B-24559, JUNE 5, 1942, 21 COMP. GEN. 1097

B-24559, JUNE 5, 1942, 21 COMP. GEN. 1097

PAY PERIOD OF COMMISSIONED WARRANT OFFICER AS AFFECTED BY CERTIFICATE OF CREDITABLE RECORD ISSUED AFTER RETIREMENT A MARINE CORPS COMMISSIONED WARRANT OFFICER WITH LESS THAN 3 YEARS' COMMISSIONED SERVICE WHO WAS RETIRED PRIOR TO THE DATE OF THE ACT OF FEBRUARY 16, 1929, AMENDING THE PROVISIONS OF THE ACT OF JUNE 10, 1922, WITH RESPECT TO PERIOD PAY OF COMMISSIONED WARRANT OFFICERS AS AFFECTED BY CERTIFICATES OF CREDITABLE RECORD, AND WHO, UPON BEING CALLED TO ACTIVE DUTY IN DECEMBER 1941, WAS ISSUED A CERTIFICATE OF CREDITABLE RECORD COVERING HIS SERVICE AS OF THE TIME OF RETIREMENT, IS ENTITLED UNDER THE ACT OF FEBRUARY 16, 1929, WHILE ON ACTIVE DUTY TO THE SUBSISTENCE AND RENTAL ALLOWANCES OF THE SECOND PERIOD BASED ON SUCH CERTIFICATE. COMP. GEN. 507 AND 21 ID. 181, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. TOM E. THRASHER, JR., U.S. MARINE CORPS, JUNE 5, 1942:

THERE WAS RECEIVED BY REFERENCE FROM THE PAYMASTER, U.S. MARINE CORPS, YOUR LETTER OF MARCH 9, 1942, TRANSMITTING A VOUCHER IN FAVOR OF CHIEF QUARTERMASTER CLERK CYPRIAN P. LANCASTER, U.S. MARINE CORPS, RETIRED, FOR ACTIVE DUTY ALLOWANCES OF THE SECOND PAY PERIOD BASED UPON A CERTIFICATE OF CREDITABLE RECORD ISSUED FEBRUARY 28, 1942.

IT APPEARS FROM THE OFFICIAL NAVY REGISTER DATED JULY 1, 1941, PAGE 670, THAT LANCASTER WAS COMMISSIONED CHIEF QUARTERMASTER CLERK WITH RANK FROM JUNE 10, 1926, AND AFTER COMPLETING MORE THAN 21 YEARS' COMBINED SERVICE AS AN ENLISTED MAN, WARRANT OFFICER, AND CHIEF QUARTERMASTER CLERK WAS RETIRED APRIL 10, 1928, FOR INCAPACITY RESULTING FROM AN INCIDENT OF SERVICE. HAVING COMPLETED LESS THAN 3 YEARS' COMMISSIONED SERVICE AT THE TIME OF RETIREMENT HE WAS CREDITED RETIRED PAY AT THE RATE OF $138.75 PER MONTH REPRESENTING THREE-FOURTHS OF $185, THE PAY OF A WARRANT OFFICER AFTER 20 YEARS' SERVICE, SAVED TO HIM UNDER THE FIRST SECTION OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 37 U.S.C. 5.

THE SUPPLEMENTAL VOUCHER IS STATED FOR $47.87, REPRESENTING ADDITIONAL SUBSISTENCE ALLOWANCE AT 60 CENTS PER DAY FOR THE PERIOD DECEMBER 18, 1941, TO FEBRUARY 28, 1942, AND $4.07, REPRESENTING RENTAL ALLOWANCE FOR THE SAME PERIOD BASED UPON THE DIFFERENCE BETWEEN ACTIVE DUTY ALLOWANCES RECEIVED AND ACTIVE DUTY ALLOWANCES OF THE SECOND GRADE, AS AFFECTED BY THE MAXIMUM PAY AND ALLOWANCES PAYABLE TO A COMMISSIONED WARRANT OFFICER WITH LESS THAN 3 YEARS' COMMISSIONED SERVICE. IN THIS CONNECTION IT IS NOTED FROM A TRANSCRIPT OF THE OFFICER'S PAY ACCOUNT FOR THE PERIOD FROM DECEMBER 18 TO DECEMBER 31, 1941, THE LATEST AVAILABLE ROLL, THAT LANCASTER WAS CREDITED THE ALLOWANCES OF THE SECOND PERIOD AND INFORMAL INFORMATION FROM THE OFFICE OF THE PAYMASTER, U.S. MARINE CORPS, IS TO THE EFFECT THAT AFTER SIMILAR CREDITS WERE MADE FOR THE MONTHS OF JANUARY AND FEBRUARY 1942, AN ADJUSTMENT WAS MADE BY WHICH THE DIFFERENCE BETWEEN ALLOWANCES OF THE FIRST AND SECOND PERIOD WAS CARRIED FORWARD AS OF MARCH 1, 1942, AS AN OVERPAYMENT AND PRESUMABLY CHECKED FROM HIS MARCH PAY.

IMMEDIATELY PRIOR TO THIS OFFICER'S RETIREMENT APRIL 10, 1928, HIS PAY AS CHIEF QUARTERMASTER CLERK WAS GOVERNED BY SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THE ACT OF JUNE 10, 1926, 44 STAT. 725, 34 U.S.C. 642.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, IN EFFECT AT THE TIME OF LANCASTER'S RETIREMENT PROVIDED, IN PERTINENT PART:

* * * COMMISSIONED WARRANT OFFICERS ON THE ACTIVE LIST WITH CREDITABLE RECORDS SHALL, AFTER SIX YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE SECOND PERIOD, AND AFTER TWELVE YEARS' COMMISSIONED SERVICE, RECEIVE THE PAY OF THE THIRD PERIOD: PROVIDED, THAT A COMMISSIONED WARRANT OFFICER PROMOTED FROM THE GRADE OF WARRANT OFFICER SHALL SUFFER NO REDUCTION OF PAY BY REASON OF SUCH PROMOTION. * * *

UNDER SECTIONS 9 AND 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 630, THE PAY OF A WARRANT OFFICER OF THE MARINE CORPS WITH OVER 20 YEARS WAS $185 PER MONTH AND RENTAL AND SUBSISTENCE ALLOWANCES WERE THOSE PROVIDED FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD. THIS BEING THE STATE OF THE LAW AT THE TIME OF RETIREMENT, A CERTIFICATE OF CREDITABLE RECORD AS OF THAT DATE OR AS OF ANY DATE FOLLOWING HIS APPOINTMENT AS CHIEF QUARTERMASTER CLERK WOULD NOT HAVE AFFECTED HIS PAY. HOWEVER, UPON CALL TO ACTIVE DUTY DECEMBER 18, 1941, THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1187, 37 U.S.C. (SUPP.) 5, HAVING INTERVENED, THE QUESTION ARISES AS TO THE EFFECT OF A CERTIFICATE OF THE SECRETARY OF THE NAVY DATED FEBRUARY 28, 1942, AS FOLLOWS: FROM: THE SECRETARY OF THE NAVY. TO: CHIEF QUARTERMASTER CLERK CYPRIAN P. LANCASTER, U.S.

MARINE CORPS, RETIRED. VIA: THE COMMANDANT, U.S. MARINE CORPS. SUBJECT: CERTIFICATE OF CREDITABLE RECORD.

1. THE DEPARTMENT HEREBY CERTIFIES THAT UPON TRANSFER TO THE RETIRED LIST OF THE MARINE CORPS AS A CHIEF WARRANT OFFICER ON 10 APRIL 1928, YOUR RECORD WAS CREDITABLE WITHIN THE MEANING OF THE PROVISIONS OF THE ACT OF CONGRESS APPROVED 16 FEBRUARY 1929.

THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, 1187, 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 TWENTY YEARS OF COMMISSIONED SERVICE, THE PAY OF THE FOURTH PERIOD.

IN DECISION OF NOVEMBER 18, 1936, 16 COMP. GEN. 507, IT WAS HELD, QUOTING FROM THE SYLLABUS:

A COMMISSIONED WARRANT OFFICER NOT ISSUED A CERTIFICATE OF CREDITABLE RECORD, WHO, BECAUSE OF THE SAVING CLAUSE IN THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, CONTINUES IN RECEIPT OF WARRANT OFFICER'S PAY, IS ENTITLED ONLY TO RENTAL AND SUBSISTENCE ALLOWANCES OF A WARRANT OFFICER, THOSE OF THE FIRST PERIOD.

IN DECISION B-12332 DATED OCTOBER 22, 1940, IT WAS HELD THAT ACTIVE DUTY AFTER RETIREMENT WOULD NOT BE SERVICE ON THE ACTIVE LIST AND A CERTIFICATE THAT SUCH ADDITIONAL SERVICE AFTER RETIREMENT WAS CREDITABLE WOULD NOT WARRANT A CHANGE IN THE BASE OR PERIOD PAY OF A CHIEF WARRANT OFFICER UPON WHICH HIS RETIRED PAY WAS FIXED UPON RETIREMENT. SEE ALSO DECISION B- 12332, DATED AUGUST 26, 1941, 21 COMP. GEN. 181.

THE FACTS IN THE PRESENT CASE ARE TO BE DISTINGUISHED FROM THOSE CONSIDERED IN THE CASES ABOVE CITED IN THAT THE PRESENT CASE DOES NOT INVOLVE THE COUNTING OF SERVICE PERFORMED SUBSEQUENT TO RETIREMENT NOR DO THEY COMPREHEND THE CASE OF A COMMISSIONED WARRANT OFFICER WHOSE PAY AT THE TIME OF RETIREMENT WOULD HAVE BEEN AFFECTED ONE WAY OR THE OTHER BY THE ISSUANCE OR NONISSUANCE OF A CERTIFICATE OF CREDITABLE RECORD. THESE CIRCUMSTANCES, THE TIME EXPIRING BETWEEN THE DATE OF SUCH CALL TO ACTIVE DUTY, DECEMBER 18, 1941, AND FEBRUARY 28, 1942, DATE OF ISSUANCE OF THE CERTIFICATE OF CREDITABLE RECORD, IS NOT THEREFORE IN FACT A RETROACTIVE DETERMINATION SUBSEQUENT TO EXAMINATION BY A BOARD OF OFFICERS WHICH HAD NOT RECOMMENDED HIM AS HAVING A CREDITABLE RECORD ( JAHNKE'S CASE, 74 CT.CLS. 341, AND MCEVOY'S CASE, 74 CT.CLS. 691), BUT CONSTITUTES, IN EFFECT, A PROSPECTIVE DETERMINATION FROM DATE OF CALL TO ACTIVE DUTY AFFECTED ONLY BY THE REASONABLE TIME REQUIRED FOR ITS ISSUANCE DUE TO NORMAL ADMINISTRATIVE PROCEDURE. YOU ARE AUTHORIZED TO PAY THE VOUCHER, RETURNED HEREWITH, TO THE EXTENT THAT IT IS OTHERWISE CORRECT.