A-75890, AUGUST 1, 1939, 19 COMP. GEN. 129

A-75890: Aug 1, 1939

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IS BINDING ON THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF THE ACCOUNT CONTAINING THE DISBURSEMENT. MUST BE DENIED INSOFAR AS CONCERNS PAYMENTS WHICH HAVE BEEN MADE UNDER AUTHORITY OF THE SAID DECISION. WHO ATTAIN THE GRADES OF LIEUTENANT COLONEL AND COLONEL ARE ENTITLED TO THE PAY OF THE FIFTH AND SIXTH PERIODS. AS FOLLOWS: REFERENCE IS MADE TO YOUR MANUSCRIPT DECISION. WHEREIN IT WAS HELD THAT LIEUTENANT COLONEL FRANK H. WHO WAS APPOINTED TO THAT GRADE SEPTEMBER 28. WHOSE ORIGINAL APPOINTMENT IN THE REGULAR ARMY WAS IN THE GRADE OF CAPTAIN AND WHOSE PROMOTION TO THE GRADE OF LIEUTENANT COLONEL WAS EFFECTIVE PRIOR TO THE COMPLETION OF TWENTY YEARS' SERVICE. IS ENTITLED TO THE PAY OF THE FIFTH PAY PERIOD UNDER THE PROVISIONS OF PARAGRAPH 4.

A-75890, AUGUST 1, 1939, 19 COMP. GEN. 129

DECISIONS - GENERAL ACCOUNTING OFFICE - BINDING EFFECT; PAY - PERIODS - WORLD WAR EMERGENCY OFFICERS APPOINTED TO REGULAR ARMY A DECISION RENDERED PURSUANT TO REQUEST OF A DISBURSING OFFICER UNDER SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 207, AND ON A FULL CONSIDERATION OF ALL OF THE FACTS OF A CASE, IS BINDING ON THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF THE ACCOUNT CONTAINING THE DISBURSEMENT, AND A REQUEST FOR RECONSIDERATION THEREOF, SOLELY ON THE LEGAL QUESTION INVOLVED, MUST BE DENIED INSOFAR AS CONCERNS PAYMENTS WHICH HAVE BEEN MADE UNDER AUTHORITY OF THE SAID DECISION. WORLD WAR EMERGENCY OFFICERS OF THE MEDICAL DEPARTMENT AND CHAPLAIN CORPS APPOINTED TO THE REGULAR ARMY IN A GRADE BELOW THAT OF MAJOR UNDER THE ACT OF JUNE 4, 1920, AND WHO ATTAIN THE GRADES OF LIEUTENANT COLONEL AND COLONEL ARE ENTITLED TO THE PAY OF THE FIFTH AND SIXTH PERIODS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 1, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 7, 1938, FILE G 4/29450- 15, AS FOLLOWS:

REFERENCE IS MADE TO YOUR MANUSCRIPT DECISION, A-75890, AUGUST 30, 1937, ADDRESSED TO THE CHIEF OF FINANCE, U.S. ARMY, WHEREIN IT WAS HELD THAT LIEUTENANT COLONEL FRANK H. HAYES, CHAPLAIN, WHO WAS APPOINTED TO THAT GRADE SEPTEMBER 28, 1935, AND WHOSE ORIGINAL APPOINTMENT IN THE REGULAR ARMY WAS IN THE GRADE OF CAPTAIN AND WHOSE PROMOTION TO THE GRADE OF LIEUTENANT COLONEL WAS EFFECTIVE PRIOR TO THE COMPLETION OF TWENTY YEARS' SERVICE, IS ENTITLED TO THE PAY OF THE FIFTH PAY PERIOD UNDER THE PROVISIONS OF PARAGRAPH 4, SECTION 1, OF THE PAY READJUSTMENT ACT OF 1922 (42 STAT. 625; U.S.C. 37:1-31). THIS DECISION IS APPLICABLE TO MEDICAL, DENTAL AND VETERINARY OFFICERS AS WELL AS TO CHAPLAINS.

THE CONSTRUCTION OF THE PERTINENT STATUTES INVOLVED IN THE DECISION MATERIALLY DIFFERS FROM THE CONSTRUCTION WHICH HAS BEEN CONTEMPLATED BY THOSE IN THE WAR DEPARTMENT CHARGED WITH THE ADMINISTRATION OF THESE FIFTEEN-YEAR OLD STATUTES. IF THE DECISION IS FOLLOWED, A PREFERENCE IN PAY WILL BE GIVEN TO A CERTAIN CLASS OF OFFICER PERSONNEL WHICH HAS NEVER BEEN ENVISIONED BY THE WAR DEPARTMENT AND WILL CREATE A PAST DUE OBLIGATION OF THE GOVERNMENT, ESTIMATED IN THE HUNDREDS OF THOUSANDS OF DOLLARS, FOR WHICH NO PROVISION HAS BEEN MADE IN EITHER PAST OR CURRENT APPROPRIATION ACTS.

IT IS REQUESTED THAT RECONSIDERATION BE GIVEN TO THE ABOVE-MENTIONED DECISION. THERE IS ATTACHED, FOR CONSIDERATION BY YOUR OFFICE, A COPY OF AN APPROVED OPINION OF THE JUDGE ADVOCATE GENERAL RESPECTING THE WAR DEPARTMENT'S INTERPRETATION OF THE STATUTES INVOLVED.

SECTION 8 OF THE DOCKERY ACT OF JULY 31, 1894, 28 STAT. 207 (31 U.S. CODE, SEC. 74), IS IN PART AS FOLLOWS:

DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER OF THE TREASURY (NOW COMPTROLLER GENERAL OF THE UNITED STATES) SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE AUDITOR AND THE COMPTROLLER OF THE TREASURY (NOW GENERAL ACCOUNTING OFFICE AND COMPTROLLER GENERAL OF THE UNITED STATES) IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.

IN ACCORDANCE WITH THE PROVISIONS OF SAID STATUTE, THE QUESTION CONSIDERED IN THE DECISION TO WHICH REFERENCE WAS MADE IN THE ABOVE QUOTED LETTER WAS SUBMITTED TO THIS OFFICE BY MAJ. HERBERT BALDWIN, FINANCE DEPARTMENT, UNITED STATES ARMY, THE DISBURSING OFFICER AT FORT SHAFTER, T.H., MARCH 17, 1936, AT THAT TIME CHARGED WITH THE DUTY OF PAYING PAY AND ALLOWANCE ACCOUNTS OF LT. COL. FRANK H. HAYES, CHAPLAIN, UNITED STATES ARMY, AND PURSUANT TO DEPARTMENTAL REQUIREMENT, THE REQUEST FOR DECISION WAS FORWARDED THROUGH THE OFFICE OF THE CHIEF OF FINANCE, WHO, BY FIRST INDORSEMENT OF MAY 22, 1936, FORWARDED THE REQUEST TO THIS OFFICE WITH THE STATEMENT THAT " THIS REQUEST FOR ADVANCE DECISION IS MADE UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 31, 1894 (28 STAT. 208; U.S.C., 31:74).' UNDER THE PLAIN TERMS OF THE CITED ACT OF JULY 31, 1894, THE DECISION RENDERED PURSUANT TO SUCH REQUEST IS BINDING ON THIS OFFICE IN THE SETTLEMENT OF THE ACCOUNT CONTAINING THE DISBURSEMENT. I ASSUME, THEREFORE, IT IS NOT YOUR PURPOSE TO REQUEST A RECONSIDERATION OF THE DECISION SO FAR AS AFFECTS PAYMENTS WHICH HAVE BEEN MADE UNDER THE AUTHORITY THEREOF. SUCH A REQUEST FOR RECONSIDERATION WOULD HAVE TO BE DENIED. SEE 6 COMP. DEC. 50. THAT IS, A DECISION ON A FULL CONSIDERATION OF ALL OF THE FACTS OF A CASE, SO FAR AS IT AUTHORIZES A PAYMENT, MAY NOT BE RECONSIDERED, SOLELY ON THE LEGAL QUESTION INVOLVED, FOR THE PURPOSE OF MODIFYING OR WITHDRAWING THE AUTHORITY GIVEN BY THE DECISION TO THE DISBURSING OFFICER APPLYING FOR IT--- AND UNDER WHICH HE ACTED.

HOWEVER, YOUR LETTER MAY BE CONSIDERED A REQUEST FOR RECONSIDERATION OF THE LEGAL CONCLUSION REACHED IN THE DECISION TO WHICH YOU REFER SO FAR AS IT MAY RELATE TO PAYMENTS HEREAFTER TO BE MADE.

ALTHOUGH THE STATUTE PROVIDES FOR DECISION BY THE COMPTROLLER GENERAL IN ORDER THAT THE QUESTION CONSIDERED MAY BE SET AT REST SO FAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED, YET IN VIEW OF THE SETTLED POLICY OF THIS OFFICE TO RESOLVE ALL GENUINE DOUBTS AS TO LAW AND FACTS IN FAVOR OF THE GOVERNMENT AND THUS TO RESERVE FOR JUDICIAL CONSIDERATION ANY DOUBTFUL QUESTION BEFORE PAYMENT IS MADE, IT IS THE UNIFORM PRACTICE OF THIS OFFICE TO GIVE FURTHER CONSIDERATION TO ANY QUESTION DECIDED WHERE SUGGESTION IS MADE THAT THE INTERESTS OF THE GOVERNMENT MAY NOT HAVE BEEN ADEQUATELY PROTECTED BY A DECISION. KEEPING WITH SUCH PRACTICE, CONSIDERATION WILL BE GIVEN THE SUBJECT MATTER OF THE DECISION TO WHICH YOU REFER SO FAR AS IT MAY BE REGARDED AS AUTHORITY FOR FUTURE PAYMENTS ON THE BASIS HELD TO BE AUTHORIZED BY THE DECISION IN QUESTION.

THE SAID DECISION OF AUGUST 30, 1937, HELD THAT CHAPLAIN ( LT. COL.) FRANK H. HAYES, WHO WAS APPOINTED A LIEUTENANT COLONEL SEPTEMBER 28, 1935, WAS ENTITLED TO FIFTH-PERIOD PAY FROM THAT DATE. IT WAS, THEREFORE, AN INTERPRETATION OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 625, AS APPLIED TO THE FACTS OF HIS CASE. THE ARMY REGISTER FOR 1939, AT PAGE 332, SHOWS HE HAS HAD THE FOLLOWING SERVICE:

(OTHER THAN REGULAR ARMY) CH. (1 LT). N.A. 9 FEB. 18; ACCEPTED 14 FEB. 18; CH. (CAPT.) U.S.A. 8 MAY 19; ACCEPTED 18 MAY 19; HON. DIS. 3 SEPT. 19.--- ( IN REGULAR ARMY) CH. (CAPT.) 1 JULY 20; ACCEPTED 30 SEPT. 20; MAJ. 28 SEPT. 29; LT COL. 28 SEPT. 35.

INFORMAL INFORMATION OBTAINED FROM THE ADJUTANT GENERAL'S OFFICE ON JUNE 10, 1936, IS THAT THE ORIGINAL APPOINTMENT TO THE REGULAR ARMY WAS SEPTEMBER 28, 1920, WITH RANK FROM JULY 1, 1920, AND SUBSEQUENT PROMOTIONS SO INDICATE. AT THE TIME OF HIS LAST PROMOTION HE HAD BEEN AN OFFICER OF THE REGULAR ARMY FOR 15 YEARS, SEPTEMBER 28, 1920, TO SEPTEMBER 28, 1935, AND HAD SERVICE DURING THE WORLD WAR AS AN EMERGENCY OFFICER FROM DATE OF ACCEPTANCE, FEBRUARY 14, 1918, TO AND INCLUDING DATE OF DISCHARGE, SEPTEMBER 3, 1919, OR 1 YEAR, 6 MONTHS, AND 20 DAYS, A TOTAL ON DATE OF APPOINTMENT AS LIEUTENANT COLONEL OF 16 YEARS, 6 MONTHS, AND 20 DAYS. THE QUESTION PRESENTED WAS WHETHER, ON SUCH APPOINTMENT, HE WAS ENTITLED TO PAY OF THE FIFTH PERIOD. IT MAY BE REMARKED THAT CHAPLAIN HAYES COMPLETED 20 YEARS OF SERVICE ON MARCH 8, 1939, SO THAT AS TO HIS PAY FROM AND AFTER THAT DATE THERE COULD BE NO QUESTION.

THE FOURTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, AUTHORIZES THE PAY OF THE FIFTH PERIOD:

* * * TO LIEUTENANT COLONELS OF THE ARMY * * * WHO HAVE COMPLETED TWENTY YEARS' SERVICE, OR WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO CAPTAIN IN THE ARMY, OR WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24; * * *. ( MORE COMPLETELY DESCRIBED IN THE THIRD PARAGRAPH OF SECTION 1 OF THE ACT AS "ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920.''.

IN THE DECISION OF WHICH YOU REQUEST RECONSIDERATION IT WAS CONCLUDED THAT THE OFFICER WAS APPOINTED TO THE REGULAR ARMY "UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24" WITHIN THE INTENT AND MEANING OF THE JOINT PAY ACT. IN A MEMORANDUM OPINION OF THE JUDGE ADVOCATE GENERAL ADDRESSED TO YOU DECEMBER 20, 1937, AND WHICH YOU TRANSMIT, THAT OFFICIAL EXPRESSES THE VIEW THAT THE PROVISIONS FOR THE APPOINTMENT OF CHAPLAINS AND OFFICERS OF THE MEDICAL DEPARTMENT CONTAINED IN SECTIONS 15 AND 10, RESPECTIVELY, OF THE ACT OF JUNE 4, 1920, 41 STAT. 759, ARE EXCLUSIVE OF THE PROVISION FOR THE APPOINTMENT OF OFFICERS CONTAINED IN THE FIRST SENTENCE OF SECTION 24 OF THE ACT OF JUNE 4, 1920. THERE IS NO NEED TO QUESTION THAT CONCLUSION BUT THAT DOES NOT ANSWER THE QUESTION PRESENTED TO THIS OFFICE FOR DECISION.

LITERALLY, OF COURSE, CHAPLAINS APPOINTED TO THE REGULAR ARMY UNDER SECTION 15 OF THE ACT OF JUNE 4, 1920, WERE NOT APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THAT ACT BUT THAT DOES NOT NECESSARILY DETERMINE THE INTENT OF THE LANGUAGE CONTAINED IN THE ACT OF JUNE 10, 1922, HERE FOR CONSIDERATION. THE PAY OF THE SIXTH PERIOD TO COLONELS IS ALSO AUTHORIZED TO BE PAID TO THOSE "WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24.' IN THE ORIGINAL ACT, FOURTH-PERIOD PAY WAS PROVIDED FOR MAJORS ,WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24.' THE BASE PAY OF THE THIRD PERIOD WAS PAYABLE TO CAPTAINS OF THE ARMY "WHOSE PRESENT RANK (THAT IS, JULY 1, 1922) DATES FROM JULY 1, 1920 OR EARLIER; " AN OBVIOUS REFERENCE TO THE PROVISIONS IN SECTIONS 10 AND 15 OF THE ACT OF JUNE 4, 1920, THAT OF THE VACANCIES EXISTING IN THE MEDICAL DEPARTMENT AND AMONG CHAPLAINS ON JULY 1, 1920,"SUCH NUMBER AS THE PRESIDENT MAY DIRECT SHALL BE FILLED BY THE APPOINTMENT ON THAT DATE" OF EMERGENCY OFFICERS AS THEREIN DESCRIBED AND THE PROVISION IN SECTION 24 THAT ONE-HALF OF THE VACANCIES CAUSED BY THAT ACT, EXCLUSIVE OF THOSE IN THE MEDICAL DEPARTMENT AND AMONG CHAPLAINS "SHALL BE FILLED BY THE APPOINTMENT TO DATE FROM JULY 1, 1920" OF EMERGENCY OFFICERS UNDER THE CONDITIONS AND LIMITATIONS THEREIN PRESCRIBED.

SO THAT UNDER THE ORIGINAL ACT OF JUNE 10, 1922, (1) ALL CHAPLAINS AND OFFICERS OF THE MEDICAL DEPARTMENT APPOINTED AND SERVING AS CAPTAINS WERE ON A PARITY AS TO THIRD PERIOD PAY WITH ALL OTHER OFFICERS OF THE ARMY OF THAT GRADE APPOINTED UNDER THE ACT OF JUNE 4, 1920; (2) ALL SUCH OFFICERS APPOINTED TO OR ATTAINING THE GRADE OF MAJOR WERE ENTITLED TO FOURTH PERIOD PAY UNDER THE CLAUSE IN THAT PARAGRAPH FOR PAYMENT OF PAY OF THE FOURTH PERIOD TO MAJORS "WHOSE FIRST APPOINTMENT IN THE PERMANENT SERVICE WAS IN A GRADE ABOVE THAT CORRESPONDING TO SECOND LIEUTENANTS IN THE ARMY; " AND (3) ALL SUCH OFFICERS WHO WERE APPOINTED ABOVE THE GRADE OF CAPTAIN AND WHO ATTAIN THE GRADES OF LIEUTENANT COLONEL AND COLONEL WHO ARE NOT CLEARLY ON A PARITY OF PAY WITH PROMOTION LIST OFFICERS WHO WERE APPOINTED TO THE REGULAR ARMY TO DATE FROM JULY 1, 1920, UNDER THE ACT OF JUNE 4, 1920, AND WHO, ALSO, ATTAIN THE GRADES OF LIEUTENANT COLONEL AND COLONEL. ALL PROMOTION LIST OFFICERS SO APPOINTED UPON ATTAINING THE GRADES OF LIEUTENANT COLONEL AND COLONEL RECEIVE THE PAY OF THE FIFTH AND SIXTH PERIODS, SO THE DISCRIMINATION CONTENDED FOR BY THE WAR DEPARTMENT IS ONLY WITH RESPECT TO OFFICERS OF THE MEDICAL DEPARTMENT AND CHAPLAINS APPOINTED TO THE REGULAR ARMY IN A GRADE BELOW THAT OF MAJOR UNDER THE ACT OF JUNE 4, 1920, AND WHO ATTAIN THE GRADES OF LIEUTENANT COLONEL AND COLONEL. THEY HAVE HAD EQUALITY OF PAY WITH OTHER OFFICERS APPOINTED UNDER THE ACT OF 1920 TO AND INCLUDING THE GRADE OF MAJOR AND THE QUESTION FOR CONSIDERATION WAS WHETHER NOTWITHSTANDING THE APPARENTLY PLAIN LANGUAGE OF THE JOINT PAY ACT AS TO FIFTH AND SIXTH PERIOD PAY IT WAS INTENDED THAT THIS LIMITED CLASS OF OFFICERS SHOULD BE PLACED IN A POSITION OF INFERIORITY AS TO PAY AND ALLOWANCES WITH RESPECT TO ALL OTHER OFFICERS OF THE ARMY OF THE SAME GRADE AND CONDITIONS OF APPOINTMENT.

THE CONGRESS ITSELF INTERPRETED THE PROVISION IN THE AMENDMENT OF THE FIFTH PARAGRAPH RELATING TO FOURTH PERIOD PAY BY THE ACT OF MAY 23, 1928, 45 STAT. 719, WHEN IT REENACTED THE PARAGRAPH AND SO FAR AS HERE MATERIAL, CHANGED THE CLAUSE IN THE ORIGINAL ACT READING "OR WHO WERE APPOINTED TO THE REGULAR ARMY TO FILL VACANCIES CREATED BY THE INCREASE OF THE COMMISSIONED PERSONNEL THEREOF IN 1920.' THE AMENDMENT OF THAT PARAGRAPH HAD BEEN REQUESTED BY THE SECRETARY OF THE NAVY TO INCLUDE LIEUTENANT COMMANDERS OF THE STAFF CORPS OF THE NAVY IN THE PROVISION FOR PAYMENT OF PAY OF THE FOURTH PERIOD TO LIEUTENANTS OF THE STAFF CORPS OF THE NAVY WHOSE TOTAL COMMISSIONED SERVICE EQUALED THAT OF LIEUTENANT COMMANDERS OF THE LINE OF THE NAVY DRAWING THE PAY OF THAT PERIOD. AMENDMENT TO THE BILL AS REPORTED BY THE COMMITTEE WAS OFFERED BY MR. LAGUARDIA AMENDING IT TO THE FORM APPEARING IN THE ACT (SO FAR AS HERE MATERIAL) AND UPON SUGGESTION THAT THE AMENDMENT COVERED A GREATER FIELD MR. LAGUARDIA SAID, CONGRESSIONAL RECORD, VOLUME 69, PART 7, PAGE 8007, THAT:

* * * I HAVE NOT OFFERED ANYTHING NEW. THE AMENDMENT CHANGES ONLY THE LAST FIVE LINES OF THE ACT REFERRED TO, AND I DID NOT PUT ANYTHING NEW IN IT.

MR. BLACK OF TEXAS. HAS THE GENTLEMAN EXAMINED THE LANGUAGE IN HIS AMENDMENT VERY CAREFULLY TO SEE THAT IT DOES NOT GO BEYOND THE SCOPE OF THE PRESENT BILL?

MR. LAGUARDIA. OF COURSE I HAVE. ALL I HAVE DONE IS TO REWRITE PARAGRAPH 5 AS IT IS AMENDED BY THE PRESENT BILL. I WOULD NOT THINK OF DOING ANYTHING ELSE. * * *

THIS CHANGE IN PHRASEOLOGY SEEMS TO HAVE MORE NEARLY EXPRESSED THE PURPOSE OF THE JOINT COMMITTEE HAVING THE PAY BILL IN CHARGE IN 1922 AS APPEARS FROM THE HEARINGS BEFORE A SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES, SIXTY-SEVENTH CONGRESS, SECOND SESSION, ON H.R. 10972, MARCH 18 AND MARCH 20, 1922, AS PRINTED FOR THE USE OF THE SPECIAL COMMITTEE ON ADJUSTMENT OF SERVICE PAY. THIS IS THE BILL WHICH SUBSEQUENTLY BECAME THE ACT OF JUNE 10, 1922. AT PAGE 1 THE FOLLOWING IS FOUND AS STATED BY HON. JOHN C. MCKENZIE (CHAIRMAN): AFTER THE HEARINGS WERE CLOSED, A TENTATIVE BILL WAS SUBMITTED FOR THE CONSIDERATION OF THE MEMBERS OF THE JOINT COMMITTEE AND THE SERVICES. THE SECRETARIES OF THE VARIOUS SERVICES, AT THE REQUEST, AS I NOW REMEMBER, OF THE CHAIRMAN OF THE JOINT COMMITTEE, SENATOR WADSWORTH, DESIGNATED CERTAIN OFFICERS TO TAKE UP THE TENTATIVE BILL CONSIDERATION, ALONG WITH THE SUGGESTIONS MADE BY THE MEMBERS OF THE COMMITTEE.

AT PAGE 2:

FOLLOWING THAT, I DESIRE TO INCLUDE IN THE RECORD AN EXPLANATION OF THE VARIOUS SECTIONS OF THE BILL, PREPARED BY THE SERVICES AT MY REQUEST; * *

AT PAGE 11 THE FOLLOWING IS FOUND:

READJUSTMENT OF PAY

( COMMENTS ON THE PROPOSED PAY BILL AS RECOMMENDED BY THE SPECIAL COMMITTEE TO READJUST THE PAY AND ALLOWANCES OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE)

AT PAGE 22:

ASSIMILATION OF PAY FOR OFFICERS APPOINTED UNDER DIVERSE PROVISIONS OF EXISTING LAW.--- IN ADDITION TO THE QUALIFICATION AS TO LENGTH OF SERVICE AND GRADE, CERTAIN SPECIAL PROVISIONS ARE MADE IN EACH PERIOD TO ASSIMILATE THE PAY OF OFFICERS APPOINTED UNDER VARYING CIRCUMSTANCES IN THE DIFFERENT SERVICES AND OF THOSE WHOSE PROMOTION IS RESTRICTED. ILLUSTRATE, IN THE SIXTH PAY PERIOD ARE FOUND THE FOLLOWING CLASSES:

1. COLONELS OF THE ARMY WITH 26 YEARS' SERVICE, AND OFFICERS OF CORRESPONDING RANK AND LENGTH OF SERVICE IN THE NAVY, MARINE CORPS, PUBLIC HEALTH SERVICE, ETC.

2. COLONELS OF THE ARMY WHOSE FIRST APPOINTMENT IN THE ARMY WAS IN THE GRADE OF CAPTAIN, AND OFFICES IN THE OTHER SERVICES OF LIKE RANCH WHOSE FIRST APPOINTMENT WAS IN A CORRESPONDING GRADE.

3.COLONELS IN THE ARMY APPOINTED UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SECTION 24 OF THE NATIONAL DEFENSE ACT, VIZ, EMERGENCY OFFICERS.

DETAILED EXPLANATION OF THE PROVISIONS OF THE SIXTH (HIGHEST) PAY PERIODS.--- REFERRING TO EACH OF THE ABOVE GROUPS SPECIFICALLY. GROUP NO. 1 MAY BE SAID TO BE THE NORMAL GROUP OF OFFICERS ENTITLED TO THE PAY OF THIS GRADE.

THE SECOND AND THIRD GROUPS TAKE INTO ACCOUNT THE FACT THAT OFFICERS OF SPECIAL ATTAINMENTS WERE ENTERED INTO THE COMMISSIONED RANKS AND GRADES WHICH THEY WOULD ORDINARILY SPEND MANY YEARS OF SERVICE IN ATTAINING HAD THEY ENTERED IN THE LOWEST GRADES. IN ORDER THAT THEIR PAY SHOULD BE COMMENSURATED WITH THEIR RESPONSIBILITIES, THE SERVICE QUALIFICATIONS WITH RESPECT TO THEM MUST BE IGNORED.

IT SEEMS CLEAR THAT THE DRAFTSMEN OF THE LEGISLATION IN 1922 BELIEVED THAT THE CLAUSE "OR WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24" INCLUDED ALL WORLD WAR EMERGENCY OFFICERS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920. A DISCRIMINATIVE SUCH AS WOULD RESULT BY A STRICT AND LITERAL INTERPRETATION OF THAT CLAUSE AS NOW APPEARS ONLY IN THE PROVISIONS FOR THE PAY OF THE FIFTH AND SIXTH PERIODS WAS CERTAINLY NOT INTENDED. FOR EXAMPLE, UNDER SUCH AN INTERPRETATION OFFICERS OF THE MEDICAL DEPARTMENT AND CHAPLAINS APPOINTED UNDER THE ACT OF 1920 IN THE GRADE OF MAJOR WOULD HAVE THE PAY OF THE FIFTH AND SIXTH PERIODS UPON ATTAINING THE GRADES OF LIEUTENANT COLONEL AND COLONEL BUT IF SO APPOINTED IN THE GRADE OF CAPTAIN THEY WOULD NOT RECEIVE ANY ALLOWANCE FOR CONSTRUCTIVE SERVICE FOR THE PURPOSE OF BASE PAY ALTHOUGH SUCH CONSTRUCTIVE SERVICE WAS THE BASIS FOR THE ADVANCEMENT IN GRADE, AND ALTHOUGH OFFICERS SO APPOINTED TO THE REGULAR ARMY UNDER THE ACT OF 1920 IN ALL OTHER BRANCHES OF THE ARMY TO DATE FFROM JULY 1, 1920, WOULD RECEIVE THE PAY OF THE FIFTH AND SIXTH PERIODS UPON ATTAINING THE GRADES OF LIEUTENANT COLONEL AND COLONEL, RESPECTIVELY. CONFRONTED WITH THIS ANOMALOUS SITUATION, THE CONCLUSION WAS REACHED IN THE DECISION OF AUGUST 30, 1937, THAT THE INTENT OF THE CLAUSES AS NOW APPEARING ONLY IN THE PROVISIONS FOR THE PAY OF THE FIFTH AND SIXTH PERIODS TO BE PAID TO OFFICERS OF THE GRADE OF LIEUTENANT COLONEL AND COLONEL, RESPECTIVELY,"WHO WERE APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE FIRST SENTENCE OF SAID SECTION 24" OF THE ACT OF JUNE 4, 1920, WAS TO AUTHORIZE WHAT IS NOW PROVIDED FOR PAYMENT OF THE PAY OF THE FOURTH PERIOD, THAT IS, THAT THE CLAUSES ARE THE EQUIVALENT OF "WHO WERE APPOINTED TO THE REGULAR ARMY TO FILL VACANCIES CREATED BY THE INCREASE OF THE COMMISSIONED PERSONNEL THEREOF IN 1920.' IT IS BELIEVED THAT SUCH CONSTRUCTION IS WARRANTED BY THE LANGUAGE AND HISTORY OF THE PAY ACT AND THE FACTS OF THE SITUATION TO WHICH THAT ACT MUST BE APPLIED. THAT CONSTRUCTION DOES NO INJUSTICE TO ANY OFFICER BUT SECURES TO ALL WORLD WAR EMERGENCY OFFICERS APPOINTED TO THE REGULAR ARMY UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, EQUALITY OF TREATMENT IN THE MATTER OF PAY AND ALLOWANCES. NO BASIS IS PERCEIVED FOR MODIFYING THE CONCLUSION SO REACHED AFTER DELIBERATE AND PAINSTAKING CONSIDERATION OF "THE NUMBER AND COMPLEXITY OF THE STATUTES INVOLVED AND THEIR INEPT PHRASING.' ( QUOTING MR. JUSTICE STONE IN LEONARD V. UNITED STATES, 279 U.S. 40 AT P. 47, WHERE SEC. 1 OF THE ACT OF JUNE 10, 1922, WAS CONSIDERED BY THE SUPREME COURT.)