B-42361, AUGUST 31, 1944, 24 COMP. GEN. 171

B-42361: Aug 31, 1944

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MARINE CORPS OFFICERS IN THE SERVICE ON SAID DATE WHO WERE RETIRED SUBSEQUENT THERETO ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE ARE ENTITLED. ARE ENTITLED UNDER CIRCUMSTANCES HEREINAFTER STATED. HE WAS PLACED ON THE RETIRED LIST WITH THE RANK OF NEXT HIGHER GRADE UNDER THE PROVISIONS OF THE ACT OF JUNE 23. ACTIVE SERVICE SINCE RETIREMENT IS CLAIMED FOR THE PERIOD JUNE 4. IT IS STATED THAT THE OFFICER HAS BEEN CREDITED WITH THE RETIRED PAY OF A CAPTAIN WITH OVER TWENTY-FOUR YEARS' SERVICE. WAS RETIRED FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE (WOUNDS RECEIVED IN BATTLE) ON JANUARY 1. IT IS ASSUMED THAT HE WAS ON THE ACTIVE LIST JUNE 30. APPARENTLY YOUR DOUBT IN THE MATTER CONCERNS THE RIGHT OF OFFICERS OF THE MARINE CORPS WHO WERE IN ACTIVE SERVICE ON JUNE 30.

B-42361, AUGUST 31, 1944, 24 COMP. GEN. 171

PAY - RETIRED - LONGEVITY CREDITS - MARINE CORPS OFFICERS IN VIEW OF THE AUTHORIZATION IN SECTION 1 OF THE ACT OF JUNE 10, 1922, AS CONTINUED, IN EFFECT, BY SECTION 1 OF THE ACT OF JUNE 16, 1942, AS AMENDED, FOR OFFICERS IN THE SERVICE ON JUNE 31, 1922, TO INCLUDE ALL SERVICE THEN COUNTED IN COMPUTING LONGEVITY PAY, MARINE CORPS OFFICERS IN THE SERVICE ON SAID DATE WHO WERE RETIRED SUBSEQUENT THERETO ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE ARE ENTITLED, BY REASON OF SECTION 1612, REVISED STATUTES, ASSIMILATING MARINE CORPS OFFICERS TO ARMY OFFICERS FOR PAY PURPOSES, TO COUNT INACTIVE TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF RETIRED PAY, THE SAME AS OFFICERS OF THE ARMY UNDER THE ACT OF MARCH 2, 1903.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. C. S. SCHMIDT, U.S. MARINE CORPS, RETIRED, AUGUST 31, 1944:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF THE PAYMASTER GENERAL OF THE MARINE CORPS, A LETTER DATED MAY 26, 1944 FROM YOUR DEPUTY, CAPTAIN E. M. JONES, REQUESTING--- PRESUMABLY BY YOUR DIRECTION--- DECISION AS TO THE RATE OF RETIRED PAY TO WHICH LIEUTENANT COLONEL MURL CORBETT AND CAPTAIN CLYDE P. MATTESON, USMC, RETIRED, ARE ENTITLED UNDER CIRCUMSTANCES HEREINAFTER STATED.

IT APPEARS THAT COLONEL CORBETT HAD ENLISTED SERVICE IN THE MARINE CORPS FROM JANUARY 26, 1916, TO JULY 13, 1918; ENROLLED SERVICE AS SECOND LIEUTENANT IN THE MARINE CORPS RESERVE FROM JULY 14, 1918, TO NOVEMBER 13, 1918; COMMISSIONED SERVICE, U.S. MARINE CORPS FROM NOVEMBER 14, 1918, TO SEPTEMBER 3, 1920, AND FROM APRIL 4, 1921, TO OCTOBER 1, 1938, ON WHICH DATE HE RETIRED AS A CAPTAIN, PURSUANT TO SECTION 1453, REVISED STATUTES (SECTION 417, TITLE 34, U.S. CODE) FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE (WOUNDS RECEIVED IN BATTLE). HE WAS PLACED ON THE RETIRED LIST WITH THE RANK OF NEXT HIGHER GRADE UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1938, 52 STAT. 944, 950, HAVING BEEN COMMENDED SPECIALLY FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT. ON RETIREMENT THE OFFICER HAD COMPLETED TWENTY-TWO YEARS, ONE MONTH AND FIVE DAYS' ACTIVE DUTY. ACTIVE SERVICE SINCE RETIREMENT IS CLAIMED FOR THE PERIOD JUNE 4, 1940, TO APRIL 6, 1944, INDICATING THAT HE HAD COMPLETED OVER TWENTY-FIVE YEARS' ACTIVE SERVICE PRIOR AND SUBSEQUENT TO RETIREMENT AND OVER TWENTY- SEVEN YEARS' SERVICE INCLUDING INACTIVE TIME ON THE RETIRED LIST. IT IS STATED THAT THE OFFICER HAS BEEN CREDITED WITH THE RETIRED PAY OF A CAPTAIN WITH OVER TWENTY-FOUR YEARS' SERVICE.

WHILE THE SERVICE RECORD OF CAPTAIN MATTESON HAS NOT BEEN SUBMITTED, THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE U.S. NAVY AND MARINE CORPS, 1943, INDICATES THAT THE OFFICER ENTERED THE MARINE CORPS SEPTEMBER 11, 1917, AND WAS RETIRED FOR INCAPACITY RESULTING FROM AN INCIDENT OF THE SERVICE (WOUNDS RECEIVED IN BATTLE) ON JANUARY 1, 1936, AT WHICH TIME HE HAD PRIOR SERVICE FOR PAY PURPOSES OF EIGHTEEN YEARS, SIX MONTHS AND ONE DAY, AND IT IS ASSUMED THAT HE WAS ON THE ACTIVE LIST JUNE 30, 1922.

APPARENTLY YOUR DOUBT IN THE MATTER CONCERNS THE RIGHT OF OFFICERS OF THE MARINE CORPS WHO WERE IN ACTIVE SERVICE ON JUNE 30, 1922, AND RETIRED SUBSEQUENT TO MAY 29, 1934, ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, TO COUNT INACTIVE TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES IN COMPUTING THEIR RETIRED PAY.

ALTHOUGH NO VOUCHERS WERE SUBMITTED WITH YOUR REQUEST FOR ADVANCE DECISION (SEE 22 COMP. GEN. 588), IT IS ASSUMED THAT VOUCHERS COVERING THE RETIRED PAY OF THESE OFFICERS ARE BEFORE YOU FOR PAYMENT AND NO OBJECTION WILL BE RAISED IN THAT RESPECT IN THIS PARTICULAR INSTANCE.

A PROPER CONSIDERATION OF THE QUESTION PRESENTED WOULD SEEM TO REQUIRE A BRIEF REFERENCE TO SOME OF THE PRIOR STATUTES AND DECISIONS.

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 TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES TO INCREASE HIS RETIRED PAY. SECTION 1622, REVISED STATUTES, PROVIDED THAT MARINE CORPS OFFICERS SHALL BE RETIRED IN LIKE CASES IN THE SAME MANNER AND WITH THE SAME RELATIVE CONDITIONS AS ARE PROVIDED FOR OFFICERS OF THE ARMY. SECTION 1612, REVISED STATUTES, GAVE OFFICERS OF THE MARINE CORPS THE SAME PAY AND ALLOWANCES PROVIDED BY OR IN PURSUANCE OF LAW FOR OFFICERS OF LIKE GRADES IN THE INFANTRY OF THE ARMY. THE DECISION IN THE TYLER CASE, SUPRA, DID NOT AFFECT THE PAY OF OFFICERS OF THE NAVY ON THE RETIRED LIST, SINCE IT WAS BASED SOLELY UPON THE PROVISIONS OF A STATUTE APPLICABLE TO THE ARMY. SEE THORNLEY V. UNITED STATES, 113 U.S. 310; ALSO FAUST V. UNITED STATES, 42 C.1CLS. 94, HOLDING THAT RETIRED OFFICERS OF THE NAVY ON ACTIVE DUTY WERE NOT ENTITLED TO LONGEVITY CREDITS FOR TIME ON THE RETIRED LIST. THE EFFECT OF THE DECISION IN THE TYLER CASE WAS OVERCOME BY A PROVISO IN THE ARMY APPROPRIATION ACT OF MARCH 2, 1903, 32 STAT. 932, THAT---

* * * 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.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDED IN PART 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 * * *.

SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 626, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

EVERY OFFICER 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 UP TO THIRTY YEARS * * *.

THE ELEVENTH PARAGRAPH OF SECTION 1 OF SAID ACT PROVIDED AS FOLLOWS:

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. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY * * *. (ITALICS SUPPLIED.)

IN A DECISION OF MAY 19, 1928, 7 COMP. GEN. 735, 738, IT WAS STATED THAT-

THE VIEW THAT THE ACT OF 1903 IS REPEALED IS APPARENTLY BASED ON THE FIRST SENTENCE OF THE ELEVENTH PARAGRAPH OF SECTION 1 OF THIS ACT. THE SERVICE TO BE COUNTED BY OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, IS SPECIFICALLY LIMITED TO ACTIVE COMMISSIONED SERVICE--- AN OFFICER'S RETIREMENT RELIEVES HIM FROM ACTIVE COMMISSIONED SERVICE. THE CITED PROVISION RELATES ONLY TO OFFICERS APPOINTED ON AND AFTER JULY 1, 1922. THE SECOND SENTENCE OF THE ELEVENTH PARAGRAPH SETS UP A DIFFERENT RULE AS TO OFFICERS THEN IN THE SERVICE--- ALL SERVICE THEN COUNTED IN COMPUTING LONGEVITY PAY IS REQUIRED TO BE INCLUDED; AND OFFICERS ON THE RETIRED LIST JUNE 30, 1922, WERE "IN THE SERVICE.' THE LAWS AS TO SERVICE WHICH MAY BE COUNTED FOR PAY INCONSISTENT WITH, AND THEREFORE REPEALED BY, THE FIRST SENTENCE OF THE ELEVENTH PARAGRAPH, ARE NEVERTHELESS STILL EFFECTIVE AS TO OFFICERS IN THE SERVICE JUNE 30, 1922. * * * (ITALICS SUPPLIED.)

ALSO, SEE LEONARD V. UNITED STATES, 279 U.S. 40, 43; 23 COMP. GEN. 284.

THUS, DECISIONS OF BOTH THE ACCOUNTING OFFICERS AND THE COURTS SUPPORT THE VIEW THAT THE 1922 STATUTE DID NOT AFFECT THE RIGHT OF OFFICERS IN THE SERVICE ON JUNE 30, 1922, WHO THEREAFTER WERE RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, TO COUNT TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES IN COMPUTING THEIR RETIRED PAY.

SECTION 1 OF THE ACT OF MAY 29, 1934, 48 STAT. 811, AS AMENDED BY SECTION 15 (B) OF THE ACT OF JUNE 23, 1938, 52 STAT. 952, RELATING TO THE RETIREMENT, ETC., OF MARINE CORPS OFFICERS, PROVIDES:

THAT HEREAFTER COMMISSIONED OFFICERS OF THE MARINE CORPS SHALL BE AUTHORIZED IN NUMBER IN THE SAME PROPORTION TO AUTHORIZED ENLISTED STRENGTH AND SHALL BE DISTRIBUTED IN GRADES, PROMOTED, RETIRED, AND DISCHARGED IN LIKE MANNER AND WITH THE SAME RELATIVE CONDITIONS IN ALL RESPECTS AS PROVIDED FOR COMMISSIONED OFFICERS OF THE LINE OF THE NAVY, BY EXISTING LAW, OR BY LAWS HEREAFTER ENACTED, EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAID PROVISIONS TO THE MARINE CORPS, OR AS HEREIN OTHERWISE PROVIDED* * *.

THE ONLY CHANGE MADE BY THE 1938 ACT WAS THE PROVISION THAT MARINE CORPS OFFICERS "SHALL BE AUTHORIZED IN NUMBER IN THE SAME PROPORTION TO AUTHORIZED ENLISTED STRENGTH.'

THE SAID ACT OF MAY 29, 1934, IN EFFECT, REPEALED THE PROVISIONS OF SECTION 1622, REVISED STATUTES, EXTENDING THE ARMY RETIREMENT LAWS TO THE MARINE CORPS. THE ACT OF MARCH 2, 1903, SUPRA, IS NOT A LAW WITH RESPECT TO THE MANNER OF DISTRIBUTION, PROMOTION, RETIREMENT, OR DISCHARGE OF OFFICERS OF THE MARINE CORPS, RATHER IT IS A LAW AUTHORIZING THE CONTINUANCE OF CERTAIN PAY BENEFITS FOR OFFICERS RETIRED BECAUSE OF INCAPACITY AS A RESULT OF WOUNDS RECEIVED IN BATTLE. HENCE, THE 1934 ACT REASONABLY MAY NOT BE REGARDED AS AFFECTING THE RETIRED PAY OF OFFICERS OF THE MARINE CORPS COMING WITHIN THE SCOPE OF THE 1903 STATUTE.

ALTHOUGH THE ASSIMILATION OF OFFICERS OF THE MARINE CORPS WITH OFFICERS OF THE ARMY FOR RETIRED PAY PURPOSES BY SECTION 1612, REVISED STATUTES, WAS BROKEN BY SECTION 1 OF THE JOINT SERVICE PAY ACT OF 1922, 42 STAT. 625, WHICH SPECIFICALLY PROVIDED THE PAY AND ALLOWANCES FOR OFFICERS OF THE MARINE CORPS, PARAGRAPH 11 THEREOF EXPRESSLY AUTHORIZED OFFICERS IN THE SERVICE ON JUNE 30, 10922, TO INCLUDE IN THE COMPUTATION OF PAY ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY. 7 COMP. GEN. 735, SUPRA. SUCH PROVISION, IN EFFECT, HAS BEEN CONTINUED BY PARAGRAPH 11 OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED BY SECTION 1 OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037. ACCORDINGLY, OFFICERS OF THE MARINE CORPS, IN THE SERVICE ON JUNE 30, 1922, RETIRED SUBSEQUENT TO THAT DATE ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE ARE ENTITLED, BY REASON OF SECTION 1612, REVISED STATUTES, TO COUNT TIME ON THE RETIRED LIST FOR LONGEVITY PAY PURPOSES IN THE COMPUTATION OF THEIR RETIRED PAY, AND NEITHER THE ACT OF JUNE 10, 1922, THE ACT OF MAY 29, 1934, AS AMENDED, NOR ANY OTHER STATUTE WHICH HAS COME TO MY ATTENTION EXCLUDES MARINE CORPS OFFICERS WHO WERE IN THE SERVICE ON JUNE 30, 1922, AND RETIRED ON OR AFTER JULY 1, 1922, FROM THE BENEFITS OF THE ACT OF MARCH 2, 1903, IF OTHERWISE WITHIN THE PURVIEW OF THAT STATUTE. I HAVE TO ADVISE THAT THE RETIRED PAY OF THE MARINE CORPS OFFICERS HERE INVOLVED PROPERLY MAY BE COMPUTED ON THE BASIS OF OTHERWISE PROPER LONGEVITY INCREASES FOR TIME ON THE RETIRED LIST.