B-18001, SEPTEMBER 27, 1941, 21 COMP. GEN. 270

B-18001, SEPTEMBER 27, 1941, 21 COMP. GEN. 270

PAY - PROMOTIONS - TEMPORARY RANK DURING WAR OR NATIONAL EMERGENCY A CAPTAIN ON THE ACTIVE LIST IN THE ARMY MEDICAL ADMINISTRATIVE CORPS IS NOT, UPON RETIREMENT, DIVESTED OF HIS STATUS AS AN OFFICER IN SUCH CORPS, AND, EVEN THOUGH AFTER RECALL TO ACTIVE DUTY AND ASSIGNMENT TO THE MEDICAL DEPARTMENT HE WAS TEMPORARILY APPOINTED A MAJOR IN THE ARMY OF THE UNITED STATES, HE IS ENTITLED ONLY TO THE MAXIMUM PAY, THAT OF A CAPTAIN, PROVIDED IN SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED, FOR OFFICERS IN THE MEDICAL ADMINISTRATIVE CORPS.

COMPTROLLER GENERAL WARREN TO COL. W. M. DIXON, UNITED STATES ARMY, SEPTEMBER 27, 1941:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF JUNE 12, 1941, TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED, A VOUCHER STATED FOR $57.75 IN FAVOR OF MAJ. CLIFFORD H. PERRY, UNITED STATES ARMY, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES OF A CAPTAIN AND OF A MAJOR WITH OVER 30 YEARS' SERVICE FOR THE PERIOD MAY 10 TO MAY 31, 1941, THE OFFICER HAVING BEEN APPOINTED A TEMPORARY MAJOR IN THE ARMY OF THE UNITED STATES AFTER RECALL TO ACTIVE DUTY FROM THE RETIRED LIST.

THE OFFICIAL ARMY REGISTER FOR 1940 SHOWS THAT CLIFFORD H. PERRY SERVED AS A PRIVATE OF COMPANY D, THIRD NEW YORK VOLUNTEER INFANTRY, FROM MAY 15 TO NOVEMBER 30, 1898; AS AN ENLISTED MAN IN THE HOSPITAL CORPS AND MEDICAL DEPARTMENT OF THE ARMY FROM DECEMBER 27, 1898, TO SEPTEMBER 11, 1917, AND AS A LIEUTENANT, CAPTAIN, AND MAJOR, RESPECTIVELY, IN THE SANITARY CORPS UNTIL VACATION OF HIS COMMISSION SEPTEMBER 17, 1920; ACCEPTED APPOINTMENT AS CAPTAIN IN THE MEDICAL ADMINISTRATIVE CORPS SEPTEMBER 17, 1920, AND WAS RETIRED WHILE SERVING AS CAPTAIN WITH THE RANK OF MAJOR DECEMBER 31, 1937, UNDER THE ACT OF JUNE 21, 1930, 46 STAT. 793, WHICH PROVIDED THAT COMMISSIONED OFFICERS UPON RETIREMENT SHALL BE ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST GRADE HELD BY THEM DURING THE WORLD WAR. THE 1930 ACT CONTAINED A PROVISO THAT THEY SHALL RECEIVE NO INCREASE OF ACTIVE OR RETIRED PAY OR ALLOWANCES INCIDENT TO SUCH ADVANCEMENT ON THE RETIRED LIST.

PARAGRAPH 21 OF WAR DEPARTMENT SPECIAL ORDERS NO. 162, DATED JULY 11, 1940, PROVIDED:

BY DIRECTION OF THE PRESIDENT, MAJOR CLIFFORD H. PERRY, UNITED STATES ARMY, RETIRED, NOW AT CHEVY CHASE, MARYLAND, IS, WITH HIS CONSENT, PLACED ON ACTIVE DUTY WITH THE RANK OF CAPTAIN, THE RANK HELD AT THE TIME OF HIS RETIREMENT, AND IS ASSIGNED TO THE OFFICE OF THE SURGEON GENERAL, WASHINGTON, D.C., AND WILL REPORT FOR DUTY ACCORDINGLY.

THE TEMPORARY APPOINTMENT OF THE OFFICER TO MAJOR WITH RANK FROM MAY 5, 1941, UNDER THE PROVISIONS OF SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF SEPTEMBER 9, 1940, 54 STAT. 875, WAS ANNOUNCED IN PARAGRAPH 4 OF WAR DEPARTMENT SPECIAL ORDERS NO. 108, DATED MAY 9, 1941, AND IT IS STATED THAT THE OFFICER ACCEPTED THE APPOINTMENT MAY 10, 1941.

SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACTS OF JANUARY 29, 1938, 52 STAT. 8, AND APRIL 3, 1939, 53 STAT. 559, PROVIDES:

THE MEDICAL DEPARTMENT SHALL CONSIST OF ONE SURGEON GENERAL WITH THE RANK OF MAJOR GENERAL, FOUR ASSISTANTS WITH THE RANK OF BRIGADIER GENERAL, ONE OF WHOM SHALL BE AN OFFICER IN THE DENTAL CORPS, * * * THE MEDICAL ADMINISTRATIVE CORPS, * * * THE NUMBER OF OFFICERS OF THE MEDICAL CORPS SHALL BE ONE THOUSAND FOUR HUNDRED AND TWENTY-FOUR, AND OF THE MEDICAL ADMINISTRATIVE CORPS, SIXTEEN. * * *

HEREAFTER AN OFFICER OF THE MEDICAL, VETERINARY, OR DENTAL CORPS SHALL BE PROMOTED TO THE GRADE OF CAPTAIN AFTER THREE YEARS' SERVICE, TO THE GRADE OF MAJOR AFTER TWELVE YEARS' SERVICE, TO THE GRADE OF LIEUTENANT COLONEL AFTER TWENTY YEARS' SERVICE, AND TO THE GRADE OF COLONEL AFTER TWENTY-SIX YEARS' SERVICE.

AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS SHALL BE PROMOTED TO THE GRADE OF FIRST LIEUTENANT AFTER FIVE YEARS' SERVICE, AND TO THE GRADE OF CAPTAIN AFTER TEN YEARS' SERVICE. * * *

PARAGRAPH 7 OF SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 20 OF THE ACT OF JUNE 15, 1933, 48 STAT. 161, AND SECTION 101 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC NO. 781, 54 STAT. 875, 10 U.S.C. 513, PROVIDES:

IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT ANY OFFICER OF THE REGULAR ARMY MAY BE APPOINTED TO HIGHER TEMPORARY GRADE WITHOUT VACATING HIS PERMANENT APPOINTMENT. IN TIME OF WAR ANY OFFICER OF THE REGULAR ARMY APPOINTED TO HIGHER TEMPORARY GRADE, AND ALL OTHER PERSONS APPOINTED, AS OFFICERS, SHALL BE APPOINTED AND COMMISSIONED IN THE ARMY OF THE UNITED STATES. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE, AND GENERAL OFFICERS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: * * *

IN DECISION B-14985, DATED MARCH 26, 1941, 20 COMP. GEN. 558, IT WAS HELD THAT THE LIMITATIONS UPON THE MAXIMUM OR HIGHEST GRADES FOR OFFICERS FOR THE VARIOUS BRANCHES OF THE ARMY AS DEFINITELY FIXED BY THE NATIONAL DEFENSE ACT WERE NOT AFFECTED BY THE PROVISIONS OF LAW THEREIN CITED AND IT WAS CONCLUDED THEREIN THAT BY GIVING EFFECT TO SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED, THE HIGHEST GRADE LEGALLY AUTHORIZED FOR AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS WAS THAT OF CAPTAIN FOR WHOM THE MAXIMUM PAY AND ALLOWANCES UPON COMPLETION OF 17 YEARS' SERVICE WOULD BE THOSE OF THE FOURTH PAY PERIOD.

THE QUESTION PRESENTED IN THE INSTANT CASE IS WHETHER THE CONCLUSION IN THE DECISION OF MARCH 26, 1941, IS APPLICABLE WHERE A CAPTAIN IN THE MEDICAL ADMINISTRATIVE CORPS OF THE REGULAR ARMY HAS BEEN PLACED UPON THE RETIRED LIST; IS RECALLED TO ACTIVE DUTY; AND IS THEN PROMOTED TEMPORARILY TO THE GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES. IN PUBLISHING THE OFFICIAL ARMY REGISTER THE PRACTICE SEEMS TO BE TO OMIT THE DESIGNATION OF THE ARM, CORPS, BRANCH, OR DEPARTMENT FROM WHICH AN OFFICER IS RETIRED, THE DESCRIPTION MERELY REFLECTING THAT THE OFFICER HAS RETIRED FROM THE ARMY, THE THEORY THEREFOR BEING THAT ON RETIREMENT HIS IDENTITY WITH ANY PARTICULAR BRANCH IS LOST. IT IS NOT APPARENT THAT SUCH OMISSION AFFECTS OR CHANGES THE FACT THAT THE PARTICULAR OFFICER HAS BEEN RETIRED FROM A PARTICULAR BRANCH OF THE SERVICE, AND IF THE SUBSTANTIVE LAW APPLICABLE TO THAT BRANCH OR ARM PLACES A LIMITATION BELOW THAT OF COLONEL UPON THE GRADE OF THE OFFICERS THEREOF, THE FACT THAT THE OFFICER HAS BEEN TEMPORARILY PROMOTED AFTER RETIREMENT AND WHILE ON ACTIVE DUTY TO A GRADE ABOVE THAT FIXED BY THE STATUTE CANNOT OPERATE TO PLACE THE RETIRED OFFICER IN A BETTER POSITION THAN THE OFFICER WHO WAS COMMISSIONED IN SUCH HIGHER TEMPORARY GRADE PRIOR TO RETIREMENT.

THIS VIEW FINDS SUPPORT UNDER THE PROVISION CONTAINED IN THE THIRD PARAGRAPH OF CHAPTER XX OF THE ACT OF JULY 9, 1918, 40 STAT. 893, 10 U.S.C., 999, AS FOLLOWS:

RETIRED OFFICERS ON ACTIVE DUTY.--- THAT WHEN ANY RETIRED OFFICER OF THE ARMY IS, IN THE DISCRETION OF THE PRESIDENT, EMPLOYED ON ACTIVE DUTY AND ASSIGNED TO DUTY IN AN ARM, CORPS, DEPARTMENT, OR ORGANIZATION, HE SHALL, FOR ALL PURPOSES, EXCEPT PROMOTION, BE CONSIDERED AN OFFICER OF SUCH ARM, CORPS, DEPARTMENT, OR ORGANIZATION WHILE SO SERVING, AND SHALL BE AN EXTRA NUMBER THEREIN.

UNDER THE QUOTED PROVISION OF THE ACT OF JULY 9, 1918, WHEN A RETIRED OFFICER IS EMPLOYED ON ACTIVE DUTY AND ASSIGNED TO AN ARM, CORPS, OR DEPARTMENT OF THE ARMY HE IS AN OFFICER OF THE ARM, CORPS, OR DEPARTMENT TO WHICH HE IS ASSIGNED AND WITH WHICH HE IS SERVING. SEE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912 1930, SECTION 51, PAGE 30. UPON TRANSFER TO THE RETIRED LIST THIS OFFICER WAS NOT DIVESTED OF THE OFFICE OF CAPTAIN TO WHICH HE HAD BEEN APPOINTED ON THE ACTIVE LIST, AND WHEN HE WAS RECALLED TO ACTIVE DUTY IT WAS UNDER THE SAME APPOINTMENT THAT HE HELD ON THE ACTIVE LIST, THE CHANGE IN STATUS NOT AFFECTING THE OFFICE.

PARAGRAPH 21 OF WAR DEPARTMENT SPECIAL ORDERS NO. 162 UNDER WHICH THIS OFFICER WAS PLACED UPON ACTIVE DUTY ASSIGNED HIM TO THE OFFICE OF THE SURGEON GENERAL, THE HEAD OF THE MEDICAL DEPARTMENT OF THE ARMY. HE WAS THUS ASSIGNED TO THE MEDICAL DEPARTMENT AND IN ACCORDANCE WITH THE PROVISION OF THE ACT OF JULY 9, 1918, HE MUST BE CONSIDERED AN OFFICER OF THE MEDICAL DEPARTMENT. FOLLOWING THE REASONING OF THE DECISION OF MARCH 26, 1941, SUPRA, SINCE HE WAS NOT AN OFFICER OF THE MEDICAL CORPS, VETERINARY CORPS, OR THE DENTAL CORPS, THE ONLY BASIS FOR COMPUTATION OF PAY IS THAT FIXED AND LIMITED FOR AN OFFICER OF THE MEDICAL ADMINISTRATIVE CORPS UNDER THE PROVISIONS OF SECTION 10 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUPRA.

YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.