B-12971, OCTOBER 25, 1940, 20 COMP. GEN. 213

B-12971, OCTOBER 25, 1940, 20 COMP. GEN. 213

PAY - RETIRED - ARMY ENLISTED MEN ENLISTED MEN OF THE ARMY WHO WERE PLACED ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1940, THE EFFECTIVE DATE OF SECTION 12 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, ARE ENTITLED TO HAVE THEIR RETIRED PAY FROM AND AFTER THAT DATE COMPUTED ON THE BASIS OF THE ACTIVE LIST PAY ESTABLISHED BY SAID SECTION, INCLUDING THE RIGHT GIVEN BY SECTION 12 (B) TO HAVE PAY FOR SPECIALISTS' RATINGS CONSIDERED IN THE COMPUTATION OF RETIRED PAY, AND ALL SUBJECT TO THE SAVINGS CLAUSE IN SECTION 12 (E).

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 25, 1940:

I HAVE YOUR LETTER OF OCTOBER 16, 1940, AS FOLLOWS:

THERE IS A QUESTION BEFORE THE WAR DEPARTMENT AS TO WHETHER ENLISTED MEN OF THE ARMY WHO WERE PLACED ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1940, WILL HAVE THEIR PAY COMPUTED ON THE BASIS OF THE NEW RATES OF PAY AUTHORIZED FOR ENLISTED MEN BY SECTION 12 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940 ( PUBLIC, NO. 783, 76TH CONGRESS).

IN THE PAST, THE COMPTROLLER OF THE TREASURY HELD ON SEVERAL OCCASIONS WHEN THE RATES OF PAY FOR ENLISTED MEN WERE CHANGED, FOR EXAMPLE UNDER THE ACT OF JULY 11, 1919 (41 STAT. 110) AND THE ACT OF JUNE 4, 1920 (41 STAT. 761), THAT A CHANGE IN THE PAY OF THE RANK OF GRADE ON THE ACTIVE LIST EFFECTED A CHANGE IN THE PAY ON THE RETIRED LIST. (13 COMP. DEC. 759, 763; 26 ID. 612, 614; 27 ID. 422, 424.) THE ACT OF JUNE 10, 1922 (42 STAT. 629) CONTAINED A SPECIFIC PROVISION FOR THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE PAY PROVIDED IN THAT ACT.

THERE IS, HOWEVER, NOTHING IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 PERTAINING TO RETIRED PAY OF ENLISTED MEN EXCEPT SECTION 12 (B) WHICH PROVIDES THAT PAY FOR SPECIALISTS' RATING RECEIVED BY AN ENLISTED MAN OF THE ARMY OR THE MARINE CORPS AT THE TIME OF HIS RETIREMENT SHALL BE INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY, AND SECTION 12 (E) WHICH PROVIDES THAT NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY NOW BEING RECEIVED BY ANY RETIRED ENLISTED MAN.

YOUR DECISION ON THIS QUESTION IS THEREFORE RESPECTFULLY REQUESTED.

SECTION 12 OF THE ACT OF SEPTEMBER 16, 1940, PUBLIC, 783, PROVIDES:

(A) THE MONTHLY BASE PAY OF ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL BE AS FOLLOWS: ENLISTED MEN OF THE FIRST GRADE, $126; ENLISTED MEN OF THE SECOND GRADE, $84; ENLISTED MEN OF THE THIRD GRADE, $72; ENLISTED MEN OF THE FOURTH GRADE, $60; ENLISTED MEN OF THE FIFTH GRADE, $54; ENLISTED MEN OF THE SIXTH GRADE, $36; ENLISTED MEN OF THE SEVENTH GRADE, $30; EXCEPT THAT THE MONTHLY BASE PAY OF ENLISTED MEN WITH LESS THAN FOUR MONTHS' SERVICE DURING THEIR FIRST ENLISTMENT PERIOD AND OF ENLISTED MEN OF THE SEVENTH GRADE WHOSE INEFFICIENCY OR OTHER UNFITNESS HAS BEEN DETERMINED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL BE $21. THE PAY FOR SPECIALISTS' RATINGS, WHICH SHALL BE IN ADDITION TO MONTHLY BASE PAY, SHALL BE AS FOLLOWS: FIRST CLASS, $30; SECOND CLASS, $25; THIRD CLASS, $20; FOURTH CLASS, $15; FIFTH CLASS, $6; SIXTH CLASS, $3. ENLISTED MEN OF THE ARMY AND THE MARINE CORPS SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 10 PERCENTUM OF THEIR BASE PAY AND PAY FOR SPECIALISTS' RATINGS UPON COMPLETION OF THE FIRST FOUR YEARS OF SERVICE, AND AN ADDITIONAL INCREASE OF 5 PERCENTUM OF SUCH BASE PAY AND PAY FOR SPECIALISTS' RATINGS FOR EACH FOUR YEARS OF SERVICE THEREAFTER, BUT THE TOTAL OF SUCH INCREASES SHALL NOT EXCEED 25 PERCENTUM. ENLISTED MEN OF THE NAVY SHALL BE ENTITLED TO RECEIVE AT LEAST THE SAME PAY AND ALLOWANCES AS ARE PROVIDED FOR ENLISTED MEN IN SIMILAR GRADES IN THE ARMY AND MARINE CORPS.

(B) THE PAY FOR SPECIALISTS' RATING RECEIVED BY AN ENLISTED MAN OF THE ARMY OR THE MARINE CORPS AT THE TIME OF HIS RETIREMENT SHALL BE INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY.

(C) THE PAY OF ENLISTED MEN OF THE SIXTH GRADE OF THE NATIONAL GUARD FOR EACH ARMORY DRILL PERIOD, AND FOR EACH DAY OF PARTICIPATION IN EXERCISES UNDER SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, SHALL BE $1.20.

(D) NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THIS ACT FOR ANY PERIOD PRIOR TO OCTOBER 1, 1940.

(E) NOTHING IN THIS ACT SHALL OPERATE TO REDUCE THE PAY NOW BEING RECEIVED BY ANY RETIRED ENLISTED MAN.

(F) THE PROVISIONS OF THIS SECTION SHALL BE EFFECTIVE ON AND AFTER OCTOBER 1, 1940. THEREAFTER, ALL LAWS AND PARTS OF LAWS INSOFAR AS THE SAME ARE INCONSISTENT HEREWITH OR IN CONFLICT WITH THE PROVISIONS HEREOF ARE HEREBY REPEALED.

TO THE EXTENT THAT THIS SECTION CONTAINS PROVISIONS WITH RESPECT TO THE PAY OF ENLISTED MEN OF THE ARMY AND MARINE CORPS DIFFERENT FROM THOSE CONTAINED IN SECTION 9 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 13, IT OPERATES AS AN AMENDMENT TO SAID SECTION 9. SECTION 9 OF THE JOINT SERVICE PAY ACT CONCLUDED WITH THE FOLLOWING SENTENCE:

* * * ON AND AFTER JULY 1, 1922, RETIRED ENLISTED MEN OF THE ARMY AND MARINE CORPS SHALL HAVE THEIR RETIRED PAY COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED BY THIS ACT.

CLEARLY THE PAY RATES OF ENLISTED MEN OF THE ARMY AND MARINE CORPS AS ESTABLISHED BY SECTION 9 OF THE JOINT SERVICE PAY ACT, WHERE INCONSISTENT WITH THE PROVISIONS OF SECTION 12 (A) OF THE ACT OF SEPTEMBER 16, 1940, ARE REPEALED BY SECTION 12 (F). IT WILL BE OBSERVED ALSO, THAT BY SECTION 12 (B) PAY OF SPECIALISTS' RATING IS TO BE INCLUDED IN THE COMPUTATION OF THE RETIRED PAY OF AN ENLISTED MAN ON HIS RETIREMENT, AND SECTION 12 (E) IS A SAVINGS CLAUSE AS TO THE PAY BEING RECEIVED BY ANY RETIRED ENLISTED MAN OCTOBER 1, 1940--- THUS INDICATING THAT THE SECTION WAS INTENDED TO AFFECT THE RETIRED PAY OF ENLISTED MEN THERETOFORE RETIRED. HOWEVER, DETERMINATION OF THE QUESTION HERE PRESENTED NEED NOT REST ON THAT POINT ALONE. THE ACT OF MARCH 2, 1907, 34 STAT. 1217, PROVIDES:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDED, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

SEC. 2. THAT ALL ACTS AND PARTS OF ACTS, SO FAR AS THEY CONFLICT WITH THE PROVISIONS OF THIS ACT, ARE HEREBY REPEALED. THIS ACT, GIVING TO THE ENLISTED MAN PLACED UPON THE RETIRED LIST 75 PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, OPERATED AS AN AMENDMENT OF THE ACT OF FEBRUARY 14, 1885, 23 STAT. 305, WHICH AUTHORIZED 75 PERCENTUM OF THE PAY OF THE RANK UPON WHICH HE WAS RETIRED. THE EFFECT OF THIS CHANGE WAS FULLY CONSIDERED AND IT WAS HELD THAT NO CHANGE WAS MADE BY THE 1907 ACT AS TO RETIRED PAY BASED ON THE RANK OF THE ENLISTED MAN ON RETIREMENT. (SEE 13 COMP. DEC. 759.) WHEN THE ACT OF MAY 11, 1908, 35 STAT. 106, 109, PROVIDED A DIFFERENT METHOD OF COMPUTING CONTINUOUS SERVICE PAY OF ENLISTED MEN OF THE ARMY IT WAS HELD IN 14 COMP. DEC. 914- 915 AS FOLLOWS:

I AM OF OPINION THAT THE ENLISTED MEN RETIRED PRIOR TO THE PASSAGE OF THE ACT OF MAY 11, 1908, ARE ENTITLED TO THREE-FOURTHS OF THE PAY OF THE RANK UPON WHICH THEY WERE RETIRED, AND THAT WHEN THE PAY OF SUCH RANK WAS CHANGED BY SAID ACT IT CHANGED THEIR PAY ACCORDINGLY, AND I AM OF OPINION THAT THEIR TIME OF SERVICE ON THE ACTIVE LIST PRIOR TO THEIR RETIREMENT SHOULD BE COUNTED IN THE SAME MANNER AS IS PROVIDED IN SAID ACT FOR COUNTING THE PAST SERVICES OF MEN ON THE ACTIVE LIST AT THE TIME OF THE PASSAGE OF SAID ACT. IT WOULD BE IMPOSSIBLE BY ANY OTHER RULE TO GIVE MEN ON THE RETIRED LIST PRIOR TO THE PASSAGE OF SAID ACT OF MAY 11, 1908, THREE-FOURTHS OF THE PAY OF THE RANK UPON WHICH THEY WERE RETIRED. (SEE 13 COMP. DEC. 759.)

WHEN PERMANENT RATES OF PAY WERE ESTABLISHED BY THE ACT OF JULY 11, 1919, 41 STAT. 110, WHICH INCREASED THE PAY OF ENLISTED MEN OF THE ARMY IT WAS HELD, ON THE AUTHORITY OF THE PRIOR DECISIONS, THAT THOSE INCREASED RATES APPLIED TO ENLISTED MEN ON THE RETIRED LIST "IT HAVING BEEN DECIDED THAT THE PHRASE "PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF" IN THE ACT OF MARCH 2, 1907, MEANS THE PAY AND ALLOWANCES TO WHICH THE SOLDIER IS ENTITLED BY VIRTUE OF HIS RANK AND STATUS AS A SOLDIER" AND THAT "SUCH RATES ON JULY 11, 1919, BECAME THE PAY OF THE RANK ON WHICH ENLISTED MEN ARE ENTITLED TO RECEIVE 75 PERCENT UPON RETIREMENT.' 26 COMP. DEC. 612, 615. TO THE SAME EFFECT IS 27 COMP. DEC. 422 AT PAGE 424, AS TO PAY FOR ENLISTED MEN OF THE ARMY, ESTABLISHED BY SECTION 4B OF THE ACT OF JUNE 4, 1920, 41 STAT. 761.

IT APPEARS, THEREFORE, THAT IN THE ACCOUNTING OFFICES THE SETTLED MEANING OF THE ACT OF MARCH 2, 1907, IS THAT IT GIVES TO AN ENLISTED MAN RETIRED PAY BASED ON THE PAY OF THE RANK ON WHICH HE WAS RETIRED, THAT CHANGES IN THE PAY OF A RANK FOR ACTIVE ENLISTED MEN APPLIES TO THE RETIRED PAY OF RETIRED ENLISTED MEN OF THE SAME RANK, AND THAT SUCH CONSTRUCTION HAS BEEN FOLLOWED CONTINUOUSLY FOR OVER 30 YEARS. ACCORDINGLY, YOU ARE INFORMED THAT ENLISTED MEN OF THE ARMY WHO WERE PLACED ON THE RETIRED LIST PRIOR TO OCTOBER 1, 1940, ARE ENTITLED TO HAVE THEIR RETIRED PAY FROM AND AFTER THAT DATE COMPUTED ON THE BASIS OF THE ACTIVE LIST PAY ESTABLISHED BY SECTION 12 OF THE ACT OF SEPTEMBER 16, 1940, INCLUDING, IF PROPERLY ESTABLISHED, THE RIGHT GIVEN BY SECTION 12 (B), AND ALL SUBJECT, OF COURSE, TO THE SAVINGS CLAUSE CONTAINED IN SECTION 12 (E).