A-67411, NOVEMBER 22, 1935, 15 COMP. GEN. 436

A-67411: Nov 22, 1935

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WHO IS FIRST APPOINTED IN THE REGULAR ARMY IN THE GRADE OF SECOND LIEUTENANT. WHO IS ASSIGNED TO DUTY UNDER SECTION 3 OF THE ACT OF JULY 2. IS ENTITLED TO THE PAY OF THE FOURTH AND NOT THE FIFTH PERIOD. 1935: THERE IS FOR CONSIDERATION THE CORRECTNESS OF SETTLEMENT ALLOWING THE CLAIM OF LIEUTENANT COLONEL (T.). WERE CONSIDERED IN DECISION A-61698. WHEREIN IT WAS STATED: * * * THE BASE PAY OF LIEUTENANT COLONEL MAY BE IN ANY ONE OF THREE PAY PERIODS. AN OFFICER HOLDING THE RANK OF LIEUTENANT COLONEL IS ENTITLED TO BASE PAY OF THE SIXTH PERIOD IF HE HAS COMPLETED THIRTY YEARS' SERVICE. (2) IF HIS FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO CAPTAIN IN THE ARMY.

A-67411, NOVEMBER 22, 1935, 15 COMP. GEN. 436

PAY - PERIOD - ARMY AIR CORPS OFFICER - TEMPORARY RANK A CAPTAIN OF THE AIR CORPS OF THE REGULAR ARMY, WITH LESS THAN 20 YEARS' SERVICE, WHO IS FIRST APPOINTED IN THE REGULAR ARMY IN THE GRADE OF SECOND LIEUTENANT, BUT NOT APPOINTED UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 41 STAT. 771, AND WHO IS ASSIGNED TO DUTY UNDER SECTION 3 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, WITH TEMPORARY INCREASED RANK OF LIEUTENANT COLONEL, IS ENTITLED TO THE PAY OF THE FOURTH AND NOT THE FIFTH PERIOD.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 22, 1935:

THERE IS FOR CONSIDERATION THE CORRECTNESS OF SETTLEMENT ALLOWING THE CLAIM OF LIEUTENANT COLONEL (T.) ROMEYN B. HOUGH, JR., AIR CORPS, UNITED STATES ARMY, FOR DIFFERENCE BETWEEN PAY OF THE FOURTH PERIOD AND FIFTH PERIOD, FROM MARCH 2 TO 31, 1935, WHILE ASSIGNED TO DUTY AS CHIEF, INDUSTRIAL WAR PLANS SECTION, MATERIAL DIVISION, AIR CORPS, WRIGHT FIELD, OHIO, WITH TEMPORARY INCREASED RANK FROM CAPTAIN TO LIEUTENANT COLONEL, UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, BY CLAIMS SETTLEMENT NO. 0380356, CERTIFICATE NO. 0376791, DATED OCTOBER 18, 1935, IN THE AMOUNT OF $68.87.

THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 2, 1926, AUTHORIZING THE SECRETARY OF WAR TO ASSIGN OFFICERS OF THE AIR CORPS TO FLYING COMMANDS WITH TEMPORARY INCREASED RANK INCLUDING PAY AND ALLOWANCES APPROPRIATE TO SUCH RANK, WERE CONSIDERED IN DECISION A-61698, MAY 13, 1935, 14 COMP. GEN. 828, WHEREIN IT WAS STATED:

* * * THE BASE PAY OF LIEUTENANT COLONEL MAY BE IN ANY ONE OF THREE PAY PERIODS, NOT BASED ON ANY STANDARD OF EFFICIENCY, BUT BY REASON OF LENGTH OF SERVICE OR CIRCUMSTANCES OF ENTERING THE SERVICE. AN OFFICER HOLDING THE RANK OF LIEUTENANT COLONEL IS ENTITLED TO BASE PAY OF THE SIXTH PERIOD IF HE HAS COMPLETED THIRTY YEARS' SERVICE; TO PAY OF THE FIFTH PERIOD (1) IF HE HAS COMPLETED TWENTY YEARS' SERVICE, (2) IF HIS FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO CAPTAIN IN THE ARMY, OR (3) IF APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT; AND TO PAY OF THE FOURTH PERIOD IF NOT WITHIN THE CONDITIONS PRESCRIBED FOR THE FIFTH OR SIXTH PERIOD. * * *

THE MILITARY SERVICES OF LIEUTENANT COLONEL HOUGH ARE SHOWN BY THE OFFICIAL ARMY REGISTER, 1935, TO BE AS FOLLOWS:

2 LT.INF.SEC. O.R.C. 15 AUG. 17; ACCEPTED 15 AUG. 17; ACTIVE DUTY 15 AUG. 17; VACATED 14 NOV. 17--- 2 LT. OF INF. 26 OCT. 17; ACCEPTED 14 NOV. 17; 1 LT. (TEMP.) 17 JUNE 18; A.S. 19 SEPT. 18; 1 LT. 6 SEPT. 19; TRFD. TO A.S. 1 JULY 20; CAPT. 1 JULY 20.

THIS RECORD SHOWS THAT THE OFFICER'S FIRST APPOINTMENT IN THE REGULAR ARMY WAS IN THE GRADE OF SECOND LIEUTENANT ON OCTOBER 26, 1917, AND THAT HE HAS COMPLETED LESS THAN 20 YEARS' SERVICE. HE IS NOT WITHIN ANY OF THE PROVISIONS ENTITLING TO PAY OF THE SIXTH OR FIFTH PERIODS, MAKING APPLICABLE IN HIS CASE THE BASE PAY PRESCRIBED FOR THE FOURTH PERIOD.

REFERENCE WAS MADE TO SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS ENTITLING LIEUTENANT COLONELS TO PAY OF THE FIFTH PERIOD. IT IS ALSO ASSERTED THAT PAY OF THE GRADE OF LIEUTENANT COLONEL UNDER THE ACT OF MAY 11, 1908, IS AN AMOUNT EQUAL TO THE BASE PAY OF THE FIFTH PERIOD UNDER THE 1922 STATUTE. SECTION 3 OF THE 1922 STATUTE COVERS THE PAY OF OFFICERS OF THE NATIONAL GUARD AND RESERVE OFFICERS AUTHORIZED TO RECEIVE FEDERAL PAY. FURTHERMORE, PARAGRAPH 9 OF SECTION 1 OF THE SAME ACT PROVIDES THAT DURING THE EXISTENCE OF A STATE OF WAR LIEUTENANT COLONELS HOLDING EITHER PERMANENT OR TEMPORARY COMMISSIONS SHALL RECEIVE THE PAY OF THE FIFTH PERIOD UNLESS ENTITLED TO THE PAY OF A HIGHER PERIOD. NEITHER OF THESE PROVISIONS IS APPLICABLE IN THE CASE OF THIS OFFICER. PARAGRAPH 5 OF SECTION 1 OF SUCH LAW COVERS HIS CASE AND THIS OFFICE MUST NECESSARILY APPLY THE LAW AS ENACTED BY THE CONGRESS. THE FACT SOME OTHER LIEUTENANT COLONEL UNDER DIFFERENT SERVICE CONDITIONS IS ENTITLED UNDER THE LAW TO A DIFFERENT RATE OF PAY IS NO BASIS FOR ALLOWING THIS OFFICER ANY AMOUNT IN EXCESS OF THAT SPECIFICALLY PRESCRIBED FOR HIS SERVICE. THE 1908 STATUTE PROVIDED ONLY ONE RATE OF PAY FOR A LIEUTENANT COLONEL, $3,500, AND LIMITED THE PAY INCLUSIVE OF LONGEVITY TO $4,500, WHILE THE ACT OF 1922 PROVIDES THREE RATES OF BASE PAY, I.E., $3,000, $3,500, AND $4,000, AND PERMITS LONGEVITY INCREASE UP TO 50 PERCENT THEREOF EXCEPT AS OTHERWISE LIMITED. THE LATTER ACT HAS SUPERSEDED THE FORMER ACT AND THE RATE OF PAY AUTHORIZED TO BE PAID TO A PARTICULAR OFFICER IS DETERMINED BY THE CONDITIONS OF HIS SERVICES.

THE ONLY PAY TO WHICH LIEUTENANT COLONEL HOUGH IS ENTITLED IS THAT PRESCRIBED BY PARAGRAPH 5 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, WHICH, FOR HIS SERVICES, IS FOURTH-PERIOD PAY. THE SETTLEMENT ALLOWING FIFTH- PERIOD PAY IS ERRONEOUS, AND IS REVISED UPON MY OWN MOTION. THE AMOUNT OF $68.87 THEREIN ALLOWED IS DISALLOWED, AND THE AMOUNT CERTIFIED DUE THE UNITED STATES.