B-35249, JANUARY 12, 1944, 23 COMP. GEN. 506

B-35249: Jan 12, 1944

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ACTIVE SERVICE AFTER RETIREMENT IN COMPUTING THE RETIRED PAY OF AN ENLISTED MAN OF THE REGULAR ARMY WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF JUNE 30. WHICH PROVIDES THAT AN ENLISTED MAN SO RETIRED "SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT. 1944: REFERENCE IS MADE TO YOUR LETTER OF JUNE 7. IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH. THE VOUCHER IS IN THE AMOUNT OF $48.25 AND THE PERIOD COVERED IS FROM AUGUST 21. IT APPEARS THAT THE SOLDIER WAS RETIRED AS A MASTER SERGEANT ON NOVEMBER 30. FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT HE WAS PAID AS A MASTER SERGEANT WITH OVER 20 YEARS' SERVICE COMPUTED ON THE RATES PRESCRIBED IN THE ACT OF JUNE 10.

B-35249, JANUARY 12, 1944, 23 COMP. GEN. 506

PAY - RETIRED - ENLISTED MEN RETIRED UNDER ACT OF JUNE 30, 1941; ACTIVE SERVICE AFTER RETIREMENT IN COMPUTING THE RETIRED PAY OF AN ENLISTED MAN OF THE REGULAR ARMY WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF JUNE 30, 1941, WHICH PROVIDES THAT AN ENLISTED MAN SO RETIRED "SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT," THERE MAY NOT BE INCLUDED FOR LONGEVITY PAY PURPOSES ACTIVE SERVICE PERFORMED AFTER RETIREMENT, NOTWITHSTANDING THE GENERAL LANGUAGE CONTAINED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THAT RETIRED ENLISTED MEN, ETC., MAY INCLUDE IN THE COMPUTATION OF THEIR RETIRED PAY INCREASES FOR ACTIVE DUTY PERFORMED SINCE RETIREMENT. 22 COMP. GEN. 603, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, JANUARY 12, 1944:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1943, FORWARDED TO THIS OFFICE BY INDORSEMENT OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH, STATED IN FAVOR OF MASTER SERGEANT WILLIAM A. JOHNSON REPRESENTING THE DIFFERENCE IN RETIRED PAY BASED ON THE AVERAGE PAY RECEIVED BY THE SOLDIER FOR SIX MONTHS PRIOR TO RETIREMENT AND SUCH PAY BASED ON THE PAY OF A MASTER SERGEANT WITH OVER 24 YEARS' SERVICE.

THE VOUCHER IS IN THE AMOUNT OF $48.25 AND THE PERIOD COVERED IS FROM AUGUST 21, 1942, TO MAY 31, 1943. IT THUS APPEARS THAT THE VOUCHER REPRESENTS THE DIFFERENCE BETWEEN RETIRED PAY AT 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A MASTER SERGEANT WITH 21 YEARS' SERVICE AND AT 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A MASTER SERGEANT WITH 24 YEARS' SERVICE, COMPUTATION IN EACH INSTANCE BEING ON THE BASIS OF PAY PROVIDED IN SECTION 9 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, INFRA.

IT APPEARS THAT THE SOLDIER WAS RETIRED AS A MASTER SERGEANT ON NOVEMBER 30, 1941, HAVING AT THAT DATE COMPLETED 23 YEARS, 10 MONTHS, AND 26 DAYS' ACTIVE SERVICE, AND FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT HE WAS PAID AS A MASTER SERGEANT WITH OVER 20 YEARS' SERVICE COMPUTED ON THE RATES PRESCRIBED IN THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED. IT IS ASSUMED HIS RETIREMENT PAY FROM AND AFTER JUNE 1, 1942, HAS BEEN ADJUSTED ON THE BASIS OF THE RATES PROVIDED IN THE ACT OF JUNE 16, 1942, 56 STAT. 359, INCIDENT TO THE SERVICE TO HIS CREDIT AT DATE OF RETIREMENT. IT FURTHER APPEARS THAT SERGEANT JOHNSON ACCEPTED APPOINTMENT AS SECOND LIEUTENANT, INFANTRY OFFICERS' RESERVE CORPS, ON NOVEMBER 20, 1922; THAT HE HAD ACTIVE DUTY SERVICE AS A RESERVE OFFICER FROM JULY 7, 1942, TO AUGUST 20, 1942, A PERIOD OF ONE MONTH AND 14 DAYS, WHEN HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY; AND THAT HE WAS TRANSFERRED TO THE INACTIVE RESERVE CORPS ON OCTOBER 31, 1942, BY REASON OF PHYSICAL DISQUALIFICATION:

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.

THE QUESTION HERE INVOLVED IS WHETHER LIEUTENANT JOHNSON'S SERVICE FROM JULY 7, 1942, TO AUGUST 20, 1942, IS, BY VIRTUE OF SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, TO BE INCLUDED IN THE COMPUTATION OF HIS RETIREMENT PAY UPON HIS RELEASE FROM ACTIVE DUTY AS A RESERVE OFFICER.

THE DECISION OF THIS OFFICE DATED JANUARY 7, 1943, 22 COMP. GEN. 603, IS AUTHORITY FOR THE RULE THAT AN ENLISTED MAN OF THE REGULAR ARMY PLACED ON THE RETIRED LIST EFFECTIVE JUNE 1, 1942, UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1941, SUPRA, WAS ENTITLED TO HAVE HIS RETIREMENT PAY COMPUTED FROM JUNE 1, 1942, ON THE RATES OF PAY PROVIDED IN THE ACT OF JUNE 16, 1942, BUT IT WAS RECOGNIZED AND STATED IN THAT DECISION ON THE FACTS OF THAT CASE THAT THERE COULD BE NO LITERAL COMPUTATION OF HIS RETIRED PAY AS AUTHORIZED IN THE ACT OF JUNE 30, 1941. THAT DECISION GOES NO FURTHER. ASIDE FROM THE EXPRESS REPEAL OF THAT PORTION OF THE ACT OF JUNE 30, 1941, WHICH AUTHORIZED THE PAYMENT OF RETIRED ALLOWANCES, THE ACT OF JUNE 16, 1942, MADE NO CHANGE IN THE PROVISION OF SECTION 3 OF THE 1941 ACT, WHICH STIPULATES THAT AN ENLISTED MAN OF THE REGULAR ARMY RETIRED UNDER THE PROVISIONS OF SECTION 2 "SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT.' NOTWITHSTANDING THE GENERAL LANGUAGE CONTAINED IN SECTION 15 OF THE ACT OF JUNE 16, 1942, INASMUCH AS THIS SPECIAL LAW UNDER WHICH RETIREMENT FOR PHYSICAL DISABILITY IS AUTHORIZED, PROVIDES THAT THE COMPUTATION SHALL BE COMPUTED ON THE AVERAGE PAY OF THE ENLISTED MAN PRIOR TO RETIREMENT, THERE IS EFFECTIVELY NEGATIVED ANY INCREASE IN RETIREMENT PAY FOR ACTIVE SERVICE PERFORMED AFTER RETIREMENT. SEE GENERALLY COMP. GEN. 476.

YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER WHICH IS RETAINED IN THIS OFFICE IS NOT AUTHORIZED.