B-32764, OCTOBER 19, 1943, 23 COMP. GEN. 284

B-32764, OCTOBER 19, 1943, 23 COMP. GEN. 284

MEMBERS OF OFFICERS' RESERVE CORPS RECEIVING "RETIREMENT PAY" UNDER ACT OF APRIL 3, 1939; LONGEVITY CREDITS THE PROVISIONS OF THE ACT OF MARCH 2, 1903, PERMITTING OFFICERS OF THE ARMY RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE TO CONTINUE TO BE CREDITED WITH INCREASES OF LONGEVITY PAY FOR TIME ON THE RETIRED LIST, WHICH WERE INCONSISTENT WITH--- AND HENCE REPEALED BY--- SECTION 1 OF THE ACT OF JUNE 10, 1922, WERE NOT REINSTATED BY SECTION 1 OF THE ACT OF DECEMBER 2, 1942, AMENDING SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 TO AUTHORIZE, IN EFFECT, THE COUNTING OF INACTIVE AS WELL AS ACTIVE COMMISSIONED SERVICE IN COMPUTING ACTIVE DUTY PAY. SECTION 1 OF THE ACT OF DECEMBER 2, 1942, AMENDING SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 TO AUTHORIZE, IN EFFECT, THE COUNTING OF INACTIVE AS WELL AS ACTIVE COMMISSIONED SERVICE IN COMPUTING ACTIVE DUTY PAY THEREUNDER, DID NOT AMEND OR MODIFY THE PROVISION IN SECTION 15 OF SAID PAY READJUSTMENT ACT, AUTHORIZING THE COUNTING OF "ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT" IN COMPUTING RETIRED PAY, SO AS TO AUTHORIZE LONGEVITY INCREASES OTHERWISE IN THE "RETIREMENT PAY" RECEIVED BY MEMBERS OF THE OFFICERS' RESERVE CORPS UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, ON ACCOUNT OF DISABILITY RESULTING FROM WOUNDS RECEIVED IN BATTLE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, OCTOBER 19, 1943:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED IN YOUR LETTER OF FEBRUARY 25, 1943, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF MARCH 2, 1903 (32 STAT. 932) WHICH PROVIDES IN PART AS FOLLOWS:

"* * * HEREAFTER, EXCEPT IN CASE OF OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, NO OFFICER NOW ON THE RETIRED LIST SHALL BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY, AND OFFICERS HEREAFTER RETIRED, EXCEPT AS HEREIN PROVIDED, SHALL NOT BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY ABOVE THAT WHICH HAD ACCRUED AT DATE OF THEIR RETIREMENT. * * "

UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939 (53 STAT. 555) AS AMENDED, OFFICERS OF THE ARMY OF THE UNITED STATES WHO SUFFER DISABILITY OF DEATH IN LINE OF DUTY FROM DISEASE OR INJURY ARE ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, ETC., AS PROVIDED FOR OFFICERS OF CORRESPONDING GRADES OF THE REGULAR ARMY.

THE COMPTROLLER GENERAL OF THE UNITED STATES HELD IN DECISION DATED MAY 19, 1928 (7 COMP. GEN. 735) THAT THE ACT OF MARCH 2, 1903, SUPRA, WAS REPEALED AS TO OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, BY THE 11TH PARAGRAPH OF THE ACT OF JUNE 10, 1922 (42 STAT. 625) WHICH PERMITTED SUCH OFFICERS TO COUNT ONLY ACTIVE COMMISSIONED SERVICE FOR LONGEVITY PAY PURPOSES. THIS LIMITATION WAS CONTINUED BY THE ACT OF JUNE 16, 1942 ( PUBLIC LAW 607-77TH CONGRESS), BUT HAS BEEN REMOVED BY THE AMENDATORY ACT OF DECEMBER 2, 1942 ( PUBLIC LAW 785--- 77TH CONGRESS). HOWEVER, SEC. 15 OF THE ACT OF JUNE 16, 1942, WHICH COVERS RETIRED PAY, PROVIDES FOR COMPUTATION "AS NOW AUTHORIZED BY LAW," INCLUDING "INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT.'

THE QUESTION ARISES AS TO THE METHOD OF COMPUTATION OF RETIRED PAY OF OFFICERS OF THE ARMY OF THE UNITED STATES WHO WILL BE ENTITLED TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF THE ABOVE CITED ACTS. IT IS PROBABLE THAT SOME OF THESE OFFICERS WILL BE FOUND PHYSICALLY INCAPACITATED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE. YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT SUCH OFFICERS, IF RETAINED ON THE ROLLS OF THE OFFICERS' RESERVE CORPS, ARE ENTITLED TO ADDITIONAL CREDIT FOR LONGEVITY UNDER THE ACT OF MARCH 2, 1903, SUPRA.

YOU REFER TO DECISION OF THIS OFFICE DATED MAY 19, 1928, 7 COMP. GEN. 735, WHERE, IN CONSIDERING THE RIGHT OF AN OFFICER RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE TO HAVE HIS BASE OR PERIOD PAY COMPUTED ON THE BASIS OF TIME ON THE RETIRED LIST, IT WAS CONCLUDED THAT THE ACT OF JUNE 10, 1922, 42 STAT. 625, HAD THE EFFECT OF REPEALING THE PROVISIONS OF THE ACT OF MARCH 2, 1903, 32 STAT. 932 (QUOTED IN YOUR LETTER), AS TO OFFICERS APPOINTED ON AND AFTER JULY 1, 1922. SUCH CONCLUSION WAS BASED ON THE EXPRESS PROVISION CONTAINED IN SECTION 1 OF THE SAID ACT OF JUNE 10, 1922, THAT:

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. * * * COMPARE LEONARD V. UNITED STATES, 279 U.S. 40, PARTICULARLY THE COURT'S FOOTNOTE, PAGE 45.

YOUR LETTER APPEARS TO SUGGEST THE POSSIBILITY THAT THE PROVISIONS OF THE SAID ACT OF MARCH 2, 1903, NOW MAY BE REGARDED AS HAVING BEEN REINSTATED IN VIEW OF THE PROVISIONS OF SECTION 1 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, WHICH AMENDED SECTION 1 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, SO AS TO AUTHORIZE, IN EFFECT, CREDITING OF INACTIVE AS WELL AS ACTIVE COMMISSIONED SERVICE IN COMPUTING FOR PAY PURPOSES THE SERVICE OF OFFICERS PAID UNDER THE PROVISIONS OF THAT SECTION. SEE 22 COMP. GEN. 664. HOWEVER, ASSUMING THAT SUCH AMENDMENT OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 DID NOT AMEND OR MODIFY, OR PURPORT TO AMEND OR MODIFY, THE SPECIFIC PROVISIONS OF SECTION 15 OF THE SAID PAY READJUSTMENT ACT , 56 STAT. 367, GOVERNING THE COMPUTATION OF RETIRED PAY. AS POINTED OUT IN YOUR LETTER, SAID SECTION 15 EXPRESSLY PROVIDES THAT RETIRED OFFICERS SHALL HAVE THEIR RETIRED 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. * * * ( ITALICS SUPPLIED).

SUCH EXPRESS PROVISION IN SECTION 15 FOR COUNTING ALL "ACTIVE DUTY" PERFORMED SINCE RETIREMENT CLEARLY NEGATIVES ANY INTENTION TO AUTHORIZE THE COUNTING OF INACTIVE SERVICE AFTER RETIREMENT FOR THE PURPOSE OF INCREASING THE RETIRED PAY OF SUCH OFFICERS; AND THIS WAS NOT CHANGED BY THE AMENDMENT OF SECTION 1 BY THE SAID ACT OF DECEMBER 2, 1942, TO AUTHORIZE THE COUNTING OF INACTIVE AS WELL AS ACTIVE SERVICE IN COMPUTING THE SERVICE OF OFFICERS PAID ACTIVE DUTY PAY UNDER THE PROVISIONS OF SECTION 1. THEREFORE, THERE WOULD APPEAR TO BE NO BASIS, IN ANY EVENT, FOR HOLDING THAT THE AMENDMENT OF DECEMBER 2, 1942, HAD THE EFFECT OF REINSTATING THE PROVISIONS OF THE ACT OF MARCH 2, 1903, INCONSISTENT WITH- -- AND, HENCE, REPEALED BY--- SECTION 1 OF THE ACT OF JUNE 10, 1922, AS HELD IN THE SAID DECISION OF MAY 19, 1928, 7 COMP. GEN. 735.

MOREOVER, EVEN THOUGH THE SAID PROVISIONS OF THE ACT OF MARCH 2, 1903, WERE DETERMINED NOW TO BE IN EFFECT, IT WOULD NOT NECESSARILY FOLLOW THAT THEY WOULD BE APPLICABLE IN THE CASE OF RESERVE OFFICERS RECEIVING RETIREMENT PAY PURSUANT TO THE ACT OF APRIL 3, 1939, 53 STAT. 555, 557, CITED IN YOUR LETTER. RETIRED PAY, TOGETHER WITH ANY LONGEVITY INCREASE THEREIN, IS PAID TO RETIRED OFFICERS OF THE REGULAR ARMY AS CURRENT COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND ONLY WHILE THEY REMAIN IN THE SERVICE ( UNITED STATES V. TYLER, 105 U.S. 244), WHEREAS THE "RETIREMENT PAY" AUTHORIZED BY SECTION 5 OF THE SAID ACT OF APRIL 3, 1939, FOR OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, WHO SUFFER DISABILITY WHILE EMPLOYED IN THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT, IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE BUT IS MORE IN THE NATURE OF A PENSION PREDICATED ON THE DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. COMPARE DECISION OF AUGUST 16, 1943, B-35046, 23 COMP. GEN. 102. SEE, ALSO, DECISION OF JULY 21, 1939, B-4432. BUT, HOWEVER THAT MAY BE, THIS OFFICE WOULD NOT BE WARRANTED IN HOLDING THAT THE PROVISIONS OF THE SAID ACT OF MARCH 2, 1903, NOW ARE IN EFFECT WITH RESPECT TO ANY OFFICER APPOINTED ON OR AFTER JULY 1, 1922.