OFFICE SHALL CEASE, AND ALL ENACTMENTS CREATING OR REGULATING SUCH OFFICES SHALL, RESPECTIVELY, BE HELD TO BE REPEALED.

THE OFFICE WAS, HOWEVER, CONTINUED IN EXISTENCE, OR IN EFFECT REVIVED, FOR GEN. P. H. SHERIDAN BY THE ACT OF JUNE 1, 1888, 25 STAT. 165, AND LAPSED WITH HIS DEATH AUGUST 5, 1888. AFTER THE OFFICE WAS REVIVED IN 1866 AND BEFORE THE LIMITATION UPON FILLING A VACANCY WAS ENACTED IN 1870, GEN. WILLIAM T. SHERMAN HAD SUCCEEDED TO THE OFFICE VACATED BY GENERAL GRANT ON HIS ELEVATION TO THE PRESIDENCY.

THE ACT OF JULY 25, 1866, 14 STAT. 223, PROVIDED:

THAT THE GRADE OF "GENERAL OF THE ARMY OF THE UNITED STATES" BE, AND THE SAME IS HEREBY, REVIVED; * * *.

SECTION 9 OF THE ACT OF MARCH 3, 1799, 1 STAT. 752, PROVIDED:

THAT A COMMANDER OF THE ARMY OF THE UNITED STATES SHALL BE APPOINTED AND COMMISSIONED BY THE STYLE OF "GENERAL OF THE ARMIES OF THE UNITED STATES," AND THE PRESENT OFFICE AND TITLE OF LIEUTENANT-GENERAL SHALL THEREAFTER BE ABOLISHED.

IT THUS APPEARS THAT THE OFFICE OF GENERAL WAS FIRST CREATED IN 1799 BY THE TITLE OF "GENERAL OF THE ARMIES OF THE UNITED STATES; " THAT IT WAS REVIVED IN 1866 AS "GENERAL OF THE ARMY OF THE UNITED STATES; " AND THAT IT WAS AGAIN REVIVED IN 1919 BY THE TITLE OF "GENERAL OF THE ARMIES OF THE UNITED STATES.' THAT IT IS ONE AND THE SAME OFFICE, THAT OF GENERAL, IS UNQUESTIONED. WHETHER THE PLURAL WAS USED IN 1799 BECAUSE OF THE PROSPECTS OF WAR WITH ARMIES OPERATING IN SEVERAL THEATERS, THE SINGULAR IN 1866 AFTER THE CLOSE OF THE CIVIL WAR AND WITH A VIEW TO A SMALL REGULAR ARMY OPERATING IN TIME OF PEACE IN THE CONTINENTAL LIMITS OF THE UNITED STATES, AND THE PLURAL IN 1919 BECAUSE OF THE TECHNICAL STATE OF WAR, THE EXPENSION OF THE REGULAR ARMY, AND THE EXISTENCE OF UNITS THEREOF AT FAR DISTANT STATIONS BEYOND THE LIMITS OF THE UNITED STATES, IT WOULD BE FRUITLESS TO INQUIRE. THE OFFICE OF GENERAL WAS REVIVED, SPECIFICALLY THE PAY THERETOFORE AUTHORIZED FOR THE GENERAL OF THE ARMY BY THE ACT OF 1870 WAS FIXED AS THE PAY OF THE REVIVED OFFICE, AND, EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED, ALL OTHER ATTRIBUTES OF THE OFFICE OF GENERAL ATTACH TO THE REVIVED OFFICE. THE PROVISION FOR ALLOWANCES WAS A MODIFICATION OF THE PRIOR LAWS APPLICABLE TO THE OFFICE OF GENERAL, AND THE REFERENCE TO THE PAY FIXED BY THE ACT OF 1870 WAS PROBABLY THOUGHT NECESSARY TO COMPLETELY FIX THE EMOLUMENTS OF THE REVIVED OFFICE AND WAS NOT A FIXING OF THE PAY PROPER OF A NEW AND DIFFERENT OFFICE. IT SHOULD BE OBSERVED THAT CONGRESS WAS PROVIDING A REWARD FOR EXCEPTIONALLY MERITORIOUS SERVICE, AND THE DESIGN WAS TO SO SPECIFICALLY FIX THE EMOLUMENTS THAT THE MATTER COULD NOT BECOME ONE OF EMBARRASSMENT TO THE RECIPIENT BECAUSE OF DOUBT AS TO WHAT WAS INTENDED TO BE PROVIDED.

IN THE MATTER OF AIDS TO THE GENERAL, IT HAS BEEN HELD HE WAS ENTITLED TO THE NUMBER PRESCRIBED FOR THE GENERAL OF THE ARMY, 27 COMP. DEC. 275 AND 280. ANY OTHER ATTRIBUTE, RIGHT, PRIVILEGE, ETC., OF THE OFFICE NOT SPECIFICALLY MODIFIED WOULD NECESSARILY ALSO APPLY TO THE OFFICE, INCLUDING THE ACT OF 1882. THE ACT OF 1882 FIRST ESTABLISHED THE COMPULSORY RETIREMENT OF OFFICERS AT THE AGE OF 64, AND THE PROVISO HERE CONSIDERED WAS A PART OF THAT PROVISION, EVIDENCING A PURPOSE TO PROVIDE FOR THE OFFICE HOLDING THE TITLE OF GENERAL OTHERWISE THAN UNDER SECTION 1274, REVISED STATUTES. THE ACT OF 1882 WAS APPLICABLE TO GENERAL SHERMAN UPON HIS RETIREMENT IN 1884. GENERAL SHERIDAN DIED BEFORE REACHING THE AGE FOR RETIREMENT, AND GENERAL GRANT AFTER THE EXPIRATION OF HIS TERMS AS PRESIDENT WAS REAPPOINTED TO THE RETIRED LIST UNDER THE ACT OF MARCH 3, 1885, 23 STAT. 434, AUTHORIZING THE APPOINTMENT ON THE RETIRED LIST OF THE ARMY OF ONE PERSON HAVING THE QUALIFICATIONS INDICATED "WITH THE RANK AND FULL PAY OF SUCH GENERAL, OR GENERAL-IN-CHIEF.' OF THE THREE OFFICERS WHO, PRIOR TO 1919, HELD THE PERMANENT TITLE OF GENERAL, BUT ONE REACHED THE RETIRED LIST UPON RETIREMENT FOR AGE, AND HE RECEIVED THE BENEFITS OF THE 1882 ACT. ANOTHER WAS PLACED UPON THE RETIRED LIST BY A SPECIAL ACT AND WITH A SPECIAL PAY, TO WIT, FULL PAY OF GENERAL. SO FAR AS A POLICY OF CONGRESS CAN BE GLEANED FROM THE LIMITED OCCASIONS ARISING, THAT POLICY WOULD SEEM TO BE THAT THE GENERAL WHEN RETIRED SHALL SUFFER NO REDUCTION OF EMOLUMENTS.

ANSWERING YOUR QUESTION SPECIFICALLY, I AM OF OPINION THAT UNDER THE ACT OF 1882 GEN. JOHN J. PERSHING WILL BE ENTITLED IN HIS RETIREMENT TO THE PAY AND ALLOWANCES HE WAS RECEIVING AS AN OFFICER ON THE ACTIVE LIST AT THE TIME OF RETIREMENT.