B-35046, AUGUST 16, 1943, 23 COMP. GEN. 102

B-35046, AUGUST 16, 1943, 23 COMP. GEN. 102

PAY - SERVICE CREDITS - INCLUSION OF PERIODS WHILE ON EMERGENCY OFFICERS' RETIRED LIST THE PERIOD DURING WHICH A FORMER MEMBER OF THE OFFICERS' RESERVE CORPS WAS ON THE EMERGENCY OFFICERS' RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, IS NOT COMMISSIONED SERVICE WHICH MAY BE COUNTED IN COMPUTING HIS ACTIVE DUTY PAY UNDER SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AS AN OFFICER OF THE ARMY OF THE UNITED STATES APPOINTED UNDER AUTHORITY OF THE ACT OF SEPTEMBER 22, 1941.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, AUGUST 16, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 31, 1943, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN RICHARD DOUGLAS, INFANTRY, ARMY OF THE UNITED STATES, IN THE AMOUNT OF $490.33, REPRESENTING THE DIFFERENCE IN PAY AND ALLOWANCES TO WHICH THE OFFICER WOULD BE ENTITLED FOR THE PERIOD FEBRUARY 26, 1943, TO MAY 31, 1943, IF HE IS AUTHORIZED TO COUNT FOR PAY PURPOSES THE PERIOD DURING WHICH HE WAS ON THE EMERGENCY OFFICERS' RETIRED LIST.

A REPORT DATED JULY 15, 1943, FROM THE ADJUTANT GENERAL, WAR DEPARTMENT, DISCLOSES THE FOLLOWING MILITARY HISTORY FOR CAPTAIN DOUGLAS:

1. THE RECORDS OF THIS OFFICE SHOW THAT RICHARD DOUGLAS ENLISTED 11 AUGUST 1909 AS PRIVATE FIRST CORPS CADETS, MASSACHUSETTS NATIONAL GUARD, AND SERVED TO 11 AUGUST 1916, THE DATE HE WAS HONORABLY DISCHARGED.

2. HE WAS APPOINTED FIRST LIEUTENANT, INFANTRY SECTION, OFFICERS' RESERVE CORPS, 18 DECEMBER 1916; ACCEPTED 5 MARCH 1917; PROMOTED TO CAPTAIN, INFANTRY SECTION OFFICERS' RESERVE CORPS, 15 AUGUST 1917; ACCEPTED 15 AUGUST 1917; HONORABLY DISCHARGED 16 MAY 1921.

3. HIS ACTIVE COMMISSIONED SERVICE WAS CONTINUOUS FROM 5 MAY 1917 TO 16 MAY 1921.

4. HE WAS APPOINTED CAPTAIN, MILITARY INTELLIGENCE, ARMY OF THE UNITED STATES, 11 FEBRUARY 1943; ACCEPTED 16 FEBRUARY 1943; ASSIGNED SERIAL NUMBER 10-513046; AND IS NOW A CAPTAIN MILITARY INTELLIGENCE, ARMY OF THE UNITED STATES.

5.HE ENTERED ON ACTIVE DUTY 26 FEBRUARY 1943.

A LETTER DATED MAY 13, 1943, FROM THE VETERANS' ADMINISTRATION STATES THAT REGULAR PAYMENTS OF EMERGENCY OFFICERS' RETIREMENT PAY WERE MADE TO THE OFFICER FOR THE PERIOD MAY 26, 1928, THROUGH FEBRUARY 25, 1943, THE DAY PRECEDING HIS ENTRY ON ACTIVE DUTY.

THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, AUTHORIZES TEMPORARY APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES, WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES, AND PROVIDES---

* * * THAT ANY PERSON APPOINTED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THIS ACT SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE * * *.

SECTION 3 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 360, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, IS 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).

THE EMERGENCY OFFICERS' RETIRED LIST WAS CREATED BY THE ACT OF MAY 24, 1928, 45 STAT. 735, WHICH PROVIDES:

THAT ALL PERSONS WHO HAVE SERVED AS OFFICERS OF THE ARMY, NAVY OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR, OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO DURING SUCH SERVICE HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY, AND WHO HAVE BEEN, OR MAY HEREAFTER, WITHIN ONE YEAR, BE, RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU, BE PLACED UPON, AND THEREAFTER CONTINUED ON, SEPARATE RETIRED LISTS, HEREBY CREATED AS PART OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, TO BE KNOWN AS THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, RESPECTIVELY, WITH THE RANK HELD BY THEM WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE, AND SHALL BE ENTITLED TO THE SAME PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED FOR BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, AND SHALL BE ENTITLED TO ALL HOSPITALIZATION PRIVILEGES AND MEDICAL TREATMENT AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED BY THE UNITED STATES VETERANS' BUREAU, AND SHALL RECEIVE FROM DATE OF RECEIPT OF THEIR APPLICATION RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE, EXCEPT PAY UNDER THE ACT OF MAY 18, 1920: PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF HIS LAW SHALL BE PAID SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE UNITED STATES VETERANS' BUREAU, AND SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, EXCEPT AS OTHERWISE AUTHORIZED HEREIN, AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922.

IN DECISION DATED JANUARY 19, 1943, 22 COMP. GEN. 664, IT WAS HELD THAT RETIRED OFFICERS OF THE NAVAL RESERVE WHO WERE ORDERED TO ACTIVE DUTY AND ENTITLED TO PAY UNDER THE PROVISIONS OF SECTION 3 OF THE PAY READJUSTMENT ACT OF 1942, QUOTED ABOVE, WERE ENTITLED TO COUNT INACTIVE TIME AS SUCH RETIRED OFFICERS IN COMPUTING THEIR ACTIVE DUTY PAY. IN OTHER WORDS, THAT DECISION HELD, IN EFFECT, THAT SUCH RETIRED NAVAL RESERVE OFFICERS HELD COMMISSIONS IN THE NAVAL RESERVE DURING THEIR INACTIVE RETIRED STATUS, WITHIN THE MEANING OF SAID SECTION 3, WHICH AUTHORIZES THE CREDITING FOR PAY PURPOSES OF FULL TIME FOR ALL PERIODS DURING WHICH OFFICERS HAVE "HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * * OR IN THE OFFICERS RESERVE CORPS * * * OR IN THE NAVAL RESERVE.'

THE STATUS OF PERSONS ON THE EMERGENCY OFFICERS' RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, SUPRA, HAS BEEN A MATTER FOR CONSIDERATION IN PRIOR DECISIONS OF THIS OFFICE. IN A DECISION DATED JULY 12, 1929, 9 COMP. GEN. 8, THERE WAS CONSIDERED THE QUESTION WHETHER FORMER OFFICERS IN RECEIPT OF EMERGENCY OFFICERS' RETIRED PAY UNDER THE SAID ACT OF MAY 24, 1928 COULD LEGALLY BE PAID DRILL PAY UNDER SECTION 21 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, 43 STAT. 1085. SECTION 4 OF THAT ACT PROVIDED THAT NO OFFICER OR MAN OF THE NAVAL RESERVE SHOULD BE A MEMBER OF ANY OTHER NAVAL OR MILITARY ORGANIZATION, EXCEPT THE NAVAL MILITIA. IT WAS STATED IN THAT DECISION:

THE QUESTION THUS ARISES AS TO WHETHER THE EMERGENCY OFFICERS' RETIRED LIST OF THE NAVY IS A NAVAL ORGANIZATION WITHIN THE MEANING OF THE ABOVE PROVISION. ORDINARILY, MEMBERSHIP IN A NAVAL OR MILITARY ORGANIZATION CARRIES WITH IT CERTAIN DUTIES AND OBLIGATIONS WHICH WOULD CONFLICT WITH THE DUTIES AND OBLIGATIONS INCIDENT TO MEMBERSHIP IN ANOTHER NAVAL OR MILITARY ORGANIZATION. THE PURPOSE OF THIS PROVISION WAS TO AVOID SUCH CONFLICT. SEE IN THIS CONNECTION 6 COMP. GEN. 750.

IT IS APPARENT THAT THE FORMER OFFICERS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST, CREATED BY ACT OF MAY 24, 1928, HAVE NOT THE SAME STATUS AS THOSE ON THE RETIRED LIST OF THE REGULAR ARMY AND NAVY. THE ACT OF MAY 24, 1928, BUT ITS TITLE AND BY ITS TERMS, MAKES PROVISION ONLY FOR PAY AND BENEFITS FOR FORMER OFFICERS AND DOES NOT PROVIDE OR CONTEMPLATE THAT THEY SHALL PERFORM ANY SERVICE IN THE ARMY, NAVY, OR MARINE CORPS.

IT IS CONCLUDED THAT THE EMERGENCY OFFICERS' RETIRED LIST OF THE NAVY IS NOT A NAVAL ORGANIZATION WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 4 OF THE ACT OF FEBRUARY 28, 1925 * * *.

IN DECISION OF NOVEMBER 23, 1929, 9 COMP. GEN. 221, TO THE GOVERNOR OF THE PANAMA CANAL, IT WAS HELD THAT FORMER OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST WERE NOT PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561. IN THAT DECISION IT WAS SAID:

* * * IT IS CLEAR THAT THE CONGRESS, IN THE ACT OF MAY 24, 1928, WAS NOT LEGISLATING UNDER ITS CONSTITUTIONAL AUTHORITY TO RAISE AND SUPPORT ARMIES OR TO PROVIDE AND MAINTAIN A NAVY. THE BENEFICIARIES ARE NOT BY THE ACT SUBJECTED TO THE ARTICLES OF WAR OR THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, AND THE ACT ITSELF, BY ITS PROVISION FOR PRIVILEGES, BENEFITS, AND RETIRED PAY IN LIEU OF COMPENSATION UNDER THE WORLD WAR VETERANS' ACT, WAS MERELY THE EXTENSION TO A PARTICULAR PORTION OF DISABLED VETERANS FOR WHOM PROVISION THEREFOR HAD BEEN MADE IN THE WAY OF COMPENSATION, HOSPITAL TREATMENT, NURSING AND ATTENDANCE IN THE WORLD WAR VETERANS' ACT, OF PRIVILEGES, BENEFITS, AND HONORS EQUIVALENT TO THOSE ACCORDED OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS RETIRED FOR PHYSICAL DISABILITY. THE ACT DOES NOT CONTEMPLATE THAT THE DISABLED VETERANS RECEIVING THOSE PRIVILEGES, BENEFITS, AND HONORS SHALL HAVE ANY DUTY OR RESPONSIBILITY UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT BY REASON OF HAVING BEEN PLACED ON A SPECIAL RETIRED LIST "CREATED AS A PART OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES.' THE ACT IS, IN FACT, A PART OF THE PROVISIONS MADE FOR DISABLED VETERANS OF THE WORLD WAR, AND IN THE CONSTRUCTION OF STATUTES IMPOSING DISABILITIES ON PERSONS IN THE MILITARY OR NAVAL SERVICE WITH RESPECT TO EMPLOYMENT IN THE FEDERAL CIVIL SERVICE THE ACT OF MAY 24, 1928, SHOULD HAVE A CONSTRUCTION IN KEEPING WITH ITS PURPOSES. UNDERSTOOD IN THIS LIGHT, THERE IS NO DIFFICULTY IN REACHING THE CONCLUSION THAT FORMER EMERGENCY OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS WHO ARE PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST BY THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU AS WITHIN THE TERMS AND CONDITIONS OF THE ACT OF 1928 ARE NOT "PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES.' * * *

IN DECISION OF JANUARY 25, 1940, 19 COMP. GEN. 676, IT WAS HELD (QUOTING THE SYLLABUS) THAT:

THE RECEIPT OF EMERGENCY OFFICERS' RETIRED PAY FOR DISABILITY UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED, DOES NOT BAR PAYMENT BY THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION CONCURRENTLY OF COMPENSATION FOR DISABILITY CAUSED BY AN INJURY SUSTAINED BY THE RECIPIENT IN HIS CIVIL EMPLOYMENT, AS THE SAID RETIRED PAY IS IN THE NATURE OF A "PENSION" FOR SERVICE IN THE ARMY OR NAVY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, IN SPECIFICALLY EXCEPTING "PENSIONS" FROM THE CONCURRENT PAYMENTS PROHIBITION OF THE SAID SECTION.

IN CONNECTION WITH THE QUESTION OF WHETHER OFFICERS ON THE SAID EMERGENCY OFFICERS' RETIRED LIST WHOSE DISABILITY RESULTED FROM WOUNDS RECEIVED IN BATTLE WERE ENTITLED TO AN INCREASE IN THEIR PAY ON ACCOUNT OF TIME ON THAT RETIRED LIST, IT WAS HELD THAT SUCH OFFICERS WERE NOT WITHIN THE PROVISIONS OF THE ACT OF MARCH 2, 1903, 32 STAT. 932, WHICH AUTHORIZED LONGEVITY INCREASES IN PAY AFTER RETIREMENT FOR OFFICERS OF THE ARMY WHO HAD BEEN RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE. DECISION OF JULY 21, 1939, B-4423. THE BASIS OF THAT DECISION WAS THAT THE ACT OF MAY 24, 1928, SPECIFICALLY FIXED THE RETIRED PAY AUTHORIZED FOR OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST, AND THAT THAT PROVISION COULD NOT BE EXPANDED BY THE PROVISION THAT SUCH RETIRED EMERGENCY OFFICERS "SHALL BE ENTITLED TO THE SAME PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.' THE DECISION CONTAINS THE FOLLOWING STATEMENT:

* * * THE MEANING OF THE WORD "PRIVILEGES" AS USED IN THE ACT WAS EXPLAINED IN THE REPORT OF THE HOUSE COMMITTEE AS FOLLOWS:

"THE BILL GIVES TO THE DISABLED EMERGENCY ARMY OFFICERS THE PRIVILEGES OF THOSE NOW ON THE RETIRED LIST--- THAT IS, TO USE THE TITLE OF THEIR RANK, TO WEAR THE UNIFORM, TO MEDICAL TREATMENT AT ARMY HOSPITALS,TO PURCHASE SUPPLIES AT ARMY SALES STORES, ETC.'

THE ABOVE DECISIONS CLEARLY SHOW THAT THE STATUS OF A FORMER DISCHARGED EMERGENCY OFFICER OF THE ARMY OR NAVY WHO MET THE DISABILITY REQUIREMENTS PRESCRIBED IN THE ACT OF MAY 24, 1928, AND WHO WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST CREATED THEREBY, IS ESSENTIALLY DIFFERENT FROM THE STATUS OF AN OFFICER ON THE RETIRED LIST OF THE ARMY OR NAVY. WHILE UNDER THAT ACT OFFICERS PLACE ON THE EMERGENCY OFFICERS' RETIRED LIST WERE GIVEN A CERTAIN RANK, THEY WERE NOT COMMISSIONED IN THE PARTICULAR SERVICE CONCERNED. SEE WOOD V. UNITED STATES, 107 U.S. 414. CAPTAIN DOUGLAS' COMMISSION AS AN OFFICER IN THE OFFICERS RESERVE CORPS TERMINATED ON MAY 16, 1921, WHEN HE WAS DISCHARGED THEREFROM, AND IT DOES NOT APPEAR THAT HE AGAIN HELD A COMMISSION WITHIN THE MEANING OF SECTION 3 OF THE SAID PAY READJUSTMENT ACT OF JUNE 16, 1942, UNTIL FEBRUARY 11, 1943, WHEN HE WAS APPOINTED A CAPTAIN IN THE ARMY OF THE UNITED STATES. NOT HAVING HELD A COMMISSION DURING THAT PERIOD HE IS NOT ENTITLED TO COUNT SUCH TIME FOR PAY PURPOSES UNDER THE LATTER ACT.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.