B-44091, DECEMBER 20, 1944, 24 COMP. GEN. 467

B-44091, DECEMBER 20, 1944, 24 COMP. GEN. 467

RETIRED OFFICERS - SAVED PAY; CONCURRENT RECEIPT OF RETIRED PAY AND SALARY AS U.S. MINISTER FOR PURPOSES OF COMPUTING THE RETIRED PAY OF A MARINE CORPS OFFICER WHO HAD LESS THAN 3 YEARS' SERVICE UPON RETIREMENT FOR DISABILITY PRIOR TO JUNE 30, 1922, BUT WHO, BECAUSE OF ACTIVE DUTY AFTER RETIREMENT, WAS ENTITLED ON THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942 TO A 5 PERCENT INCREASE IN BASE PAY FOR OVER 3 YEARS' SERVICE UNDER THE ACT, THE PROVISO TO SECTION 15 OF SAID ACT WHICH SAVED THE "PRESENT PAY" OF OFFICERS THEN ON THE RETIRED LIST DOES NOT ENTITLE THE OFFICER, UPON COMPLETION OF 5 YEARS' SERVICE, TO REVERT TO PRIOR PAY LAWS, NOW REPEALED, UNDER WHICH HE WOULD BE ENTITLED TO A 10 PERCENT INCREASE IN BASE PAY FOR LONGEVITY. IRRESPECTIVE OF THE FACT THAT A RETIRED MARINE CORPS OFFICER MAY BE RECEIVING RETIRED PAY "FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY" AND, HENCE, IS WITHIN THE EXCEPTION TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SUCH RETIRED PAY IS "SALARY" WITHIN THE MEANING OF THE PROHIBITION IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1945, AGAINST THE RECEIPT BY AMBASSADORS AND MINISTERS OF ANY OTHER SALARY FROM THE UNITED STATES, SO AS TO PRECLUDE THE OFFICER FROM RECEIVING RETIRED PAY WHILE RECEIVING THE SALARY OF A UNITED STATES MINISTER.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. C. S. SCHMIDT, U.S. MARINE CORPS, RETIRED, DECEMBER 20, 1944:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1944, WITH ENCLOSURES, REFERRED HERE BY ENDORSEMENT OF THE PAYMASTER GENERAL OF THE MARINE CORPS, REQUESTING DECISION AS TO THE PROPER BASIS FOR COMPUTATION OF THE RETIRED PAY OF COLONEL WILLIAM ALFRED EDDY, U.S.M.C. (RETIRED), BEGINNING AUGUST 13, 1944.

THE OFFICER'S SERVICE RECORD IS STATED TO BE AS FOLLOWS:

COLONEL EDDY ENLISTED IN THE NATIONAL GUARD (ACTIVE) OF THE STATE OF NEW JERSEY ON 28 NOVEMBER 1916, AND WAS DISCHARGED THEREFROM ON 7 JUNE 1917, WITH CHARACTER EXCELLENT. HE WAS ENROLLED AS A SECOND LIEUTENANT IN THE MARINE CORPS RESERVE 9 JUNE 1917, WAS ASSIGNED TO ACTIVE DUTY ON 28 JUNE 1917, AND REPORTED FOR DUTY ON 4 JULY 1917. ON SEPTEMBER 17, 1917, HE WAS DISENROLLED TO ACCEPT A TEMPORARY APPOINTMENT AS SECOND LIEUTENANT, U.S. MARINE CORPS; ACCEPTED APPOINTMENT 18 SEPTEMBER 1917; WAS PROMOTED A FIRST LIEUTENANT 6 SEPTEMBER, 1918, AND CAPTAIN 5 MARCH 1919, AND WAS PLACED ON THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS WITH THE RANK OF CAPTAIN ON 21 AUGUST 1919, FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, DUE TO AN INCIDENT OF THE SERVICE IN CONFORMITY WITH SECTION 1622 AND 1251 OF THE REVISED STATUTES, AND THE PROVISIONS OF THE ACT OF SECTION 1622 AND 1251 OF THE REVISED STATUTES, AND THE PROVISIONS OF THE ACT OF MAY 22, 1917. HE WAS APPOINTED A MAJOR ON THE RETIRED LIST ON 16JANUARY 1936 IN CONFORMITY WITH THE PROVISIONS OF THE ACT OF CONGRESS APPROVED THAT DATE. ( PUBLIC LAW NO. 416, 74TH CONGRESS).

HE WAS ASSIGNED TO ACTIVE DUTY ON 9 JUNE 1941, AND RELIEVED THEREFROM ON 12 AUGUST 1944 AND WAS ADVANCED ON THE RETIRED LIST ON 13 AUGUST 1944 TO THE RANK OF COLONEL, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10 OF THE ACT OF CONGRESS APPROVED 24 JULY 1921 ( U.S. CODE, TITLE 34, SECTION 3501).

ON THE DATE OF HIS RETIRMENT, 21 AUGUST 1919, HIS RETIRED PAY WAS COMPUTED AS 75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH LESS THAN FIVE YEARS SERVICE, AS ESTABLISHED BY THE ACT OF 11 MAY 1908, $150.00 PER MONTH. AS HIS LONGEVITY UPON RETIREMENT WAS TWO YEARS, ONE MONTH AND SEVENTEEN DAYS, NO ADJUSTMENT OF HIS RETIRED PAY WAS NECESSARY UNDER THE PROVISION OF THE JOINT SERVICE PAY ACT OF 1922 AS AMENDED BY THE ACT OF CONGRESS APPROVED 31 MAY 1924 (4CG 335).

COLONEL EDDY, BETWEEN 8 JUNE 1941 AND 12 AUGUST 1944, PERFORMED THREE YEARS, TWO MONTHS, AND FIVE DAYS ACTIVE DUTY, WHICH UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, GIVES HIM A TOTAL OF FIVE YEARS, THREE MONTHS AND TWENTY TWO DAYS LONGEVITY.

ON AUGUST 21, 1919, WHEN COLONEL EDDY WAS PLACED ON THE RETIRED LIST AS A CAPTAIN, THE BASE PAY OF THAT GRADE WAS $2,400 PER ANNUM UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108. THE LAW THEN IN EFFECT AS TO LONGEVITY PAY--- SECTION 1262, REVISED STATUTES--- GRANTED TO COMMISSIONED OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL 10 PERCENTUM OF THEIR CURRENT YEARLY PAY FOR EACH TERM OF FIVE YEARS' SERVICE.

THE ACT OF JUNE 10, 1922, 42 STAT. 625, REPEALED THE ACT OF MAY 11, 1908, AND SECTION 1262, REVISED STATUTES, SUPRA. UNDER THE 1922 ACT COLONEL EDDY WOULD HAVE BEEN ENTITLED TO BASE PAY OF $2,400 PER ANNUM. THE SAID ACT PROVIDED A LONGEVITY INCREASE OF 5 PERCENTUM FOR EACH THREE YEARS OF SERVICE. IT APPEARS THAT ON JULY 1, 1922, COLONEL EDDY HAD LESS THAN THREE YEARS' ACTIVE SERVICE TO HIS CREDIT; THEREFORE HIS RETIRED PAY WAS THE SAME WHETHER COMPUTED UNDER THE 1908 ACT OR UNDER THE ACT OF JUNE 10, 1922, THAT IS, 75 PERCENT OF $2,400 ANNUM, WITH NO INCREASE FOR LONGEVITY. ACCORDINGLY, HIS RETIRED PAY WAS NOT AFFECTED BY THE ACT OF MAY 8, 1926, 44 STAT. 417, APPLICABLE ONLY IF RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO JULY 1, 1922, WAS LESS THAN UNDER THE ACT EFFECTIVE ON THAT DATE.

SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, EFFECTIVE JUNE 1, 1942, PROVIDES IN PART AS FOLLOWS:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT 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 OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN NOW ON THE RETIRED LIST OR DRAWING RETAINER PAY, OR PERSONNEL IN AN EQUIVALENT STATUS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. * * *

ON AND AFTER JUNE 1, 1942, COLONEL EDDY'S RETIRED PAY IS PROPERLY FOR COMPUTATION ON A PERCENTUM OF THE RATES OF ACTIVE DUTY PAY PROVIDED IN THE ACT EFFECTIVE ON THAT DATE UNLESS SUCH COMPUTATION SHOULD RESULT IN A REDUCTION IN HIS THEN "PRESENT PAY.'

THE PURPOSE AND EFFECT OF THE PROVISO CONTAINED IN SECTION 15 OF THE ACT OF JUNE 16, 1942, SUPRA, IS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN THE ACT OF MAY 8, 1926, 44 STAT. 417, AND IN CONNECTION WITH THE EARLIER STATUTE ON THE RETIRED PAY BENEFITS OF OFFICERS RETIRED ON OR PRIOR TO JUNE 30, 1922, IT WAS HELD IN A DECISION OF A FORMER COMPTROLLER GENERAL, DATED AUGUST 17, 1928, 8 COMP. GEN. 77, 79, THAT THE INTENT OF THE SAVINGS PROVISION WAS TO GIVE TO OFFICERS SO RETIRED EQUAL PAY FOR EQUAL RANK AND LENGTH OF SERVICE AS THAT PROVIDED FOR OFFICERS RETIRED AFTER JUNE 30, 1922. IT WAS FURTHER STATED IN THE SAID DECISION THAT WHEN THAT EQUALITY IS ATTAINED THE OFFICER MUST CONTINUE TO BE PAID ON THE SAME EQUAL BASIS. THE PURPOSE WAS NOT TO ESTABLISH ANOTHER INEQUALITY BY WHICH AN OFFICER RETIRED PRIOR TO JUNE 30, 1922, MAY SECURE PAY UNDER THE ACT OF 1922 WHEN IT IS HIGHER BUT REVERT TO THE REPEALED LAWS WHEN PAY UNDER THOSE LAWS MAY BE HIGHER, THUS GIVING HIM GREATER RIGHTS THAN THE OFFICER RETIRED AFTER JUNE 30, 1922, THE EXPRESS PURPOSE OF THE PAY READJUSTMENT ACT BEING TO EQUALIZE PAY, NOT TO CREATE A DIFFERENT INEQUALITY. IT APPEARS EVIDENT THAT THE OFFICER'S RETIRED PAY WHEN COMPUTED ON THE BASIS OF BASE PAY PLUS LONGEVITY FOR ACTIVE SERVICE AFTER RETIREMENT, AS AUTHORIZED IN SECTION 15, SUPRA, IS GREATER THAN RETIRED PAY WITHOUT THE BENEFIT OF ANY LONGEVITY INCREASE, WHICH WAS ALL THAT WAS SAVED TO HIM FROM REDUCTION UNDER THE PROVISO IN SAID SECTION. SECTION 15 OF THE ACT OF JUNE 16, 1942, DOES NOT CONFER RETIRED PAY BENEFITS WHICH MIGHT HAVE ACCRUED UNDER REPEALED LAWS. THE "PRESENT PAY" REFERRED TO IN SECTION 15 DOES NOT MEAN "FUTURE PAY.' SEE 8 COMP. GEN. 77 SUPRA; DECISION A-25970, FEBRUARY 26, 1929.

ANSWERING YOUR FIRST QUESTION, YOU ARE ADVISED THAT COLONEL EDDY'S RETIREMENT PAY IS FOR COMPUTATION ON THE BASIS OF PAY PROVIDED IN THE ACT OF JUNE 16, 1942.

AS TO THE SECOND QUESTION, YOU STATE THAT ON AUGUST 12, 1944, COLONEL EDDY TOOK THE OATH OF OFFICE AS UNITED STATES MINISTER TO SAUDI ARABIA, THE COMPENSATION OF THIS OFFICE BEING $10,000 PER ANNUM, AND YOU ASK WHETHER, DURING HIS INCUMBENCY AS MINISTER, COLONEL EDDY IS ENTITLED TO RECEIVE RETIRED PAY AS AN OFFICER RETIRED "FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.'

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SUCH SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATIONS NUMBERED 1 (A), PART I, PARAGRAPH1.

COLONEL EDDY APPARENTLY CONTENDS THAT THE DISABILITY FOR WHICH HE WAS RETIRED, SEPTIC INFECTIONS OF THE RIGHT HIP JOINT, FOLLOWING PNEUMONIA AND ABSCESS, WAS THE DIRECT RESULT OF EXPOSURE IN THE PERFORMANCE OF HIS DUTIES AT A TIME WHEN HIS ORGANIZATION WAS ENGAGED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, AND HENCE THAT HE IS WITHIN THE EXCEPTION PROVIDED IN SECTION 212 (B), SUPRA. HOWEVER, IT APPEARS UNNECESSARY AT THIS TIME TO DECIDE THAT QUESTION.

THE ACT OF JUNE 28, 1944, 58 STAT. 397, PUBLIC LAW 365, 78TH CONGRESS, MAKING APPROPRIATIONS FOR THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE FOR THE FISCAL YEAR ENDING JUNE 30, 1945, PROVIDES IN PART:

SALARIES, AMBASSADORS AND MINISTERS: FOR SALARIES OF AMBASSADORS AND MINISTERS APPOINTED BY THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, TO SUCH COUNTRIES AND AT SUCH SALARY RATES, NOT EXCEEDING $10,000 PER ANNUM EACH FOR MINISTERS (EXCEPT ONE AT NOT EXCEEDING $12,000 PER ANNUM) AND NOT EXCEEDING $17,500 PER ANNUM EACH FOR AMBASSADORS, AS THE PRESIDENT MAY DETERMINE, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, $640,000, INCLUDING ALSO SALARIES AS AUTHORIZED BY SECTION 1740, REVISED STATUTES, AS AMENDED BY THE ACT OF APRIL 24, 1939 (22 U.S.C. 3, 121): PROVIDED, THAT NO SALARY SHALL BE PAID TO ANY OFFICIAL RECEIVING ANY OTHER SALARY FROM THE UNITED STATES GOVERNMENT * * *.

SIMILAR RESTRICTIONS AGAINST THE RECEIPTS BY AMBASSADORS AND MINISTERS OF ANY OTHER SALARY FROM THE UNITED STATES HAVE BEEN CONTAINED IN ANNUAL APPROPRIATION ACTS OF THE STATE DEPARTMENT SINCE 1906 (34 STAT. 287).

A RETIRED OFFICER OF THE NAVY RECEIVES "PAY" WHICH IS THE EQUIVALENT OF SALARY. FRANKLIN V. UNITED STATES, 29 C.1CLS. 6. A RETIRED OFFICER OF THE NAVY HOLDS AN OFFICE WITH A SALARY OR ANNUAL COMPENSATION ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, 28 STAT. 205, WHICH PROVIDES THAT:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED * * *.

A RETIRED ARMY OFFICER HOLDS AN OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894. 29 OPS. ATTY. GEN. 503; 14 COMP. GEN. 289; 11 COMP. DEC. 422. RETIRED PAY OF AN OFFICER OF THE ARMY CONFORMS TO THE ESSENTIAL REQUIREMENTS OF ALL LEGAL DEFINITIONS OF THE TERM "SALARY.' 22 COMP. DEC. 640. PAY OF A RETIRED OFFICER OF THE COAST GUARD IS SALARY WITHIN THE MEANING OF THE ACT OF MAY 10, 1916, 39 STAT. 120, WHICH PROVIDES THAT:

* * * NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

22 COMP. DEC. 673; ID. 689. ALSO, CF. BADEAU V. UNITED STATES, 130 U.S. 439; UNITED STATES V. TYLER, 105 U.S. 244.

FROM THE ABOVE-CITED CASES, IT MUST FOLLOW THAT RETIRED PAY OF AN OFFICER OF THE MARINE CORPS IS "SALARY" WITHIN THE LEGAL DEFINITION OF THAT TERM, AND THAT UNDER THE RESTRICTION IN THE ANNUAL STATE DEPARTMENT APPROPRIATION ACTS, A UNITED STATES MINISTER WHILE RECEIVING SALARY INCIDENT TO SUCH OFFICE MAY NOT RECEIVE RETIRED PAY AS AN OFFICER OF THE MARINE CORPS.

THEREFORE, WHETHER COLONEL EDDY IS OR IS NOT WITHIN THE EXCEPTION IN SECTION 212 (B) OF THE ACT OF JUNE 30, 1932, SUPRA, IS NOT HERE MATERIAL. IN EITHER CASE, HE COULD NOT LAWFULLY RECEIVE BOTH RETIRED PAY AND SALARY AS UNITED STATES MINISTER.