B-27520, JANUARY 7, 1943, 22 COMP. GEN. 603

B-27520: Jan 7, 1943

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IS FOR COMPUTATION ON THE BASIS OF THE PAY PROVIDED BY THE SAID PAY READJUSTMENT ACT. 1943: THERE WAS RECEIVED BY ENDORSEMENT FROM THE CHIEF OF FINANCE. IT APPEARS THAT THE ENLISTED MAN WAS RETIRED MAY 31. NOTATION ON THE SUPPLEMENTAL VOUCHER INDICATES THAT HE WAS PAID RETIRED PAY AND ALLOWANCES FOR THE MONTH OF JUNE. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT PLUS A MONEY ALLOWANCE OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND $6.25 PER MONTH IN LIEU OF QUARTERS. THE MONTHLY BASE PAY OF AN ENLISTED MAN OF THE FIRST GRADE IS FIXED AT $138.

B-27520, JANUARY 7, 1943, 22 COMP. GEN. 603

PAY - RETIRED - ENLISTED MEN RETIRED UNDER ACT OF JUNE 30, 1941 THE RETIRED PAY OF AN ARMY ENLISTED MAN WHOSE RETIREMENT ON MAY 31, 1942, UNDER THE ACT OF JUNE 30, 1941, BECAME EFFECTIVE FOR RETIRED PAY PURPOSES ON JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, IS FOR COMPUTATION ON THE BASIS OF THE PAY PROVIDED BY THE SAID PAY READJUSTMENT ACT--- WITHOUT CREDIT FOR MONEY ALLOWANCES FOR MEN ON THE RETIRED LIST--- AS THOUGH THE PAY RATES CONTAINED THEREIN APPLICABLE TO AN ENLISTED MAN OF HIS GRADE ACTUALLY HAD BEEN IN EFFECT FOR SIX MONTHS PRIOR TO HIS RETIREMENT, RATHER THAN THAT IT BE COMPUTED ON THE BASIS OF THE AVERAGE PAY ACTUALLY RECEIVED FOR THE SIX MONTHS PRIOR TO RETIREMENT, PLUS THE MONEY ALLOWANCES.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. CARL WITCHER, U.S. ARMY, JANUARY 7, 1943:

THERE WAS RECEIVED BY ENDORSEMENT FROM THE CHIEF OF FINANCE, YOUR LETTER OF JULY 8, 1942, TRANSMITTING A SUPPLEMENTAL VOUCHER FOR 68 CENTS IN FAVOR OF HONDO D. JONES, NO. 6,222,233, MASTER SERGEANT, UNITED STATES ARMY, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY AND ALLOWANCES RECEIVED AND THOSE COMPUTED ON THE BASIS OF THE PAY READJUSTMENT ACT OF 1942, FOR THE MONTH OF JUNE, 1942.

IT APPEARS THAT THE ENLISTED MAN WAS RETIRED MAY 31, 1942, BY REASON OF PHYSICAL DISABILITY AFTER 20 YEARS' SERVICE AND HAD SERVED AT LEAST SIX MONTHS IN THE GRADE OF MASTER SERGEANT PRECEDING HIS RETIREMENT. NOTATION ON THE SUPPLEMENTAL VOUCHER INDICATES THAT HE WAS PAID RETIRED PAY AND ALLOWANCES FOR THE MONTH OF JUNE, 1942 IN THE AMOUNT OF $133.87 ON VOUCHER 5346 OF YOUR JULY, 1942 ACCOUNTS, COMPUTED UNDER PAY LAWS IN OPERATION PRIOR TO JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 359.

SECTIONS 2 AND 3 OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, PROVIDE:

SEC. 2. AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST.

SEC. 3. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT PLUS A MONEY ALLOWANCE OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND $6.25 PER MONTH IN LIEU OF QUARTERS, FUEL AND LIGHT: PROVIDED, THAT THE MONEY ALLOWANCES OF ENLISTED MEN OF THE PHILIPPINE SCOUTS PLACED ON THE RETIRED LIST UNDER THIS ACT SHALL BE THE SAME AS THOSE HERETOFORE OR FROM TIME TO TIME HEREAFTER PRESCRIBED BY THE SECRETARY OF WAR UNDER EXISTING LAW FOR ENLISTED MEN OF THAT ORGANIZATION RETIRED AFTER THIRTY YEARS OF SERVICE.

UNDER SECTION 12 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 895, THE ACTIVE DUTY PAY OF A MASTER SERGEANT, FIRST CLASS, PLUS 25 PERCENTUM INCREASE FOR OVER 20 YEARS' SERVICE, EQUALS $157.50 A MONTH, AND ON THE ASSUMPTION THAT JONES RECEIVED PAY AT THAT RATE FOR SIX MONTHS PRIOR TO MAY 31, 1942, SUCH RATE WOULD BE THE AVERAGE MONTHLY PAY TO BE USED IN COMPUTING HIS RETIRED PAY UNDER SECTION 3 OF THE ACT OF JUNE 30, 1941, WHICH AMOUNT, PLUS $15.75 ALLOWANCES THEREIN ALSO PROVIDED, WOULD EQUAL $133.87 PER MONTH.

UNDER SECTION 9 OF THE SAID ACT OF JUNE 16, 1942, 56 STAT. 363, PUBLIC LAW 607, THE MONTHLY BASE PAY OF AN ENLISTED MAN OF THE FIRST GRADE IS FIXED AT $138. ENLISTED MEN PAID UNDER THE PROVISIONS OF SECTION 9 ARE ENTITLED TO RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF THEIR GRADE FOR EACH THREE YEARS OF SERVICE. THE MONTHLY PAY OF AN ENLISTED MAN OF THE FIRST GRADE WITH 20 YEARS' SERVICE UNDER SECTION 9 OF THE ACT OF JUNE 16, 1942, WOULD AMOUNT TO $179.40, CONSISTING OF $138 BASE PAY PLUS 30 PERCENTUM THEREOF AS A LONGEVITY INCREASE. ON THE ASSUMPTION THAT THE AVERAGE ACTIVE DUTY PAY FOR THE LAST SIX MONTHS' SERVICE OF AN ENLISTED MAN RETIRED AFTER JUNE 1, 1942, AND ENTITLED TO THE RETIREMENT BENEFITS OF THE ACT OF JUNE 30, 1941, AMOUNTS TO $179.40 PER MONTH, THE RETIRED PAY WOULD BE $134.55 PER MONTH. THE QUESTION PRESENTED IS WHETHER JONES IS ENTITLED TO HAVE HIS RETIRED PAY THUS COMPUTED ON THE BASIS OF PAY PROVIDED IN THE ACT OF JUNE 16, 1942.

IT HAS BEEN ESTABLISHED FOR MANY YEARS THAT WHEN ENLISTED MEN'S RETIRED PAY IS BASED ON THE PAY OF THE RANK ON WHICH THEY WERE RETIRED, ANY CHANGE IN THE PAY OF THE RANK FOR ACTIVE ENLISTED MEN APPLIES TO THE RETIRED PAY OF RETIRED ENLISTED MEN OF THE SAME RANK. 20 COMP. GEN. 213, 216. HOWEVER, UNDER THE ACT OF JUNE 30, 1941, RETIRED PAY IS NOT BASED UPON THE RANK HELD BY THE ENLISTED MAN AT THE TIME OF RETIREMENT BUT IS COMPUTED ON A PERCENTUM "OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT PLUS A MONEY ALLOWANCE OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND $6.25 PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT.'

OTHER PERTINENT PROVISIONS OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 367, 369, ARE AS FOLLOWS:

SEC. 15. ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN NOW ON THE RETIRED LIST OR DRAWING RETAINER PAY, OR PERSONNEL IN AN EQUIVALENT STATUS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT.

SEC. 19. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: * * *

THE ACT OF JUNE 10, 1922 (42 STAT. 625), AS AMENDED, SUBSECTIONS 12 (A), (B), AND (C), OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (54 STAT. 885), SECTION 18 OF THE ACT OF MARCH 7, 1942 ( PUBLIC LAW 490, SEVENTY- SEVENTH CONGRESS), AND SECTION 8 OF THE SERVICE EXTENSION ACT OF 1941 ( PUBLIC LAW 213, SEVENTY-SEVENTH CONGRESS, APPROVED AUGUST 18, 1941), AND THOSE PORTIONS OF THE ACT OF MARCH 2, 1907 (34 STAT. 1217), AND OF THE ACT OF JUNE 30, 1941 ( PUBLIC LAW 140, SEVENTY SEVENTH CONGRESS), WHICH AUTHORIZE ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST, AND ALL OTHER LAWS AND PARTS OF LAWS WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THIS ACT, ARE HEREBY REPEALED: * * *

THE PROVISIONS OF THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942.

THE PROVISIONS OF THE ACT OF JUNE 16, 1942, WERE EFFECTIVE AS OF JUNE 1, 1942, WHICH DATE WAS ALSO THE BEGINNING DATE OF JONES' RETIREMENT PAY, AND SINCE THE PRIOR PAY LAWS WHICH FORM THE BASIS FOR ARRIVING AT THE AVERAGE PAY FOR RETIREMENT PAY UNDER THE ACT OF JUNE 30, 1941, WERE REPEALED AS OF JUNE 1, 1942, INCLUDING PROVISIONS WHICH AUTHORIZED ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST, HE WAS NOT THEN IN RECEIPT OF OR ENTITLED TO RETIRED PAY AND ALLOWANCE UNDER THE REPEALED PROVISIONS SAVED FROM REDUCTION BY THE SAVING CLAUSES IN SECTIONS 15 AND 19. HOWEVER, IT SEEMS EVIDENT THAT THE PAY PROVISIONS OF THE ACT OF JUNE 16, 1942, REASONABLY WERE INTENDED TO APPLY IN COMPUTING THE RETIRED PAY ON AND AFTER JUNE 1, 1942, OF ENLISTED MEN RETIRED PRIOR TO JUNE 1, 1942, UNDER THE ACT OF JUNE 30, 1941, IN THOSE CASES WHERE COMPUTATION UNDER THE PRIOR LAWS, INCLUDING THE REPEALED ALLOWANCES, RESULTS IN LESSER PAY. OTHERWISE EFFECT WOULD NOT BE GIVEN THE EXPRESS PROVISION OF SECTION 15 OF THE ACT OF JUNE 16, 1942, THAT RETIRED ENLISTED MEN SHALL HAVE THEIR RETIRED PAY "COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT.' THE ONLY ACTIVE PAY WHICH JONES LEGALLY COULD HAVE RECEIVED DURING THE SIX MONTHS PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT WAS AT PAY RATES WHICH WERE REPEALED AS OF JUNE 1, 1942. IN THIS CONNECTION, IT IS TO BE NOTED THAT THE ACT OF JUNE 30, 1941, NOT ONLY CONSTITUTED THE LAW UNDER WHICH HE WAS AUTHORIZED TO BE RETIRED BUT, ALSO, WAS THE LAW WHICH SET UP THE BASIS FOR COMPUTATION OF HIS RETIRED PAY, I.E., A PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT. WHILE THERE MAY BE NO LITERAL COMPUTATION OF HIS RETIRED PAY STRICTLY AS AUTHORIZED BY THE ACT OF JUNE 30, 1941, ON THE BASIS OF PAY PROVIDED IN THE ACT OF JUNE 16, 1942, BECAUSE THE ENLISTED MAN ACTUALLY HAD NOT RECEIVED ACTIVE PAY FOR THE PRIOR SIX MONTHS COMPUTED ON THE BASIS OF THE LATTER ACT, THE EXPRESS PROVISION IN SECTION 15 OF THE LATTER ACT THAT ON AND AFTER THE EFFECTIVE DATE THEREOF RETIRED ENLISTED MEN SHALL HAVE THEIR RETIRED PAY "COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT" PROPERLY MAY BE GIVEN EFFECT BY COMPUTING THIS ENLISTED MAN'S RETIREMENT PAY, EFFECTIVE FROM JUNE 1, 1942, ON THE SAME BASIS AS THOUGH THE PAY RATES CONTAINED IN THE PAY READJUSTMENT ACT OF 1942, APPLICABLE TO AN ENLISTED MAN OF HIS GRADE ACTUALLY HAD BEEN IN EFFECT FOR SIX MONTHS PRIOR TO HIS RETIREMENT. SEE 19 COMP. GEN. 516. ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.