B-31288, JANUARY 19, 1943, 22 COMP. GEN. 664

B-31288: Jan 19, 1943

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PAY - RETIRED NAVY PERSONNEL ON ACTIVE DUTY - SERVICE CREDITS OFFICERS OF THE REGULAR NAVY ON THE RETIRED LIST WHO ARE ORDERED TO ACTIVE DUTY AND WHO. ARE ENTITLED TO "FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON ACTIVE DUTY" ARE ENTITLED TO COUNT INACTIVE SERVICE SINCE RETIREMENT IN COMPUTING THEIR ACTIVE DUTY PAY UNDER SECTION 1 OF SAID ACT. THE SAME RULE IS APPLICABLE IN COMPUTING UNDER SECTION 3 OF SAID PAY READJUSTMENT ACT. GEN. 439 IS INCONSISTENT HEREWITH. IT WILL NO LONGER BE FOLLOWED. ARE ENTITLED UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942. TO COUNT FOR PURPOSES OF ACTIVE DUTY PAY UNDER SECTION 1 OR 3 OF THE SAID PAY READJUSTMENT ACT "ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS" MAY COUNT INACTIVE SERVICE ON THE RETIRED LIST.

B-31288, JANUARY 19, 1943, 22 COMP. GEN. 664

PAY - RETIRED NAVY PERSONNEL ON ACTIVE DUTY - SERVICE CREDITS OFFICERS OF THE REGULAR NAVY ON THE RETIRED LIST WHO ARE ORDERED TO ACTIVE DUTY AND WHO, UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, ARE ENTITLED TO "FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON ACTIVE DUTY" ARE ENTITLED TO COUNT INACTIVE SERVICE SINCE RETIREMENT IN COMPUTING THEIR ACTIVE DUTY PAY UNDER SECTION 1 OF SAID ACT, AS AMENDED BY THE ACT OF DECEMBER 2, 1942; AND THE SAME RULE IS APPLICABLE IN COMPUTING UNDER SECTION 3 OF SAID PAY READJUSTMENT ACT, AS AMENDED, THE ACTIVE DUTY PAY OF RETIRED NAVAL RESERVE OFFICERS ON ACTIVE DUTY. INSOFAR AS THE ANSWER TO QUESTION 7 IN THE DECISION IN 22 COMP. GEN. 439 IS INCONSISTENT HEREWITH, IT WILL NO LONGER BE FOLLOWED. IN COMPUTING UNDER SECTION 8 OF THE PAY READJUSTMENT ACT OF 1942 THE ACTIVE DUTY PAY OF RETIRED ENLISTED MEN AND WARRANT OFFICERS OF THE REGULAR NAVY AND NAVAL RESERVE SERVING ON ACTIVE DUTY AS WARRANT OFFICERS, INACTIVE SERVICE ON THE RETIRED LIST MAY NOT BE COUNTED. IN TIME OF WAR AND SIX MONTHS THEREAFTER, RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY AND NAVAL RESERVE WHO, WHEN APPOINTED TO TEMPORARY COMMISSIONED RANK AFTER RECALL TO ACTIVE DUTY, ARE ENTITLED UNDER SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942, AS ADDED BY THE ACT OF DECEMBER 2, 1942, TO COUNT FOR PURPOSES OF ACTIVE DUTY PAY UNDER SECTION 1 OR 3 OF THE SAID PAY READJUSTMENT ACT "ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS" MAY COUNT INACTIVE SERVICE ON THE RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 19, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 19, 1942, AS FOLLOWS:

THE ACT APPROVED DECEMBER 2, 1942 ( PUBLIC LAW 785---77TH CONGRESS) MADE CERTAIN AMENDMENTS TO SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942 ( PUBLIC LAW 607---77TH CONGRESS) AND ADDED TO SAID SECTION 3 A NEW SECTION 3A.

THE AMENDMENTS TO SAID SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDE, IN SUBSTANCE, THAT IN COMPUTING THE SERVICES FOR ALL PAY PURPOSES OF COMMISSIONED OFFICERS OF THE REGULAR NAVY AND NAVAL RESERVE, EXCLUSIVE OF COMMISSIONED WARRANT OFFICERS, THEY SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE SEVERAL BRANCHES OF THE MILITARY AND NAVAL SERVICES THEREIN NAMED.

THE NEW SECTION 3A IS TO THE EFFECT THAT DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING SERVICE FOR ALL PAY PURPOSES, COMMISSIONED OFFICERS OF THE REGULAR NAVY AND NAVY RESERVE, EXCLUSIVE OF COMMISSIONED WARRANT OFFICERS, MAY COUNT, IN ADDITION TO THE PERIODS WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS IN THE SERVICES ENUMERATED THEREIN.

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED AS TO WHETHER UNDER SECTIONS 1 AND 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, AND THE NEW SECTION 3A ADDED TO SAID SECTION 3 BY THE LATTER ACT:

(A) RETIRED COMMISSIONED OFFICERS OF THE REGULAR NAVY AND NAVAL RESERVE MAY COUNT FOR ALL PAY PURPOSES TIME ELAPSING BETWEEN EFFECTIVE DATE OF RETIREMENT AND DATE ON WHICH ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES UPON RECALL.

(B) WHETHER RETIRED ENLISTED MEN AND WARRANT OFFICERS OF THE REGULAR NAVY AND NAVAL RESERVE APPOINTED TO TEMPORARY WARRANT OR COMMISSIONED RANK AFTER RECALL TO ACTIVE DUTY MAY COUNT FOR ALL PAY PURPOSES TIME ELAPSING BETWEEN EFFECTIVE DATE OF RETIREMENT AND DATE ON WHICH ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES UPON RECALL TO ACTIVE DUTY AS ENLISTED MEN OR WARRANT OFFICERS IN THE COMPUTATION OF LONGEVITY AND PERIOD PAY INCREASES TO WHICH ENTITLED IN TEMPORARY COMMISSIONED RANK.

THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, PUBLIC LAW 785, REFERRED TO IN YOUR LETTER, ROVIDES:

THAT THE ELEVENTH PARAGRAPH OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607), APPROVED JUNE 16, 1942, IS AMENDED TO READ AS FOLLOWS:

"IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF THIS SECTION, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS' RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE OF COAST AND GEODETIC SURVEY OFFICERS AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS): PROVIDED, THAT FOR OFFICERS IN SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION, IN ADDITION TO THE SERVICE SET FORTH ABOVE, ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME. LONGEVITY PAY FOR OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES WHICH IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE PROVISIONS OF THIS ACT OR AS MAY OTHERWISE BE PROVIDED BY LAW.'

SEC. 2. THE FIRST PARAGRAPH OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607), APPROVED JUNE 16, 1942, IS AMENDED TO READ AS FOLLOWS:

"SEC. 3. WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE OFFICERS, ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, THEY SHALL RECEIVE PAY AS PROVIDED IN SECTION 1 OF THIS ACT, AND IN COMPUTING THEIR SERVICE FOR PAY THEY SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY, AND SERVICE AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY-SEVENTH CONGRESS).'

SEC. 3. THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607), APPROVED JUNE 16, 1942, IS AMENDED BY INSERTING AFTER SECTION 3 THEREOF THE FOLLOWING NEW SECTION:

"SEC. 3A. DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR, IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SECTION 1 OR 3 OF THIS ACT, SUCH OFFICERS, IN ADDITION TO THE TIME REQUIRED TO BE CREDITED BY SUCH SECTIONS, SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS OR ARMY FIELD CLERKS OR AS COMMISSIONED WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE REGULAR ARMY RESERVE, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NATIONAL GUARD RESERVE, OR IN THE NATIONAL GUARD OF THE UNITED STATES, OR IN THE ENLISTED RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, OR IN THE PHILIPPINE SCOUTS, OR IN THE PHILIPPINE CONSTABULARY. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO PERMIT ANY COMMISSIONED OFFICER TO RECEIVE PAY AND ALLOWANCES IN EXCESS OF THE MAXIMUM LIMITATIONS IMPOSED UPON THE TOTAL PAY AND ALLOWANCES OF ANY RANK OR GRADE BY ANY OF THE PROVISIONS OF THIS ACT.'

SEC. 4. THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942, BUT NO BACK PAY OR ALLOWANCES FOR ANY PERIOD PRIOR TO SUCH DATE SHALL ACCRUE BY REASON OF THE ENACTMENT OF THIS ACT.

TO DETERMINE THE APPLICATION OF THESE PROVISIONS TO RETIRED OFFICERS ON ACTIVE DUTY WITH RESPECT TO THE COUNTING OF THEIR INACTIVE TIME ON THE RETIRED LIST FOR PAY PURPOSES, IT SEEMS NECESSARY TO REFER BRIEFLY TO SOME OF THE PRIOR STATUTES AND DECISIONS. HOWEVER, IT SHOULD BE CLEARLY UNDERSTOOD THAT THIS DECISION HAS NO REFERENCE TO RETIRED PAY, AS DISTINGUISHED FROM ACTIVE DUTY PAY FOR RETIRED OFFICERS.

IN THE CASE OF UNITED STATES V. TYLER, 105 U.S. 244, DECIDED IN 1881, IT WAS HELD THAT UNDER THE PROVISIONS OF SECTION 1262, REVISED STATUTES, AN OFFICER OF THE ARMY COULD COUNT INACTIVE SERVICE ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES TO INCREASE HIS RETIRED PAY. THAT DECISION DID NOT AFFECT THE PAY OF OFFICERS ON THE RETIRED LIST OF THE NAVY, SINCE IT WAS BASED SOLELY UPON THE PROVISIONS OF A STATUTE APPLICABLE TO THE ARMY. SEE THORNLEY V. UNITED STATES, 113 U.S. 310. THE EFFECT OF THE TYLER CASE, SUPRA, WAS NEGATIVED BY THE ACT OF MARCH 2, 1903, 32 STAT. 927, 932, WHICH PROVIDED THAT "EXCEPT IN CASE OF OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE," OFFICERS THEN OR THEREAFTER RETIRED SHOULD NOT RECEIVE FURTHER INCREASES OF LONGEVITY PAY FOR PERIODS ON THE RETIRED LIST. SEE, ALSO, FAUST V. UNITED STATES, 42 C.1CLS. 94, HOLDING THAT RETIRED OFFICERS OF THE NAVY ON ACTIVE DUTY WERE NOT ENTITLED TO LONGEVITY CREDIT FOR TIME ON THE RETIRED LIST.

BY ACTS SUBSEQUENT TO THE ACT OF 1903, PERIODS OF ACTIVE SERVICE PERFORMED BY RETIRED OFFICERS AFTER RETIREMENT WERE AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES TO INCREASE THEIR RETIRED PAY. SEE, FOR EXAMPLE, THE ACT OF JULY 1, 1918, 40 STAT. 704, 717, APPLICABLE TO RETIRED OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD, AND THE ACT OF MAY 12, 1917, 40 STAT. 40, 48, APPLICABLE TO OFFICERS OF THE ARMY.

EFFECTIVE JULY 1, 1922, THE PAY AUTHORIZED FOR RETIRED OFFICERS OF THE NAVY WAS GOVERNED BY SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632. THAT SECTION, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 252, AND THE ACT OF MAY 26, 1928, 45 STAT. 774, WAS AS FOLLOWS:

THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED 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 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, AND ENLISTED MEN NOW ON THE RETIRED LIST OR OFFICERS OR WARRANT OFFICERS IN AN EQUIVALENT STATUS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT: PROVIDED, THAT THE PAY SAVED TO AN OFFICER BY SECTION 16 OF THIS ACT OR BY THE ACT OF SEPTEMBER 14, 1922, SHALL BE CONSTRUED AS THE PAY PROVIDED IN THIS ACT FOR THE PURPOSE OF COMPUTING RETIRED PAY. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION: PROVIDED, THAT OFFICERS AND FORMER OFFICERS OF THE PHILIPPINE SCOUTS WHO WERE PLACED ON THE RETIRED LIST PRIOR TO JUNE 4, 1920, SHALL BE ENTITLED TO PROMOTION ON THE RETIRED LIST FOR ACTIVE DUTY HERETOFORE PERFORMED SUBSEQUENT TO RETIREMENT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 127A OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, AND TO THE SAME PAY AND BENEFITS RECEIVED BY OTHER OFFICERS OF THE ARMY OF LIKE GRADE AND LENGTH OF SERVICE, ON THE RETIRED LIST. RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES, AND WHEN ON ACTIVE-DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, AND IF DEATH OCCURS WHEN ON ACTIVE-DUTY STATUS, WHILE ON LEAVE OF ABSENCE OR SICK, THEIR DEPENDENTS SHALL NOT THEREBY BE DEPRIVED OF THE BENEFITS PROVIDED IN ACT APPROVED DECEMBER 17, 1919, AS AMENDED, AND IN THE ACT OF JUNE 4, 1920: PROVIDED, THAT NO BACK PAY OR ALLOWANCES SHALL ACCRUE BY REASON OF THE PASSAGE OF THIS ACT. IT WILL BE NOTED THAT THE LAST SENTENCE OF THIS SECTION PROVIDES THAT RETIRED OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE ON ACTIVE DUTY SHOULD RECEIVE "FULL PAY AND ALLOWANCES.' THE FULL PAY AND ALLOWANCES CONTEMPLATED BY THIS PROVISION WERE NOT SPECIFICALLY PRESCRIBED IN SAID SECTION 17 AND IT WAS, THEREFORE, NECESSARY TO CONSIDER THIS PROVISION IN CONNECTION WITH OTHER PROVISIONS OF THE ACT. SOON AFTER THE ENACTMENT OF THE STATUTE IN 1922, PROPOSED INSTRUCTIONS PREPARED IN THE NAVY DEPARTMENT PERTAINING THERETO WERE SUBMITTED TO THIS OFFICE FOR COMMENT AND THERE WAS CONSIDERED THE MEANING OF THE PHRASE "FULL PAY AND ALLOWANCES" AS USED IN THE LAST SENTENCE OF SAID SECTION (2 COMP. GEN. 153) AND THE FOLLOWING STATEMENT (PAGE 156) WAS MADE:

IT IS THEREFORE CONCLUDED THAT THE "FULL PAY AND ALLOWANCES" TO WHICH RETIRED OFFICERS OF THE NAVY BELOW THE GRADE OF REAR ADMIRAL (LOWER HALF) OR COMMODORE AND RETIRED WARRANT OFFICERS--- WHETHER RETIRED PRIOR OR AFTER JUNE 30, 1922--- ARE ENTITLED FOR ACTIVE DUTY PERFORMED ON AND AFTER JULY 1, 1922, IS THE ACTIVE-LIST PAY AND ALLOWANCES OF THEIR GRADE AS FIXED BY THE ACT OF JUNE 10, 1922, AND THAT THEY DO NOT RETAIN AFTER JUNE 30, 1922, FOR ANY PURPOSE THEIR OLD ACTIVE-DUTY PAY OR ALLOWANCES.

IN DECISION OF OCTOBER 16, 1923, 3 COMP. GEN. 216, IT WAS HELD THAT RETIRED OFFICERS OF THE NAVY ON ACTIVE DUTY WERE ENTITLED TO LONGEVITY CREDIT FOR ALL ACTIVE DUTY SERVICE SINCE RETIREMENT IN COMPUTING THEIR ACTIVE DUTY PAY. SEE, ALSO, 3 COMP. GEN. 360. WHILE THE HOLDING IN 3 COMP. GEN. 216 WAS BASED ON THE ACT OF AUGUST 29, 1916, 39 STAT. 581, WHICH SUBSEQUENTLY WAS HELD TO HAVE BEEN SUPERSEDED BY SECTION 17 OF THE ACT OF JUNE 10, 1922, INSOFAR AS OFFICERS FALLING WITHIN THE SCOPE OF SAID SECTION 17 WERE CONCERNED ( AUSTIN V. UNITED STATES, 81 C.1CLS. 639; CF. RODMAN V. UNITED STATES, 70 C.1CLS. 751), APPARENTLY IT HAS NEVER BEEN QUESTIONED THAT THE "FULL PAY AND ALLOWANCES" TO WHICH A RETIRED OFFICER ON ACTIVE DUTY WAS ENTITLED PURSUANT TO SECTION 17 INCLUDED INCREASED LONGEVITY PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT. IN THE AUSTIN CASE THE COURT SAID: THE DEFENDANT CONTENDS THAT SECTION 17 OF THE 1922 ACT SUPERSEDES THE ACT OF AUGUST 29, 1916, IN RESPECT TO THE ACTIVE- DUTY PAY AND ALLOWANCES OF RETIRED OFFICERS OF THE COAST GUARD BELOW THE GRADE OF COMMODORE, WHEN ON ACTIVE DUTY. WE THINK THE DEFENDANT IS RIGHT. OBVIOUSLY THE PROVISION THAT RETIRED OFFICERS, WHEN ON ACTIVE DUTY, SHALL "RECEIVE FULL PAY AND ALLOWANCES" HAS REFERENCE TO THE FULL PAY AND ALLOWANCES OF THE PAY PERIOD IN WHICH THEIR RANK AND SERVICE PLACE THEM IN THE PRECEDING PROVISIONS OF THE ACT. THE PLAINTIFF HELD THE RANK OF LIEUTENANT, WITH A COMPLETED ACTIVE COMMISSIONED SERVICE OF MORE THAN SEVENTEEN YEARS, WHEN HE RETURNED TO ACTIVE-SERVICE DUTY AFTER RETIREMENT. * * * HE HAS, DURING THE PERIOD OF THE CLAIM, RECEIVED THE FULL PAY AND ALLOWANCES OF AN OFFICER OF HIS RANK AND SERVICE, COMPUTED ON ALL ACTIVE SERVICE PERFORMED BEFORE AND AFTER RETIREMENT. THAT IS, RETIRED OFFICERS ON ACTIVE DUTY WERE ENTITLED TO LONGEVITY INCREASES FOR ACTIVE SERVICE PERFORMED AFTER RETIREMENT, NOT BECAUSE OF ANY STATUTE EXPRESSLY SO PROVIDING, BUT BECAUSE THEIR ACTIVE DUTY PAY WAS COMPUTED UNDER THE PROVISIONS OF SECTION 1 APPLICABLE TO ACTIVE LIST OFFICERS WHICH EXPRESSLY AUTHORIZED THE COUNTING OF PRIOR ,ACTIVE DUTY" FOR LONGEVITY INCREASES OF ACTIVE DUTY PAY. COMPARE DECISION OF AUGUST 25, 1941, 21 COMP. GEN. 173, WHERE IT WAS SAID:

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 OFA 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. THE ACT OF JUNE 25, 1941, 55 STAT. 263, REFERRED TO, AMENDED SECTION 17 OF THE ACT OF JUNE 10, 1922, INTER ALIA, BY DELETING THE WORDS "BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE," THUS ALLOWING RETIRED OFFICERS OF HIGHER RANKS, ALSO, FULL PAY AND ALLOWANCES WHEN ON ACTIVE DUTY. SUBSEQUENTLY, THE ACT OF DECEMBER 15, 1941, 55 STAT. 800, IN EFFECT FURTHER AMENDED SECTION 17 OF THE ACT OF JUNE 10, 1922, BY PROVIDING THAT ALL COMMISSIONED OFFICERS OF THE NAVY AND MARINE CORPS ON THE RETIRED LIST SHOULD, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES "OF THE RANK OR GRADE IN WHICH THEY SERVE ON SUCH ACTIVE DUTY.'

THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 359, PUBLIC LAW 607, REPEALED THE ACT OF JUNE 10, 1922, AS AMENDED. SECTION 1 OF THE ACT OF JUNE 16, 1942, LIKE SECTION 1 OF THE ACT OF JUNE 10, 1922, PRESCRIBES PAY FOR OFFICERS ON THE ACTIVE LIST. THE PROVISIONS OF SECTION 17 OF THE OLD ACT, AS AMENDED, HAVE BEEN INCORPORATED IN SECTION 15 OF THE NEW ACT, 56 STAT. 367. SECTION 1 OF THE NEW ACT, AS ORIGINALLY ENACTED, PROVIDED, LIKE SECTION 1 OF THE ACT OF JUNE 10, 1922, THAT FOR OFFICERS APPOINTED ON AND AFTER JUNE 1, 1922, NO SERVICE SHOULD BE COUNTED FOR PURPOSES OF PAY EXCEPT "ACTIVE COMMISSIONED SERVICE" AS THERE SET FORTH. THIS LANGUAGE WAS CHANGED BY THE AMENDATORY ACT OF DECEMBER 2, 1942, SUPRA, TO PROVIDE THAT IN COMPUTING THE SERVICE FOR ALL PAY PURPOSES OF OFFICERS PAID UNDER THE PROVISIONS OF SAID SECTION,"SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" OR AS OTHERWISE THERE STIPULATED. HENCE, OFFICERS ON THE ACTIVE LIST PAID UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 16, 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, MAY COUNT FOR LONGEVITY PAY AND PAY PERIOD PURPOSES "FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT.' THIS LANGUAGE IN SECTION 1 OF THE AMENDMENT OF DECEMBER 2, 1942, CONTRASTED WITH THE LANGUAGE WHICH IT REPLACED IN SECTION 1 OF THE ACT BEFORE AMENDMENT--- PROVIDING THAT NO SERVICE SHOULD BE COUNTED FOR PURPOSES OF PAY "EXCEPT ACTIVE COMMISSIONED SERVICE," AS THERE STIPULATED- -- SHOWS THAT THE PHRASE IN THE AMENDMENT "ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS" WAS NOT USED IN A RESTRICTIVE SENSE AND WAS NOT INTENDED TO LIMIT THE SERVICE TO BE COUNTED TO ACTIVE COMMISSIONED SERVICE, AS ORIGINALLY PROVIDED. THERE WOULD HAVE BEEN NO OCCASION TO CHANGE THE TERM "ACTIVE COMMISSIONED SERVICE" TO "ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS" IF A CONTINUED LIMITATION TO "ACTIVE COMMISSIONED SERVICE" HAD BEEN INTENDED OR CONTEMPLATED. THAT NO SUCH LIMITATION WAS INTENDED IS FURTHER SHOWN BY THE OTHER INACTIVE SERVICE WHICH THE AMENDMENT CLEARLY PERMITS BEING COUNTED. THERE WOULD BE NO CONSISTENCY IN EXCLUDING INACTIVE SERVICE UNDER COMMISSIONS IN THE REGULAR FORCES WHILE PERMITTING INACTIVE SERVICE UNDER COMMISSIONS IN RESERVE OR NATIONAL GUARD COMPONENTS TO BE COUNTED. IT IS CONCLUDED, THEREFORE, THAT THE PHRASE "SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" WAS INTENDED LITERALLY AND CONTEMPLATES THE INCLUSION OF INACTIVE AS WELL AS ACTIVE SERVICE WHILE SO HOLDING A COMMISSION. THE SERVICES MENTIONED IN THE TITLE OF THE ACT INCLUDE THE NAVY. IT IS WELL SETTLED THAT AN OFFICER ON THE RETIRED LIST OF THE NAVY--- EVEN THOUGH NOT ON ACTIVE DUTY BUT SUBJECT TO CALL TO ACTIVE DUTY AND TO THE LAWS FOR THE GOVERNMENT OF THE NAVY--- HOLDS A COMMISSION IN THE SERVICE. TYLER V. UNITED STATES, 105 U.S. 244; MARVIN V. UNITED STATES, 78 C.1CLS. 567. IT FOLLOWS THAT NAVAL OFFICERS ON THE RETIRED LIST ORDERED TO ACTIVE DUTY AND WHO, UNDER THE PROVISIONS OF SECTION 15 OF THE ACT OF JUNE 16, 1942, ARE ENTITLED TO "FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY" ARE ENTITLED TO COUNT INACTIVE SERVICE SINCE THEIR RETIREMENT IN COMPUTING THEIR ACTIVE DUTY PAY UNDER SECTION 1 OF THE ACT AS AMENDED BY THE ACT OF DECEMBER 2, 1942. THE SAME OR SIMILAR CONTROLLING PROVISIONS ARE CONTAINED IN SECTION 3 OF THE ACT OF JUNE 16, 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, WITH RESPECT TO OFFICERS OF THE NATIONAL GUARD OR RESERVE FORCES AND THE SAME RULE APPLIES. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. INSOFAR AS THE ANSWER TO QUESTION 7 IN DECISION OF NOVEMBER 5, 1942, B-27930, 22 COMP. GEN. 439, IS INCONSISTENT HEREWITH IT WILL NO LONGER BE FOLLOWED.

YOUR SECOND QUESTION IS UNDERSTOOD TO BE WHETHER RETIRED ENLISTED MEN AND WARRANT OFFICERS APPOINTED TO TEMPORARY WARRANT OR COMMISSIONED RANK AFTER RECALL TO ACTIVE DUTY MAY COUNT FOR ALL PAY PURPOSES TIME ELAPSING BETWEEN THE EFFECTIVE DATE OF THEIR RETIREMENT AND DATE OF RECALL TO ACTIVE DUTY IN THE COMPUTATION OF THEIR ACTIVE DUTY PAY.

THE PAY OF WARRANT OFFICERS IS FIXED BY SECTION 8 OF THE ACT OF JUNE 16, 1942, 56 STAT. 362, WHICH PROVIDES, IN PART, AS FOLLOWS:

EVERY PERSON PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE, NOT EXCEEDING THIRTY YEARS. SUCH SERVICE SHALL BE: ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE NAVAL RESERVE, MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE; PROVIDED, THAT COMMISSIONED WARRANT OFFICERS SHALL BE CREDITED ONLY WITH ALL COMMISSIONED SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT INCLUDING COMMISSIONED SERVICE IN THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD. THUS THE SERVICE WHICH WARRANT OFFICERS MAY COUNT IS EXPRESSLY STIPULATED IN SECTION 8 AS INCLUDING "ACTIVE" FEDERAL SERVICE IN THE SERVICES MENTIONED; AND IT SEEMS OBVIOUS THAT THE QUOTED PROVISIONS DO NOT CONSTITUTE AUTHORITY TO COUNT INACTIVE SERVICE ON THE RETIRED LIST, WHETHER AS AN ENLISTED MAN OR AS A WARRANT OFFICER. INSOFAR AS YOUR SECOND QUESTION RELATES TO THE COMPUTATION OF PAY AS WARRANT OFFICERS OF RETIRED PERSONNEL AFTER RECALL TO ACTIVE DUTY, IT IS ANSWERED IN THE NEGATIVE. HOWEVER, IN CONNECTION WITH RETIRED PERSONNEL APPOINTED TO COMMISSIONED RANK, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 3A OF THE ACT OF JUNE 16, 1942, ADDED TO SUCH ACT BY SECTION 3 OF THE ACT OF DECEMBER 2, 1942, SUPRA. BY SECTION 3A, OFFICERS PAID UNDER THE PROVISIONS SECTIONS 1 AND 3 OF THE ACT OF JUNE 16, 1942, 56 STAT. 359, 360, DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND SIX MONTHS THEREAFTER ARE ENTITLED TO COUNT, IN ADDITION TO THE TIME AUTHORIZED BY THOSE SECTIONS, ALL PERIODS "DURING WHICH THEY WERE ENLISTED OR HELD APPOINTMENTS AS WARRANT OFFICERS" IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT OR IN THE OTHER SERVICES EXPRESSLY MENTIONED. WITH RESPECT TO THE WARTIME PAY IN THEIR COMMISSIONED RANKS OF RETIRED ENLISTED MEN AND WARRANT OFFICERS TEMPORARILY APPOINTED AND SERVING AS COMMISSIONED OFFICERS, THE QUESTIONS ARE WHETHER ENLISTED MEN ON THE RETIRED LIST WERE "ENLISTED" IN ANY OF THE SERVICES MENTIONED AND WHETHER RETIRED WARRANT OFFICERS WHILE ON THE RETIRED LIST "HELD APPOINTMENTS" AS WARRANT OFFICERS IN ANY OF THE SERVICES MENTIONED, WITHIN THE CONTEMPLATION OF SAID SECTION 3A. WITH RESPECT TO THE STATUS OF ENLISTED MEN AND NONCOMMISSIONED PERSONNEL ON THE RETIRED LIST IT WAS STATED IN 1 COMP. GEN. 700, 702, THAT:

ENLISTED MEN ON THE RETIRED LIST ARE NOW AS MUCH A PART OF THE ARMY OR NAVY, RESPECTIVELY, AS RETIRED COMMISSIONED OR WARRANT OFFICERS ARE. MERE NOMENCLATURE IS NOT MATERIAL, AND I SEE NO GROUND FOR DISTINCTION AMONG RETIRED ENLISTED MEN BETWEEN THOSE RANKING AS NONCOMMISSIONED OFFICERS OF THE ARMY OR PETTY OFFICERS OF THE NAVY AND THOSE RANKING BELOW SUCH NONCOMMISSIONED OR PETTY OFFICERS. * * *

ARTICLE 1712 (2), NAVY REGULATIONS 1920, PROVIDES THAT AT TIME OF RETIREMENT OF ENLISTED MEN OF THE NAVY NO DISCHARGE WILL BE GIVEN AND THE RETIRED ENLISTED MAN WILL BE REGARDED AS CONTINUING IN THE SERVICE UPON THE RETIRED LIST. SEE, ALSO, 34 U.S.C. 423 AND 433, PROVIDING FOR THE ORDERING OF RETIRED WARRANT OFFICERS AND ENLISTED MEN TO ACTIVE DUTY. IS CLEAR THAT RETIRED ENLISTED MEN AND WARRANT OFFICERS OF THE NAVY REMAIN A PART OF THE SERVICE AFTER RETIREMENT AND IN VIEW OF THE OTHER INACTIVE SERVICE WHICH SECTION 3A AUTHORIZES TO BE COUNTED DURING WARTIME, THE CONCLUSION THAT THE CONGRESS INTENDED TO EXCLUDE THE INACTIVE SERVICE OF ENLISTED MEN AND WARRANT OFFICERS ON THE RETIRED LIST WOULD NOT BE JUSTIFIED. WHILE ON THE RETIRED LIST THEY WERE "ENLISTED" OR "HELD APPOINTMENTS AS WARRANT OFFICERS" WITHIN THE MEANING OF SECTION 3A OF THE ACT OF JUNE 16, 1942. ACCORDINGLY, INSOFAR AS YOUR SECOND QUESTION RELATES TO RETIRED ENLISTED MEN AND WARRANT OFFICERS APPOINTED TO TEMPORARY COMMISSIONED RANK AFTER THEIR RECALL TO ACTIVE DUTY AND WHO ARE ENTITLED TO ACTIVE DUTY PAY AS COMMISSIONED OFFICERS IN TIME OF WAR AND SIX MONTHS THEREAFTER, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.