B-40139, AUGUST 30, 1944, 24 COMP. GEN. 165

B-40139, AUGUST 30, 1944, 24 COMP. GEN. 165

PAY - RETIRED - RESERVE, ETC., OFFICERS' RIGHTS UNDER ACT OF APRIL 3, 1939, AS AMENDED WHETHER CERTIFIED FOR RETIREMENT PAY BENEFITS PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, TO BEGIN PRIOR TO THE EFFECTIVE DATE ( JUNE 1, 1942) OF THE PAY READJUSTMENT ACT OF 1942, OR THEREAFTER, OFFICERS OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES--- WHO ARE ENTITLED UNDER THE 1939 ACT, AS AMENDED, TO RECEIVE THE "SAME * * * RETIREMENT PAY" THEREAFTER PROVIDED FOR "OFFICERS * * * OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY"--- ARE ENTITLED THE SAME AS RETIRED OFFICERS OF THE REGULAR ARMY ON OR AFTER JUNE 1, 1942, TO HAVE THEIR RETIREMENT PAY COMPUTED ON THE BASIS OF THE PAY RATES AND SERVICE AUTHORIZED BY THE 1942 ACT. OFFICERS OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES WHO RECEIVE RETIREMENT PAY PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, WHICH ASSIMILATES THE RETIREMENT PAY RIGHTS OF SUCH OFFICERS TO THOSE OF OFFICERS OF THE REGULAR ARMY OF CORRESPONDING GRADES AND LENGTH OF SERVICE, ARE ENTITLED ON AND AFTER THE EFFECTIVE DATE ( JUNE 1, 1942) OF THE PAY READJUSTMENT ACT OF 1942 TO HAVE THEIR RETIREMENT PAY COMPUTED ON THE BASIS OF THE SERVICE AUTHORIZED FOR RESERVE OFFICERS BY SECTION 3 OF THE 1942 ACT, AS AMENDED, THAT BEING THE SERVICE CORRESPONDING TO THAT AUTHORIZED FOR REGULAR ARMY OFFICERS BY SECTION 1 OF SAID ACT, AS AMENDED. TEMPORARY OFFICERS OF THE ARMY OF THE UNITED STATES AND OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES ARE "OFFICERS * * * OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS * * * OF THE REGULAR ARMY," WITHIN THE MEANING OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, WHICH CONFERS UPON SUCH OTHER OFFICERS CERTAIN RETIREMENT PAY BENEFITS, ETC., BY ASSIMILATION TO REGULAR ARMY OFFICERS, AND, HENCE, THEY ARE ENTITLED TO RETIREMENT PAY BENEFITS AND ADJUSTMENTS THEREUNDER THE SAME AS MEMBERS OF THE OFFICERS' RESERVE CORPS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, AUGUST 30, 1944:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 12, 1944, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 3 OF THE ACT OF JUNE 16, 1942, AS AMENDED BY THE ACT OF DECEMBER 2, 1942 (56 STAT. 1037), WHICH PROVIDES IN PART AS FOLLOWS:

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 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, * * *.'

SECTION 15 OF THE ACT OF JUNE 16, 1942 (56 STAT. 367), PROVIDES THAT THE PAY OF RETIRED PERSONNEL SHALL BE COMPUTED "AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT.'

IN VIEW OF THE ABOVE, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

A. WHETHER OFFICERS OF THE RESERVE COMPONENTS OF THE ARMY CERTIFIED TO THE VETERANS ADMINISTRATION FOR RETIREMENT PAY BENEFITS TO BEGIN PRIOR TO JUNE 1, 1942, ARE ENTITLED TO FULL-TIME CREDIT FOR LONGEVITY PAY PURPOSES FOR TIME IN THE OFFICERS' RESERVE CORPS WHEN NOT ON ACTIVE DUTY AND TO HAVE THEIR RETIREMENT PAY BENEFITS ADJUSTED ACCORDINGLY EFFECTIVE JUNE 1, 1942.

B. WHETHER AN OFFICER OF ANY OF THE RESERVE COMPONENTS OF THE ARMY CERTIFIED FOR RETIREMENT PAY BENEFITS EFFECTIVE PRIOR TO JUNE 1, 1942, WHILE ENTITLED TO THE PAY OF THE FIRST PAY PERIOD IS ENTITLED TO HAVE HIS RETIREMENT PAY BENEFITS ADJUSTED EFFECTIVE JUNE 1, 1942, ON THE BASE PAY OF $1,800 A YEAR.

C. WHETHER OFFICERS OF THE OFFICERS' RESERVE CORPS CERTIFIED FOR RETIREMENT PAY BENEFITS EFFECTIVE PRIOR TO JUNE 1, 1942, WHO, IF RETAINED ON ACTIVE DUTY, WOULD HAVE BEEN ENTITLED TO THE PAY OF THE NEXT HIGHER PAY PERIOD UNDER SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, ARE ENTITLED TO HAVE THEIR RETIREMENT PAY BENEFITS ADJUSTED ACCORDINGLY EFFECTIVE JUNE 1, 1942.

D. IF THE ANSWER TO C, ABOVE, IS IN THE AFFIRMATIVE, ARE TEMPORARY OFFICERS OF THE ARMY OF THE UNITED STATES AND OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES ENTITLED TO THE SAME RETIREMENT PAY BENEFIT ADJUSTMENT?

SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED BY THE ACT OF JULY 25, 1939, 53 STAT. 1079, AND THE ACT OF DECEMBER 10, 1941, 55 STAT. 796, 10 U.S.C. ( SUPP. III) 456, IS AS FOLLOWS:

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS, OTHER THAN FOR SERVICE WITH THE CIVILIAN CONSERVATION CORPS, AND WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE MILITARY SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY, INCLUDING FOR THEIR DEPENDENTS THE BENEFITS OF SECTION 903 OF THIS TITLE, AS AMENDED. * * *

COMPARE SECTION 1 OF THE ACT OF SEPTEMBER 26, 1941, 55 STAT. 733, 10 U.S.C. ( SUPP. III) 456A.

UNDER THE EXPRESS TERMS OF THE SAID ACT OF APRIL 3, 1939, AS AMENDED, OFFICERS OF THE ARMY OF THE UNITED STATES (OTHER THAN OFFICERS OF THE REGULAR ARMY), OTHERWISE WITHIN THE PROVISIONS OF THE ACT, ARE ENTITLED "IN ALL RESPECTS" TO RECEIVE, INTER ALIA, THE "SAME * * * RETIREMENT PAY" AS WAS THEN, OR AS MIGHT THEREAFTER BE, PROVIDED BY LAW FOR "OFFICERS * * * OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.' NOTHING IS FOUND IN THE LEGISLATIVE HISTORY OF THE ACT CASTING DOUBT ON THE APPARENT INTENT OF THE LANGUAGE TO AUTHORIZE RETIREMENT PAY FOR SUCH OTHER OFFICERS, SUFFERING DISABILITY IN LINE OF DUTY WHILE EMPLOYED IN EXTENDED ACTIVE MILITARY SERVICE, ON A COMPLETE PARITY WITH THAT RECEIVED, OR WHICH MIGHT THEREAFTER BE RECEIVED, BY OFFICERS OF THE REGULAR ARMY OF CORRESPONDING GRADES AND LENGTH OF SERVICE.

BY SECTION 15 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 367, REFERRED TO IN YOUR LETTER, RETIRED OFFICERS OF THE REGULAR ARMY WHETHER RETIRED BEFORE OR AFTER THE EFFECTIVE DATE OF THAT ACT JUNE 1, 1942, ARE ENTITLED TO HAVE THEIR RETIRED PAY FROM AND AFTER SUCH DATE COMPUTED ON THE BASIS OF PAY PROVIDED IN THAT ACT. AS OTHER OFFICERS OF THE ARMY OF THE UNITED STATES ENTITLED TO RETIREMENT PAY UNDER THE SAID ACT OF APRIL 3, 1939, AS AMENDED, ARE ENTITLED BY ASSIMILATION TO RECEIVE THE SAME RETIREMENT PAY AS REGULAR ARMY OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE, THEY, LIKEWISE, ARE ENTITLED TO HAVE THEIR RETIREMENT PAY COMPUTED FROM AND AFTER JUNE 1, 1942, ON THE BASIS OF THE PAY PROVIDED IN THE PAY READJUSTMENT ACT OF JUNE 16, 1942, WHETHER THEY WERE CERTIFIED FOR RETIREMENT PAY BENEFITS TO BEGIN PRIOR TO JUNE 1, 1942, OR THEREAFTER. OTHERWISE, THEY WOULD NOT RECEIVE THE SAME RETIREMENT PAY AS PROVIDED BY LAW THEREAFTER FOR OFFICERS OF THE REGULAR ARMY OF CORRESPONDING GRADES AND LENGTH OF SERVICE. WITH RESPECT TO THE COMPUTATION OF THE RETIRED PAY AFTER JUNE 1, 1942, OF A REGULAR ARMY OFFICER RETIRED BEFORE THAT DATE, IT WAS SAID IN DECISION OF JULY 28, 1943, 23 COMP. GEN. 52, 54:

UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, MAJOR BYARS IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF PAY PROVIDED IN THAT ACT. THE RETIRED PAY TO WHICH HE IS THUS ENTITLED IS BASED ON WHAT HIS ACTIVE DUTY PAY WOULD HAVE BEEN HAD THE PERMANENT PAY PROVISIONS OF THAT ACT BEEN IN EFFECT WHEN HE WAS RETIRED.

IN A DECISION OF THE SAME DATE, 23 COMP. GEN. 59, 62, RESPECTING THE COMPUTATION OF THE RETIRED PAY OF A REGULAR NAVY OFFICER WHO HAD RETIRED PRIOR TO JUNE 1, 1942 (WHICH WOULD APPLY EQUALLY TO A REGULAR ARMY OFFICER), IT WAS SAID:

* * * IT MUST BE HELD THAT AN OFFICER WHO IS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY PRIOR TO JUNE 1, 1942, MAY COUNT FOR PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY SUCH SERVICE WHICH HE HAD AT THE TIME OF HIS RETIREMENT AS IS AUTHORIZED TO BE COUNTED BY SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED * * *.

SUCH RULES ARE LIKEWISE APPLICABLE IN THE COMPUTATION OF THE RETIREMENT PAY AFTER JUNE 1, 1942, AUTHORIZED FOR OTHER OFFICERS OF THE ARMY OF THE UNITED STATES BY THE SAID ACT OF APRIL 3, 1939, AS AMENDED, TO GIVE THEM THE SAME RETIREMENT PAY AS IS AUTHORIZED BY LAW AFTER THAT DATE FOR REGULAR ARMY OFFICERS OF "CORRESPONDING" GRADES AND LENGTH OF SERVICE, EXCEPT THAT THE SERVICE WHICH MAY BE COUNTED IN THE CASE OF SUCH OTHER OFFICERS IS THE SERVICE SPECIFICALLY AUTHORIZED TO BE COUNTED BY OFFICERS OF THE RESERVE COMPONENTS FOR PAY PURPOSES IN SECTION 3 OF THE PAY READJUSTMENT ACT, AS AMENDED RETROACTIVELY TO JUNE 1, 1942, BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, QUOTED IN YOUR LETTER, THAT BEING THEIR SERVICE FOR PAY PURPOSES WHICH WOULD BE COMPARABLE WITH THE ,CORRESPONDING" LENGTH OF SERVICE OF REGULAR ARMY OFFICERS FOR PAY PURPOSES UNDER SECTION 1 OF THE ACT, AS AMENDED.

ACCORDINGLY, ON SUCH BASIS, THE QUESTIONS STATED IN YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE, IT BEING NOTED, HOWEVER, WITH RESPECT TO QUESTION "B," THAT THE OFFICER'S RETIREMENT PAY WOULD NOT BE LIMITED TO THAT COMPUTED ON THE BASE PAY OF $1,800 AUTHORIZED FOR THE FIRST PAY PERIOD BY THE PAY READJUSTMENT ACT OF 1942, IF THE SERVICE AUTHORIZED TO BE COUNTED BY SECTION 3 OF THE ACT, AS AMENDED, WOULD HAVE ENTITLED HIM TO THE ACTIVE DUTY PAY OF A HIGHER PAY PERIOD AFTER JUNE 1, 1942, AND, WITH RESPECT TO QUESTION "C," THAT THE OFFICERS WOULD BE ENTITLED TO RETIREMENT PAY BASED ON THE ACTIVE DUTY PAY OF THE HIGHER PAY PERIOD, WHETHER IT BE REGARDED THAT HE WOULD HAVE BEEN ENTITLED TO SUCH HIGHER ACTIVE DUTY PAY AFTER JUNE 1, 1942, BY REASON OF SECTION 14 OF THE PAY READJUSTMENT ACT OR BY REASON OF SECTION 3 OF THE ACT, AS AMENDED RETROACTIVELY TO JUNE 1, 1942, BY THE SAID ACT OF DECEMBER 2, 1942. AS TO QUESTION "D," THERE WOULD APPEAR NO DOUBT THAT TEMPORARY OFFICERS OF THE ARMY OF THE UNITED STATES AND OFFICERS OF THE NATIONAL GUARD OF THE UNITED STATES ARE "OFFICERS * * * OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS * * * OF THE REGULAR ARMY," WITHIN THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, SUPRA, AND, HENCE, ARE ENTITLED TO THE SAME RETIREMENT PAY BENEFITS AND ADJUSTMENTS THEREUNDER AS OFFICERS OF THE OFFICERS' RESERVE CORPS. SEE SECTION 1 OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 2, AND THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728.