B-20321, OCTOBER 8, 1941, 21 COMP. GEN. 301

B-20321, OCTOBER 8, 1941, 21 COMP. GEN. 301

PAY - RETIRED - COMPUTATION; LONGEVITY CREDITS THE PERCENTAGE RATE OF THE ACTIVE-DUTY PAY TO BE USED IN COMPUTING THE RETIRED PAY OF AN OFFICER RETIRED UNDER THE ACT OF JUNE 30, 1922, IS FIXED AT THE TIME OF RETIREMENT BY THE LENGTH OF COMMISSIONED SERVICE TO HIS CREDIT AT THAT TIME, AND, ALTHOUGH THE ACT OF JUNE 25, 1941, AUTHORIZES THE COUNTING OF ACTIVE DUTY AFTER RETIREMENT IN COMPUTING THE TIME BY WHICH THE APPLICABLE PERCENTAGE RATE IS TO BE MULTIPLIED, ACTIVE DUTY AFTER RETIREMENT MAY NOT BE COUNTED IN DETERMINING THE PERCENTAGE RATE. IN COMPUTING THE LENGTH OF SERVICE BY WHICH THE APPLICABLE PERCENTAGE RATE IS TO BE MULTIPLIED TO DETERMINE THE RETIRED PAY OF AN OFFICER UNDER THE ACT OF JUNE 25, 1941, A FRACTIONAL YEAR'S COMMISSIONED SERVICE PRIOR TO RETIREMENT MAY BE ADDED TO A FRACTIONAL YEAR'S COMMISSIONED SERVICE SUBSEQUENT TO RETIREMENT, AND IF THIS RESULTS IN A FRACTIONAL YEAR'S SERVICE OF 6 MONTHS OR MORE, SUCH FRACTION IS TO BE CONSIDERED A FULL YEAR.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COL. W. M. DIXON, U.S. ARMY, OCTOBER 8, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 16, 1941, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE SUPPLEMENTAL PAY ROLL SUBMITTED THEREWITH CONSTITUTING THE CLAIMS FOR ADDITIONAL RETIRED PAY UNDER THE ACT OF JUNE 25, 1941, PUBLIC NO. 132, 77TH CONGRESS, ST SESSION, OF LT. COL. HARRY W. STEPHENSON, U.S. ARMY, RETIRED, IN THE SUM OF $63.71, AND OF CAPT. ROY F. HALL, U.S. ARMY, RETIRED, IN THE SUM OF $7.20.

SECTION 2 OF THE ACT OF JUNE 25, 1941, PUBLIC 132, 55 STAT. 263, PROVIDES:

AT THE END OF SECTION 17 (OF THE JOINT SERVICE PAY ACT OF 1922) INSERT THE FOLLOWING: "THAT IN THE COMPUTATION OF THE RETIRED PAY OF OFFICERS HERETOFORE OR HEREAFTER RETIRED WITH PAY AT THE RATE OF 2 1/2 OR 3 PERCENTUM OF THE ACTIVE-DUTY PAY RECEIVED BY THEM AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY ON THE ACTIVE LIST, NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SAID ACTIVE-DUTY PAY, ACTIVE DUTY PERFORMED BY SUCH RETIRED OFFICERS SUBSEQUENT TO THE DATE OF THEIR RETIREMENT SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE INCREASES IN THEIR RETIRED PAY. THESE INCREASES SHALL BE AT THE RATE OF 2 1/2 OR 3 PERCENTUM FOR EACH YEAR OF ACTIVE DUTY AND A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS: PROVIDED FURTHER, THAT THE INCREASED RETIRED PAY OF SUCH RETIRED OFFICERS SHALL IN NO CASE EXCEED 75 PERCENTUM OF THE ACTIVE-DUTY PAY AS AUTHORIZED BY EXISTING LAW: PROVIDED FURTHER, THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THE PASSAGE OF THIS ACT.'

REFERENCE TO THE OFFICIAL ARMY REGISTER, AT PAGE 1211, SHOWS THAT LT. COL. STEPHENSON WAS PLACED ON THE RETIRED LIST OF THE ARMY ON NOVEMBER 26, 1922,"AFTER 13 YEARS SERVICE," UNDER THE ACT OF JUNE 30, 1922, 42 STAT. 722, 723, WHICH PROVIDED FOR THE REDUCTION OF THE COMMISSIONED PERSONNEL OF THE ARMY, AS FOLLOWS:

* * * OFFICERS SELECTED FOR ELIMINATION OF LESS THAN TEN YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD HEREIN PROVIDED FOR, BE DISCHARGED WITH ONE YEAR'S PAY; OR THOSE OF MORE THAN TEN YEARS AND LESS THAN TWENTY YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD, BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SUCH COMMISSIONED SERVICE; OR THOSE OF MORE THAN TWENTY YEARS' COMMISSIONED SERVICE MAY, UPON RECOMMENDATION OF THE BOARD, BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 3 PERCENTUM OF THEIR ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SUCH COMMISSIONED SERVICE, NOT EXCEEDING 75 PERCENTUM. * * * PROVIDED FURTHER, THAT COMMISSIONED SERVICE FOR THE PURPOSES OF THIS ACT SHALL INCLUDE ONLY ACTIVE COMMISSIONED SERVICE IN THE ARMY PERFORMED WHILE UNDER APPOINTMENT FROM THE UNITED STATES GOVERNMENT WHETHER IN THE REGULAR, PROVISIONAL, OR TEMPORARY FORCES: * * *

THIS STATUTE MAKES PROVISION FOR THREE SEPARATE CLASSES OF OFFICERS, SELECTED FOR ELIMINATION FROM THE ARMY, ONE CLASS, WITH LESS THAN 10 YEARS' COMMISSIONED SERVICE, TO BE DISCHARGED WITH 1 YEAR'S PAY; ONE CLASS, WITH MORE THAN 10 YEARS AND LESS THAN 20 YEARS' COMMISSIONED SERVICE TO BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 2 1/2 PERCENTUM OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF THEIR COMMISSIONED SERVICE; AND, ONE CLASS, WITH MORE THAN 20 YEARS' COMMISSIONED SERVICE TO BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT 3 PERCENTUM OF THEIR ACTIVE DUTY PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF THEIR COMMISSIONED SERVICE. WHEN SELECTED FOR ELIMINATION FROM THE ARMY MAJOR (RANK ADVANCED TO LIEUTENANT COLONEL UNDER THE ACT OF JUNE 21, 1930) STEPHENSON HAD SERVED 3 YEARS, 10 MONTHS, AND 21 DAYS AS MIDSHIPMAN AT THE NAVAL ACADEMY, AND 13 YEARS, 4 MONTHS, AND 1 DAY, AS A COMMISSIONED OFFICER. HIS ACTIVE DUTY PAY AT TIME OF RETIREMENT WAS THAT OF A MAJOR, FOURTH PAY PERIOD, WITH LONGEVITY OF OVER 15 YEARS, OR $312.50 PER MONTH. HE WAS RECALLED TO ACTIVE DUTY ON APRIL 3 1923, AND SERVED UNTIL JUNE 15, 1930, OR FOR A PERIOD OF 7 YEARS, 2 MONTHS, AND 13 DAYS. BY VIRTUE OF THE ACT OF MAY 26, 1928, 45 STAT. 774, HIS ACTIVE SERVICE SINCE RETIREMENT INCREASED HIS ACTIVE DUTY PAY TO PRESCRIBED FOR MAJOR, FIFTH PAY PERIOD, WITH LONGEVITY OF OVER 24 YEARS, OR AT THE RATE OF $408.33, PER MONTH. THE PAY ROLL SUBMITTED SHOWS THAT HE WAS CREDITED UNDER THE ACT OF JUNE 25, 1941, WITH AN INCREASE FROM 32 1/2 PERCENT TO 50 PERCENT IN THE PERCENTAGE OF HIS ACTIVE DUTY PAY. HE CLAIMS A FURTHER INCREASE FROM 50 PERCENT TO 63 PERCENT OF HIS ACTIVE DUTY PAY, BEING (1) THE DIFFERENCE BETWEEN 2 1/2 PERCENT AND 3 PERCENT, AS FIXED BY THE ACT UNDER WHICH HE WAS RETIRED, AND (2), THE DIFFERENCE BETWEEN 20 AND 21 YEARS' COMMISSIONED SERVICE, BY REASON OF INCLUDING IN THE COMPUTATION OF THE PERCENTAGE INCREASE THE TOTAL MONTHS RESULTING IN A FRACTIONAL YEAR OF SERVICE ON THE ACTIVE LIST AND ON ACTIVE DUTY AFTER RETIREMENT WHICH TOTAL EXCEEDS SIX MONTHS.

THE AMENDATORY ACT MAKES NO CHANGE IN THE ACT OF JUNE 30, 1922, UNDER WHICH THE CLAIMANT WAS RETIRED. AT THE TIME HE WAS RETIRED HE HAD TO HIS CREDIT 13 COMPLETE YEARS OF COMMISSIONED SERVICE, AND UNDER THE CONDITIONS FOR THE SECOND CLASS HIS PERCENTAGE RATE WAS SPECIFICALLY FIXED AT 2 1/2 PERCENT. THE ACT OF JUNE 25, 1941, AUTHORIZES THE COUNTING OF ACTIVE DUTY PERFORMED SUBSEQUENT TO DATE OF RETIREMENT IN THE COMPUTATION OF THE PERCENTAGE INCREASE OF HIS ACTIVE DUTY PAY, BUT THE PERCENTAGE RATE WHICH WAS FIXED BY CONDITIONS OF THE ACT UNDER WHICH HE WAS RETIRED IS NOT CHANGED. THE RATE OF 3 PERCENT PRESCRIBED FOR OFFICERS RETIRED WITH OVER 20 YEARS' SERVICE IS NOT APPLICABLE IN THE COMPUTATION OF THE CLAIMANT'S RETIRED PAY. SEE 8 COMP. GEN. 87; STEPHENSON V. UNITED STATES, 81 CT.CLS. 637.

THE STATUTE PROVIDES THAT ACTIVE DUTY PERFORMED SUBSEQUENT TO DATE OF RETIREMENT BY OFFICERS RETIRED WITH PAY AT THE RATE OF 2 1/2 OR 3 PERCENTUM OF THEIR ACTIVE DUTY PAY, SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE INCREASES IN THEIR RETIRED PAY, AND IT IS FURTHER PROVIDED THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS. AS A CONDITION PRECEDENT TO THE STATUTE BECOMING OPERATIVE AS TO A PARTICULAR OFFICER, HE MUST HAVE BEEN ASSIGNED TO ACTIVE DUTY SUBSEQUENT TO THE DATE OF HIS RETIREMENT. THE PRACTICAL EFFECT THEN IS TO ADD THE COMMISSIONED SERVICE PERFORMED SUBSEQUENT TO RETIREMENT, TO THE COMMISSIONED SERVICE PERFORMED PRIOR TO RETIREMENT, AND INCLUDE IN THE COMPUTATION OF THE PERCENTAGE INCREASE OF THEIR RETIRED PAY, ALL ACTIVE SERVICE PERFORMED EITHER BEFORE OR AFTER RETIREMENT, AND A FRACTIONAL YEAR OF 6 MONTHS OR MORE, OF SUCH TOTAL SERVICE SHALL BE CONSIDERED A FULL YEAR IN COMPUTING THE NUMBER OF YEARS. GIVING APPLICATION TO THIS RULE CLAIMANT'S COMMISSIONED SERVICE BEFORE RETIREMENT OF 13 YEARS, 4 MONTHS, AND 1 DAY, ADDED TO HIS COMMISSIONED SERVICE SUBSEQUENT TO RETIREMENT OF 7 YEARS, 2 MONTHS, AND 13 DAYS, MAKES A TOTAL OF 20 YEARS, 6 MONTHS, AND 14 DAYS. UNDER THE PROVISIONS OF THE STATUTE THE FRACTIONAL YEAR BEING MORE THAN 6 MONTHS IS CONSIDERED A FULL YEAR, MAKING 21 YEARS OF SERVICE. HE WAS, THEREFORE, ENTITLED TO RECEIVE AS RETIRED PAY 2 1/2 PERCENT MULTIPLIED BY 21, OR 52 1/2 PERCENT OF $408.33, BEING $214.37 PER MONTH. HAVING BEEN CREDITED RETIRED PAY AT THE RATE OF $204.16 PER MONTH FOR THE PERIOD JUNE 25 TO JULY 31, 1941, THE CLAIMANT IS ENTITLED TO PAYMENT ON THIS VOUCHER IN THE AMOUNT OF $12.25.

THE OFFICIAL ARMY REGISTER, 1941, AT PAGE 1068, SHOWS THE SERVICES OF CAPT. ROY F. HALL, TO BE AS FOLLOWS:

CAPT. INF. SEC. O.R.C. 15 AUG. 17; ACCEPTED 15 AUG. 17; ACTIVE DUTY 15 AUG. 17; VACATED 8 OCT. 20.--- PVT., CORP. AND SGT. CO. C 4 INF. 6 MAY 104 TO 5 MAY 107; CAPT. OF INF. 1 JULY 20; ACCEPTED 8 OCT. 20; RETIRED 1 JUNE 29; A.D. 2 JUNE 29 TO 3 JUNE 29. MARGINAL NOTE SHOWS HE WAS RETIRED ,AFTER 11 YEARS' SERVICE. (SEC. 24B, ACT JUNE 4, 20) "

THE ARMY REORGANIZATION ACT OF JUNE 4, 1920, 41 STAT. 759, 773, PROVIDES:

* * * WHENEVER AN OFFICER IS PLACED IN CLASS B, A BOARD OF NOT LESS THAN THREE OFFICERS SHALL BE CONVENED TO DETERMINE WHETHER SUCH CLASSIFICATION IS DUE TO HIS NEGLECT, MISCONDUCT, OR AVOIDABLE HABITS. IF THE FINDING IS AFFIRMATIVE, HE SHALL BE DISCHARGED FROM THE ARMY, IF NEGATIVE, HE SHALL BE PLACED ON THE UNLIMITED RETIRED LIST WITH PAY AT THE RATE OF 2 1/2 PERCENTUM OF HIS ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF COMMISSIONED SERVICE, OR SERVICE WHICH UNDER THE PROVISIONS OF THIS ACT IS COUNTED AS ITS EQUIVALENT, UNLESS HIS TOTAL COMMISSIONED SERVICE OR EQUIVALENT SERVICE SHALL BE LESS THAN TEN YEARS, IN WHICH CASE HE SHALL BE HONORABLY DISCHARGED WITH ONE YEAR'S PAY. * * *

THE CLAIMANT HAD TO HIS CREDIT AT TIME OF RETIREMENT 11 YEARS, 9 MONTHS, AND 17 DAYS' COMMISSIONED SERVICE. HE WAS ASSIGNED TO ACTIVE DUTY SUBSEQUENT TO RETIREMENT FROM JUNE 2 TO 3, 1929, BEING FOR 2 DAYS. GIVING APPLICATION TO THE ABOVE-CITED RULE, THE 2 DAYS' ACTIVE DUTY SUBSEQUENT TO RETIREMENT ADDED TO THE 11 YEARS, 9 MONTHS, AND 17 DAYS' ACTIVE DUTY PRIOR TO RETIREMENT, MAKES A TOTAL SERVICE OF 11 YEARS, 9 MONTHS, AND 19 DAYS, AND THE FRACTIONAL YEAR, BEING IN EXCESS OF 6 MONTHS, IS CONSIDERED AS A YEAR, ENTITLING HIM TO 12 TIMES 2 1/2 PERCENT, OR 30 PERCENT OF $240, HIS ACTIVE DUTY PAY AT TIME OF RETIREMENT, OR RETIRED PAY AT THE RATE OF $72 PER MONTH. HAVING BEEN CREDITED WITH RETIRED PAY AT THE RATE OF $66 PER MONTH FOR THE PERIOD JUNE 25 TO JULY 31, 1941, HE IS ENTITLED TO ADDITIONAL RETIRED PAY IN THE AMOUNT OF $7.20.

IF OTHERWISE CORRECT PAYMENT IS AUTHORIZED ON THE VOUCHER RETURNED HEREWITH IN THE RESPECTIVE AMOUNTS OF $12.25 AND $7.20.