A-57101, AUGUST 23, 1934, 14 COMP. GEN. 152

A-57101: Aug 23, 1934

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OFFICERS OF THE ARMY ARE NOT ENTITLED. THIS OFFICER'S SERVICE IS AS FOLLOWS: (FEDERAL: PVT. THE CLAIMANT WILL BE PAID FOR THE MONTH OF JULY 1934 AS FOLLOWS: CHART BASE AND LONG/PAY . THIS VOUCHER IS FOR DIFFERENCE IN PAY FOR OVER 21 YEARS' SERVICE AND 18 YEARS' SERVICE FOR LONGEVITY PAY HE CLAIMS IS DUE UNDER YOUR DECISION A -55877 JUNE 29. WAS SERVING AS A CAPTAIN WITH OVER 18 YEARS' AND LESS THAN 21 YEARS' SERVICE. HE WAS ENTITLED TO BASE PAY OF $3. PAY PERIODS ARE PRESCRIBED. THE BASE PAY FOR EACH IS FIXED AS FOLLOWS: * * * THE FOURTH PERIOD. OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE. EXCEPT THOSE WHOSE PROMOTION IS LIMITED BY LAW TO THIS GRADE AND WHO ARE NOT ENTITLED UNDER EXISTING LAW TO THE PAY AND ALLOWANCES OF A HIGHER GRADE.

A-57101, AUGUST 23, 1934, 14 COMP. GEN. 152

PAY - LONGEVITY - ARMY OFFICERS - ECONOMY ACT, AS AMENDED UNDER SECTION 201 OF THE ECONOMY ACT, AS AMENDED AND CONTINUED IN FORCE DURING THE FISCAL YEAR 1935 BY SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 523, OFFICERS OF THE ARMY ARE NOT ENTITLED, DURING THE FISCAL YEAR 1935, TO COUNT FOR PURPOSES OF LONGEVITY PAY SERVICE SUBSEQUENT TO JUNE 30, 1932; THE ACT OF JUNE 27, 1934, 48 STAT. 1265, BEING APPLICABLE ONLY TO SERVICE ENTITLING TO A PROMOTION IN GRADE.

COMPTROLLER GENERAL MCCARL TO CAPTAIN H. S. FARISH, UNITED STATES ARMY, AUGUST 23, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 31, 1934, AS FOLLOWS:

1. THERE HAS BEEN PRESENTED TO THE UNDERSIGNED DISBURSING OFFICER VOUCHER ATTACHED FOR PAYMENT UPON MATURITY.

2. THIS OFFICER'S SERVICE IS AS FOLLOWS:

(FEDERAL: PVT. U.S. MARINE CORPS 20 NOV. 99 TO 22 OCT. 00; LANDSMAN U.S. NAVY 23 OCT. 00; YEOMAN 3D CL. 1 FEB. 01; YEOMAN 2 CL. 1 FEB. 02; YEOMAN 1 CL. 1 FEB. 03; CHIEF YEOMAN 1 FEB. 04 TO 1 FEB. 04; PAY CLERK U.S. NAVY 2 FEB. 04 TO 24 SEPT. 04 AND FROM 27 SEPT. 04 TO 22 AUG. 05/ -- PVT. CO. C 4TH VA.VOL.INF. 18 MAY 98 TO 27 APRIL 99; CAPT. ENGR. SEC. O.R.C. 5 JUNE 18; ACCEPTED 5 JUNE 18; ACTIVE DUTY 10 JUNE 18; VACATED 17 SEPT. 20--- CAPT. F.D. 1 JULY 20; ACCEPTED 17 SEPT. 20; (B) 1 LT. (NOV. 18, 22); CAPT. 28 MAY 25.

3. THE CLAIMANT WILL BE PAID FOR THE MONTH OF JULY 1934 AS FOLLOWS:

CHART

BASE AND LONG/PAY --------------------------------------- $325.00

SUB. ALLOWANCE ------------------------------------------ 53.01

TOTAL CREDITS ------------------------------------- 378.01

DEBITS:

CLASS E ALLOT -------------------------------- $7.21

ACT 3-28-34 ---------------------------------- 16.25

--------- 23.46

NET BALANCE PAID --------------------------------- 354.55

4. THIS VOUCHER IS FOR DIFFERENCE IN PAY FOR OVER 21 YEARS' SERVICE AND 18 YEARS' SERVICE FOR LONGEVITY PAY HE CLAIMS IS DUE UNDER YOUR DECISION A -55877 JUNE 29, 1934.

5. ADVANCE DECISION REQUESTED AS TO LEGALITY OF PAYMENT.

THE RECORD OF SERVICE CONTAINED IN YOUR SUBMISSION SHOWS THAT THE OFFICER ON JUNE 30, 1932, WAS SERVING AS A CAPTAIN WITH OVER 18 YEARS' AND LESS THAN 21 YEARS' SERVICE. ON JUNE 30, 1932, HE WAS ENTITLED TO BASE PAY OF $3,000 PER ANNUM AS AN OFFICER ENTITLED TO THE PAY OF THE FOURTH PERIOD INCREASED BY 30 PERCENTUM.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, PROVIDES, IN PART:

THAT, BEGINNING JULY 1, 1922, FOR THE PURPOSE OF COMPUTING THE ANNUAL PAY OF THE COMMISSIONED OFFICERS OF THE REGULAR ARMY AND MARINE CORPS BELOW THE GRADE OF BRIGADIER GENERAL, OF THE NAVY BELOW THE GRADE OF REAR ADMIRAL, OF THE COAST GUARD, OF THE COAST AND GEODETIC SURVEY, AND OF THE PUBLIC HEALTH SERVICE BELOW THE GRADE OF SURGEON GENERAL, PAY PERIODS ARE PRESCRIBED, AND THE BASE PAY FOR EACH IS FIXED AS FOLLOWS: * * * THE FOURTH PERIOD, $3,000; * * *.

THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO * * * CAPTAINS OF THE ARMY, LIEUTENANTS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE, EXCEPT THOSE WHOSE PROMOTION IS LIMITED BY LAW TO THIS GRADE AND WHO ARE NOT ENTITLED UNDER EXISTING LAW TO THE PAY AND ALLOWANCES OF A HIGHER GRADE; * * *.

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS; * * *.

ACCORDING TO THE RECORD CONTAINED IN YOUR SUBMISSION, 21 YEARS' SERVICE HAD BEEN COMPLETED SUBSEQUENT TO JUNE 30, 1932, AND PRIOR TO JULY 1, 1934, AND THE VOUCHER COVERS 5 PERCENT ADDITIONAL BASE PAY OF THE FOURTH PERIOD UNDER SECTION 1 OF THE 1922 ACT, LAST ABOVE QUOTED, AND REQUIRES THE CONSIDERATION OF STATUTES IN PARI MATERIA WITH SECTION 201 OF THE ECONOMY ACT.

SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932 (THE LEGISLATIVE APPROPRIATION ACT FOR THE FISCAL YEAR 1933), 47 STAT. 403, PROVIDED:

ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.

THE PROVISIONS OF THIS LAW WERE CONTINUED FOR THE FISCAL YEAR 1934, BY SECTION 4 (A), TITLE II, OF THE ACT OF MARCH 20, 1933, 48 STAT. 13. SECTION 24 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935, ACT OF MARCH 28, 1934, PROVIDED:

TITLE II OF THE ACT ENTITLED "AN ACT TO MAINTAIN THE CREDIT OF THE UNITED STATES GOVERNMENT," APPROVED MARCH 20, 1933, IS AMENDED BY INSERTING AT THE END THEREOF THE FOLLOWING:

"SEC. 10. (A) THE FOLLOWING SECTIONS, AS AMENDED, OF PART II OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, ARE HEREBY CONTINUED IN FULL FORCE AND EFFECT DURING THE FISCAL YEAR ENDING JUNE 30, 1935; SECTIONS 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) * * *

"/D) FOR THE PURPOSE OF CONTINUING THE SECTIONS ENUMERATED IN SUBSECTIONS (A), (B), AND (C) OF THIS SECTION, IN THE APPLICATION OF SUCH SECTIONS WITH RESPECT TO THE FISCAL YEAR ENDING JUNE 30, 1935: THE FIGURES "1933" SHALL BE READ AS "1935": * * *

"/E)IN THE APPLICATION OF THE SECTIONS ENUMERATED IN SUBSECTIONS (A), (B), AND (C) OF THIS SECTION WITH RESPECT TO THE FISCAL YEAR ENDING JUNE 30, 1935 (BUT NOT WITH RESPECT TO THE FISCAL YEAR ENDING JUNE 30, 1934), THE FOLLOWING AMENDMENTS SHALL APPLY:

"/1) SECTION 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) OF PART II OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, IS AMENDED BY INSERTING AT THE END THEREOF THE FOLLOWING: "THIS SECTION SHALL NOT APPLY DURING THE FISCAL YEAR ENDING JUNE 30, 1935, EXCEPT TO THE EXTENT THAT IT SUSPENDS THE LONGEVITY INCREASES PROVIDED FOR IN THE TENTH PROGRAM OF SECTION 1 OF THE PAY ADJUSTMENT ACT OF 1922. THIS AMENDMENT SHALL NOT AUTHORIZE THE PAYMENT OF BACK COMPENSATION.'"

SECTION 201 OF THE ECONOMY ACT AS THUS CONTINUED IN EFFECT DURING THE FISCAL YEAR 1935, WAS AMENDED TO READ AS FOLLOWS:

ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1935; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932. THIS SECTION SHALL NOT APPLY DURING THE FISCAL YEAR ENDING JUNE 30, 1935, EXCEPT TO THE EXTENT THAT IT SUSPENDS THE LONGEVITY INCREASES PROVIDED FOR IN THE TENTH PARAGRAPH OF SECTION 1 OF THE PAY ADJUSTMENT ACT OF 1922. THIS AMENDMENT SHALL NOT AUTHORIZE THE PAYMENT OF BACK COMPENSATION.

IN DECISION A-55507, DATED MAY 24, 1934, IT WAS HELD, IN EFFECT, THAT THE AMENDMENT OF MARCH 28, 1934, WHILE RESTORING AUTOMATIC INCREASES IN COMPENSATION TO CERTAIN POSTAL EMPLOYEES ON AND AFTER JULY 1, 1934, FOR THE FISCAL YEAR 1935, DID NOT AUTHORIZE OR PERMIT INCLUDING SERVICE PERFORMED SUBSEQUENT TO JULY 1, 1932, OR PRIOR TO JULY 1, 1934, FOR THE REASON SECTION 201 OF THE ECONOMY ACT, AS ORIGINALLY ENACTED AND CONTINUED IN FORCE, AS THE LANGUAGE LAST ABOVE QUOTED PLAINLY INDICATES, SUSPENDED THE OPERATION OF ALL STATUTES AUTHORIZING AUTOMATIC INCREASES IN COMPENSATION---

* * * HENCE, NOT ONLY WAS THE GRANTING OF THE AUTOMATIC INCREASE IN COMPENSATION PROHIBITED, BUT ALSO NO SERVICE DURING THAT PERIOD MAY BE INCLUDED IN COMPUTING LONGEVITY TO DETERMINE EITHER THE AMOUNT OR THE EFFECTIVE DATE OF AN AUTOMATIC INCREASE IN COMPENSATION, AS BOTH WOULD NECESSARILY BE BASED UPON A STATUTE NOT OPERATIVE DURING SUCH PERIOD. * *

THE DECISION A-55877, DATED JUNE 29, 1934, CITED IN YOUR SUBMISSION, CONSIDERED THE EFFECT OF THE SUBSEQUENT ACT OF JUNE 27, 1934, PUBLIC 480, 48 STAT. 1265, AND IT WAS CONCLUDED IN VIEW OF THE LANGUAGE USED THEREIN THAT SUCH SERVICE RENDERED DURING THE FISCAL YEARS 1933 AND 1934 PROPERLY MAY BE INCLUDED FOR PURPOSE OF DETERMINING THE GRADE TO WHICH EMPLOYEES MAY PROGRESS FROM AND AFTER JULY 1, 1934, BUT THERE IS NOTHING IN THE LANGUAGE OF THE ACT OF JUNE 27, 1934, EITHER EXPRESSLY OR IMPLIEDLY, GRANTING LONGEVITY INCREASES OF PAY TO OFFICERS OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT OF JUNE 10, 1922, BY REASON OF ANY SERVICE PERFORMED SUBSEQUENT TO JULY 1, 1932.

SECTION 1 OF THE ACT OF JUNE 27, 1934, 48 STAT. 1265, PROVIDES:

THAT IN THE ADMINISTRATION OF THE PROVISION OF SUBPARAGRAPH (1) OF SECTION 24 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, AMENDING SECTION 201 OF PART II OF THE LEGISLATIVE APPROPRIATION ACT FOR THE FISCAL YEAR 1933, ALL SERVICE RENDERED BY POSTAL AND OTHER OFFICERS AND EMPLOYEES PRIOR TO JULY 1, 1932, AND SUBSEQUENT TO JUNE 30, 1932, SHALL BE CREDITED TO THE OFFICERS OR EMPLOYEES AND SUCH OFFICERS OR EMPLOYEES PROMOTED TO THE GRADE TO WHICH THEY WOULD HAVE PROGRESSED HAD SECTION 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) OF PART II OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, NOT BEEN ENACTED.

THIS ACT DID NOT, IN TERMS NOR BY NECESSARY IMPLICATION, REPEAL SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, AS EXTENDED FOR THE FISCAL YEAR 1935. HAD THERE BEEN ANY SUCH INTENTION ON THE PART OF THE CONGRESS, SUCH INTENTION UNDOUBTEDLY WOULD HAVE BEEN COUCHED IN CLEAR AND COGENT TERMS. THE ANTECEDENT ACT OF MARCH 28, 1934, SPECIFICALLY REFERRED TO IN THE ACT OF JUNE 27, 1934, PROVIDED THAT SECTION 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) IS HEREBY CONTINUED IN FULL FORCE AND EFFECT DURING THE FISCAL YEAR ENDING JUNE 30, 1935, AND IN THE SAME SECTION PROVISION WAS MADE, AS QUOTED FROM SECTION 24, SUBPARAGRAPH (1), AS FOLLOWS:

SECTION 201 (SUSPENDING AUTOMATIC INCREASES IN COMPENSATION) OF PART II OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, IS AMENDED BY INSERTING AT THE END THEREOF THE FOLLOWING: ,THIS SECTION SHALL NOT APPLY DURING THE FISCAL YEAR ENDING JUNE 30, 1935, EXCEPT TO THE EXTENT THAT IT SUSPENDS THE LONGEVITY INCREASES PROVIDED FOR IN THE TENTH PARAGRAPH OF SECTION 1 OF THE PAY ADJUSTMENT ACT OF 1922. THIS AMENDMENT SHALL NOT AUTHORIZE THE PAYMENT OF BACK COMPENSATION.'

IT IS CLEAR THAT BY THE ACT OF JUNE 27, 1934, CONGRESS DID NOT INTEND TO REPEAL THE QUOTED PROVISION OF THE ACT OF MARCH 28, 1934. THERE IS NO INCONSISTENCY BETWEEN THE TWO ACTS, MERELY A CLARIFICATION WHICH, THROUGH LEGISLATIVE INTERPRETATION, AUTHORIZES IN THE ADMINISTRATION OF PARAGRAPH 24 (1) OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935 THE CREDITING OF ALL SERVICE RENDERED BY OFFICERS AND EMPLOYEES BETWEEN JULY 1, 1932, AND JUNE 30, 1934, FOR PROMOTION PURPOSES TO THE GRADE TO WHICH THEY WOULD HAVE PROGRESSED HAD SECTION 201 OF THE ECONOMY ACT NOT BEEN ENACTED, AND TO THIS EXTENT ONLY AMENDED THE PROVISO OF SECTION 24 (1) OF THE ACT OF MARCH 28, 1934, UNDER WHICH SUCH SERVICE WAS NOT PERMITTED TO BE COUNTED FOR EITHER LONGEVITY PURPOSES OR FOR PROGRESSION IN GRADE. SEE A-55507, DATED MAY 24, 1934.

UNDER THE ACT OF JUNE 10, 1922, YOU WERE ENTITLED ON JULY 1, 1932, AS A CAPTAIN WITH OVER 18 YEARS' SERVICE, TO PAY OF THE FOURTH PAY PERIOD INCREASED BY 30 PERCENTUM FOR LONGEVITY, OR $325 PER MONTH, AND THIS AMOUNT ADMITTEDLY HAS BEEN RECEIVED. UNDER THE PROVISIONS OF SECTION 201 OF THE ECONOMY ACT, AS AMENDED BY SECTION 24 (1) OF THE ACT OF MARCH 28, 1934, SUSPENSION OF LONGEVITY INCREASES TO OFFICERS OF THE SERVICES MENTIONED IN THE ACT OF JUNE 10, 1922, WERE EXTENDED AND CONTINUED DURING THE FISCAL YEAR 1935. UNDER THE PLAIN TERMS OF SECTION 201 OF THE ECONOMY ACT AS AMENDED, NO SERVICE PERFORMED SUBSEQUENT TO JUNE 30, 1932, MAY BE CREDITED TO THESE OFFICERS FOR THE PURPOSE OF ADDITIONAL PAY PROVIDED FOR IN THE TENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922. PAYMENT OF THE VOUCHER IS NOT AUTHORIZED.