B-18699, AUGUST 25, 1941, 21 COMP. GEN. 173

B-18699, AUGUST 25, 1941, 21 COMP. GEN. 173

PAY - ACTIVE DUTY - RETIRED OFFICERS A CHIEF WARRANT OFFICER, APPOINTED AS SUCH AFTER JULY 1, 1922, WHO, UPON RETIREMENT UNDER THE ACT OF MAY 13, 1908, WAS ENTITLED TO COUNT PRIOR SERVICE AS AN ENLISTED MAN AND WARRANT OFFICER WHICH HE COULD NOT COUNT ON THE ACTIVE LIST, IS NOT ENTITLED, UPON RECALL TO ACTIVE DUTY, TO FULL PAY BASED ON HIS RETIRED PAY BUT ONLY TO SUCH PAY AND ALLOWANCES AS WOULD BE PAYABLE TO ANY OTHER COMMISSIONED WARRANT OFFICER OF THE NAVY APPOINTED AFTER JUNE 30, 1922, WHOSE RECORD OF ACTIVE SERVICE WAS THE SAME.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 25, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 8, 1941, TRANSMITTING A LETTER FROM THE PAYMASTER GENERAL OF THE NAVY, DATED JUNE 30, 1941, AS FOLLOWS:

REFERENCE:

(A) ACT OF MAY 13, 1908 (35 STAT. 128) AS AMENDED BY THE ACT OF MAY 30, 1908 (35 STAT. 501).

(B) PARAGRAPH 12 SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF FEBRUARY 16, 1929 (45 STAT. 1186).

(C) DECISION OF THE COMPTROLLER GENERAL A-67898 DATED AUGUST 11, 1936 (ARTICLE 2142-15 BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA).

ENCLOSURE:

(A) COPY OF BUNAV LETTER NAV-324-RES 10156 DATED NOVEMBER 3, 1925.

(B) BUNAV LETTER 10156-135 NAV-327-MK DATED APRIL 23, 1941.

1. BOATSWAIN RAYMOND R. SMITH, USN, RETIRED, WAS APPOINTED A CHIEF BOATSWAIN FROM FEBRUARY 12, 1923, AT WHICH TIME HE HAD PRIOR SERVICE FOR PAY PURPOSES UNDER THE ACT OF JUNE 10, 1922, AMOUNTING TO 4 YEARS 4 MONTHS AND 16 DAYS. THE RECORD OF CHIEF BOATSWAIN SMITH WAS CERTIFIED AS CREDITABLE DURING FIRST 6 YEARS' COMMISSIONED SERVICE UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1922, ON NOVEMBER 10, 1925, BUT NO CERTIFICATE OF CREDITABLE RECORD WAS ISSUED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 16, 1929, AFTER HE COMPLETED 10 YEARS' COMMISSIONED SERVICE.

2. CHIEF BOATSWAIN SMITH WAS TRANSFERRED TO THE RETIRED LIST, UPON HIS OWN APPLICATION, AFTER COMPLETION OF 30 YEARS' SERVICE, UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, FROM OCTOBER 1, 1933, AT WHICH TIME HIS SERVICE FOR PAY PURPOSES ON THE ACTIVE LIST UNDER THE ACT OF JUNE 10, 1922, AMOUNTED TO 15 YEARS AND 4 DAYS. ON SEPTEMBER 30, 1933, HE WAS ENTITLED TO ACTIVE DUTY PAY OF $208.33 PER MONTH, COMPUTED AS THE PAY OF A CHIEF WARRANT OFFICER DURING FIRST 10 YEARS' COMMISSIONED SERVICE, WITH CREDITABLE RECORD, AND OVER 15 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES. HE WAS ADVANCED TO THE RANK OF LIEUTENANT ON THE RETIRED LIST FROM OCTOBER 1, 1933, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 21, 1930 (46 STAT. 793).

3. PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 13, 1908, CHIEF BOATSWAIN SMITH UPON RETIREMENT WAS ENTITLED TO 3/4 OF THE HIGHEST PAY OF HIS GRADE. THE COMPTROLLER GENERAL IN DECISION OF AUGUST 11, 1936, HELD THAT:

"STATUTES GIVING THE HIGHEST PAY OF HIS GRADE OR THE HIGHEST RETIRED PAY OF HIS GRADE HAVE BEEN HELD TO APPLY TO THE PAY GRADE OF THE OFFICER AND TO INCLUDE A MAXIMUM CREDIT FOR LENGTH OF SERVICE.' UNDER THE ABOVE INTERPRETATION CHIEF BOATSWAIN SMITH, IN COMPUTING HIS PAY ON THE RETIRED LIST, WAS ENTITLED TO COUNT PRIOR SERVICE AS AN ENLISTED MAN AND WARRANT OFFICER WHICH HE COULD NOT COUNT ON THE ACTIVE LIST. SINCE RETIREMENT HE HAS BEEN CREDITED WITH RETIRED PAY OF $187.50 PER MONTH, COMPUTED AS 3/4 OF THE ACTIVE DUTY PAY OF A CHIEF WARRANT OFFICER DURING FIRST 10 YEARS' COMMISSIONED SERVICE, WITH CREDITABLE RECORD, AND OVER 30 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES.

4. LIEUTENANT SMITH HAS BEEN CALLED TO ACTIVE DUTY AND IT IS RECOMMENDED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO THE RATE OF PAY AND ALLOWANCES TO WHICH HE IS ENTITLED ON THE ACTIVE LIST.

THE PROVISION OF LAW UNDER WHICH THE RETIRED PAY OF LIEUTENANT ( CHIEF BOATSWAIN) RAYMOND R. SMITH WAS COMPUTED IS CONTAINED IN THE ACT OF MAY 13, 1908, 35 STAT. 128, 34 U.S.C. 383, WHICH PROVIDES:

* * * WHEN AN OFFICER OF THE NAVY HAS BEEN THIRTY YEARS IN THE SERVICE, HE MAY, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE RETIRED LIST WITH THREE- FOURTHS OF THE HIGHEST PAY OF HIS GRADE: * * *

THE ABOVE-QUOTED PROVISION IS SPECIFICALLY APPLICABLE TO THE RETIREMENT, AND TO THE RETIRED PAY INCIDENT THERETO, OF OFFICERS OF THE NAVY, AND HAS NO EFFECT WHATEVER UPON THE ACTIVE DUTY PAY OF SUCH OFFICER WHEN RECALLED TO ACTIVE DUTY. THEIR ACTIVE DUTY PAY AND ALLOWANCES ARE GOVERNED AND DETERMINED BY OTHER PROVISIONS OF LAW SEPARATE AND DISTINCT FROM THE RETIREMENT STATUTE AND THE APPLICATION OF THE LATTER IS CLEARLY UNAUTHORIZED IN THE COMPUTATION OF SUCH ACTIVE DUTY PAY AND ALLOWANCES.

THE ACT OF JUNE 21, 1930, 46 STAT. 793, UNDER WHICH THE OFFICER WAS ADVANCED TO THE RANK OF LIEUTENANT ON THE RETIRED LIST DID NOT AUTHORIZE PAY OF THAT RANK. SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED, 37 U.S.C. 26, AS FURTHER AMENDED BY THE ACT OF JUNE 25, 1941, PUBLIC, NO. 132, 77TH CONGRESS, 55 STAT. 263, PROVIDES THAT RETIRED OFFICERS OF THE NAVY SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES. THE ONLY AUTHORIZED METHOD FOR COMPUTING THE FULL PAY AND ALLOWANCES OF A RETIRED OFFICER RECALLED TO ACTIVE DUTY IS TO BE FOUND IN THE STATUTES GOVERNING THE ACTIVE DUTY PAY AND ALLOWANCES OF OFFICERS ON THE ACTIVE LIST, IT APPEARING OBVIOUS THAT THE RETIREMENT PAY OF AN OFFICER AND THE SPECIFIC RETIREMENT ACT UNDER WHICH HE HAPPENS TO HAVE BEEN RETIRED CAN HAVE NO CONTROLLING EFFECT UPON HIS ACTIVE DUTY PAY, UNLESS RETIREMENT INVOLVED, ALSO, AN ADVANCEMENT IN RANK OTHER THAN HONORARY.

SECTION 1 OF THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, 37 U.S.C. 5, PROVIDES IN PERTINENT PART:

* * * COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST SHALL RECEIVE PAY AS FOLLOWS: DURING THE FIRST TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE SECOND PERIOD; AFTER TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE THIRD PERIOD; AFTER 20 YEARS OF COMMISSIONED SERVICE THE PAY OF THE FOURTH PERIOD; * * *

THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 37 U.S.C. 4, PROVIDES, IN PART:

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. * * *

IT APPEARING FROM THE RECORD PRESENTED THAT THE RETIRED CHIEF WARRANT OFFICER UPON DATE OF RECALL TO ACTIVE DUTY HAD BEEN ISSUED NO CERTIFICATE OF CREDITABILITY OF RECORD AFTER THE COMPLETION OF 10 YEARS' COMMISSIONED SERVICE UNDER THE ACT OF FEBRUARY 16, 1929, HIS ACTIVE DUTY PAY SHOULD BE ADJUSTED UPON THE BASIS OF THE SECOND PERIOD, INCREASED BY 25 PERCENTUM AS AN OFFICER APPOINTED ON OR AFTER JULY 1, 1922, WITH OVER 15 YEARS' COMMISSIONED SERVICE, $2,000 PER ANNUM, PLUS $500 INCREASE FOR LENGTH OF SERVICE. IN OTHER WORDS, HIS PAY AND ALLOWANCES WOULD BE EXACTLY THE SAME AS THAT OF ANY OTHER COMMISSIONED WARRANT OFFICER OF THE NAVY APPOINTED AFTER JUNE 30, 1922, WHOSE RECORD OF ACTIVE SERVICE WAS THE SAME.