B-51002, NOVEMBER 13, 1945, 25 COMP. GEN. 388

B-51002: Nov 13, 1945

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IS THE PAY RECEIVED AT THE TIME OF RETIREMENT BY VIRTUE OF THE PERMANENT PAY PROVISIONS OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942. - WHO HAVE NO COMMISSIONED STATUS. ARE AS FOLLOWS: (A) WHETHER A MEMBER OF THE NAVY NURSE CORPS HOLDING A PERMANENT APPOINTMENT AS CHIEF NURSE (ENCL. IS ENTITLED TO RETIRED LIEUTENANT (JG). WHO WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE PAY COMPUTED AS 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" (BASE PAY PLUS LONGEVITY) WHICH SHE WAS RECEIVING AT THE TIME OF RETIREMENT. WHO WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE 1 MAY 1944 UNDER THE PROVISIONS OF THE 1930 LAW. IS ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" (BASE PAY PLUS LONGEVITY) WHICH SHE WAS RECEIVING AT TIME OF RETIREMENT.

B-51002, NOVEMBER 13, 1945, 25 COMP. GEN. 388

PAY - RETIRED - NAVY NURSES RETIRED FOR PHYSICAL DISABILITY THE PROVISIONS IN THE ACT OF DECEMBER 22, 1942, ASSIMILATING THE ACTIVE DUTY PAY AND ALLOWANCES OF MEMBERS OF THE ARMY NURSE CORPS AND THE NAVY NURSE CORPS TO THOSE AUTHORIZED FOR COMMISSIONED OFFICERS, BEING, IN EFFECT, MERELY PROVISIONS FOR A TEMPORARY INCREASE IN ACTIVE DUTY PAY IN WARTIME, MAKE NO CHANGE IN THE BASIS OF COMPUTING THE PERMANENT PAY OF NURSES ON THE ACTIVE OR RETIRED LIST. THE "ACTIVE SERVICE PAY" TO BE USED IN COMPUTING THE RETIRED PAY OF A MEMBER OF THE NAVY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1930, IS THE PAY RECEIVED AT THE TIME OF RETIREMENT BY VIRTUE OF THE PERMANENT PAY PROVISIONS OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, AND DOES NOT INCLUDE THE TEMPORARY WARTIME INCREASE IN ACTIVE DUTY PAY AUTHORIZED FOR NAVY NURSES BY THE PAY ASSIMILATION PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 22, 1942. SINCE THE ACT OF JUNE 20, 1930, AND SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942 SPECIFICALLY PROVIDE FOR THE RETIRED PAY OF MEMBERS OF THE NAVY NURSE CORPS--- WHO HAVE NO COMMISSIONED STATUS--- NEITHER THE ACT OF MAY 13, 1908, ASSIMILATING THE PAY AND ALLOWANCES OF NAVY NURSES TO THOSE OF ARMY NURSES, NOR THE SIMILAR ASSIMILATION PROVISIONS OF SECTION 7 OF THE TEMPORARY WARTIME ACT OF DECEMBER 22, 1942, EXTEND TO NAVY NURSES THE RETIREMENT BENEFITS AUTHORIZED UNDER SECTION 3 OF THE ACT OF JUNE 22, 1944, FOR MEMBERS OF THE ARMY NURSE CORPS TEMPORARILY APPOINTED IN THE ARMY OF THE UNITED STATES PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, AS AMENDED.

ASSISTANT COMPTROLLER YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 13, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 10, 1945 (FILE JAG:II:WJG:ZL16-4 (21) (OG), WITH ENCLOSURES, REQUESTING DECISION ON CERTAIN QUESTIONS RESPECTING THE CORRECT RATE OF RETIRED PAY OF MEMBERS OF THE NAVY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY SUBSEQUENT TO DECEMBER 22, 1942, UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1930, 46 STAT. 790, AS AMENDED, WHILE RECEIVING THE ACTIVE DUTY PAY PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, FOR MEMBERS OF THE NURSE CORPS DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER. THE QUESTIONS, AS SET FORTH BY THE CHIEF OF BUREAU OF SUPPLIES AND ACCOUNTS IN A MEMORANDUM ENCLOSED WITH YOUR LETTER, ARE AS FOLLOWS:

(A) WHETHER A MEMBER OF THE NAVY NURSE CORPS HOLDING A PERMANENT APPOINTMENT AS CHIEF NURSE (ENCL. (A) ( WITH RELATIVE RANK OF 1 JUNE 1943 UNDER THE PROVISIONS OF THE 1930 LAW, IS ENTITLED TO RETIRED LIEUTENANT (JG), WHO WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE PAY COMPUTED AS 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" (BASE PAY PLUS LONGEVITY) WHICH SHE WAS RECEIVING AT THE TIME OF RETIREMENT. THE NURSE IN QUESTION HAS OVER 24 YEARS SERVICE FOR PAY PURPOSES AND HAD SERVICE AS CHIEF NURSE TOTALING 5 YEARS AND 9 MONTHS.

(B) WHETHER A MEMBER OF THE NAVY NURSE CORPS HOLDING LIMITED APPOINTMENT AS CHIEF NURSE (ENCLS (B) AND (C/) WITH COMMISSIONED RANK OF LIEUTENANT (JG), WHO WAS RETIRED FOR PHYSICAL DISABILITY EFFECTIVE 1 MAY 1944 UNDER THE PROVISIONS OF THE 1930 LAW, IS ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" (BASE PAY PLUS LONGEVITY) WHICH SHE WAS RECEIVING AT TIME OF RETIREMENT. THE NURSE IN QUESTION HAD OVER 3 YEARS SERVICE FOR LONGEVITY PAY PURPOSES AND 1 YEAR AND 3 MONTHS SERVICE AS CHIEF NURSE.

(C) WHETHER A MEMBER OF THE NAVY NURSE CORPS INITIALLY APPOINTED AS ENSIGN ON 31 AUG 1942, WHO IS PLACED ON THE RETIRED LIST UNDER THE 1930 LAW FOR PHYSICAL DISABILITY WHILE HOLDING COMMISSIONED RANK OF LIEUTENANT (JG), TO WHICH APPOINTED BY THE PRESIDENT EFFECTIVE 1 MAR 1945 (ENCL (D) ( IS ENTITLED TO RETIRED PAY COMPUTED AS THE "ACTIVE SERVICE PAY" (BASE PAY PLUS LONGEVITY) WHICH SHE WAS RECEIVING AT TIME OF RETIREMENT.

(D) WHETHER A MEMBER OF THE NAVY NURSE CORPS, WHOSE PERMANENT GRADE IS CHIEF NURSE WITH THE RELATIVE RANK OF LIEUTENANT (JG,) BUT WHO HAS HELD AN APPOINTMENT AS ASSISTANT SUPERINTENDENT WITH THE RELATIVE RANK OF LIEUTENANT UNDER THE ACT OF JULY 3, 1942, RELATIVE RANK AND COMMISSIONED RANK OF COMMANDER UNDER THE ACT OF DECEMBER 22, 1942, AND FEBRUARY 26, 1944, RESPECTIVELY, AND WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER THE 1930 ACT, IS ENTITLED TO 75 PERCENTUM OF THE ACTIVE SERVICE PAY (BASE PAY PLUS LONGEVITY) WHICH SHE IS RECEIVING AT TIME OF RETIREMENT. THE NURSE IN QUESTION HAS OVER 24 YEARS SERVICE FOR LONGEVITY PAY PURPOSES, OVER 15 YEARS SERVICE AS CHIEF NURSE, AND OVER 6 YEARS SERVICE AS ASSISTANT SUPERINTENDENT.

THE VIEWS OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS ON THE MATTER, AS SET FORTH IN SAID MEMORANDUM, ARE IN PERTINENT PART AS FOLLOWS:

2. WHERE A MEMBER OF THE NAVY NURSE CORPS IS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1926 (34 U.S.C. 439) FOR SERVICE AND/OR AGE, SHE IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF 3 PERCENTUM OF THE ANNUAL ACTIVE BASE PAY WHICH SHE IS RECEIVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SERVICE RENDERED PRIOR TO RETIREMENT, NOT TO EXCEED 75 PERCENTUM OF SUCH ANNUAL ACTIVE BASE PAY AND, IN ADDITION, SUPPLEMENTAL ANNUAL RETIRED PAY FOR EACH COMPLETE YEAR OF ACTIVE SERVICE RENDERED IN EACH OF THE FOLLOWING GRADES: CHIEF NURSE, $18; ASSISTANT SUPERINTENDENT, $45; DIRECTOR, $45; ASSISTANT DIRECTOR, $45; SUPERINTENDENT, $75. WHEN PLACED ON THE RETIRED LIST FOR DISABILITY INCURRED IN LINE OF DUTY, THE RETIRED PAY IS FOR COMPUTATION AT THE RATE OF 75 PERCENTUM OF THE ACTIVE SERVICE PAY (ANNUAL BASE AND SUPPLEMENTAL ADDITIONS) (34 U.S.C. 436, 437) RECEIVED BY HER AT THE TIME OF TRANSFER TO THE RETIRED LIST. EACH OF THE CITED LAWS PROVIDES THAT THE INDIVIDUAL SHALL BE PLACED UPON THE NURSE CORPS RETIRED LIST IN THE GRADE TO WHICH SHE BELONGED AT TIME OF RETIREMENT, SUCH LANGUAGE BEING SIMILAR TO THE GENERAL LANGUAGE USED IN SECTION 1437, REVISED STATUTES (34 U.S.C. 389) WITH RESPECT TO OFFICERS OF THE NAVY RETIRED FROM ACTIVE SERVICE. THE ANNUAL BASE PAY AND SUPPLEMENTAL ADDITIONS TO BASE PAY OF MEMBERS OF THE ARMY AND NAVY NURSE CORPS SERVING AS SUPERINTENDENT, ASSISTANT SUPERINTENDENT, DIRECTOR, ASSISTANT DIRECTOR, AND CHIEF NURSE ARE SET FORTH IN SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942. HOWEVER, SUCH SECTION, INSOFAR AS IT PERTAINS TO MEMBERS OF THE ARMY OR NAVY NURSE CORPS ON ACTIVE DUTY, IS TEMPORARILY SUPERSEDED BY THE ACT OF DECEMBER 22, 1942 AND THE ACT OF JUNE 22, 1944.

3. THE ACT OF JULY 3, 1942, ESTABLISHED THE RELATIVE RANK OF: THE SUPERINTENDENT OF THE NAVY NURSE CORPS AS LIEUTENANT COMMANDER, THE ASSISTANT SUPERINTENDENT AS LIEUTENANT, CHIEF NURSES AS LIEUTENANT (JG), AND NURSES AS ENSIGN, WHICH COINCIDES WITH THE RELATIVE RANK PREVIOUSLY CONFERRED ON THE SUPERINTENDENT AND MEMBERS OF THE ARMY NURSE CORPS BY THE ACT OF JUNE 4, 1920. UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 22, 1942, WHICH MADE SECTION 3 OF SUCH ACT APPLICABLE TO MEMBERS OF THE NAVY NURSE CORPS, THE SUPERINTENDENT OF THE NAVY NURSE CORPS WAS GIVEN THE RELATIVE RANK OF CAPTAIN, AND THE BASE PAY OF THE SIXTH PAY PERIOD; SUCH ASSISTANT SUPERINTENDENTS OR DIRECTORS AS THE SECRETARY OF THE NAVY MAY DESIGNATE WERE GIVEN THE RELATIVE RANK OF COMMANDER OR LIEUTENANT COMMANDER, RESPECTIVELY, AND THE BASE PAY OF THE FIFTH OR FOURTH PAY PERIODS, RESPECTIVELY; ALL OTHER ASSISTANT SUPERINTENDENTS OR ASSISTANT DIRECTORS HAVE THE RELATIVE RANK OF LIEUTENANT AND THE BASE PAY OF THE THIRD PAY PERIOD; CHIEF NURSES HAVE THE RELATIVE RANK OF LIEUTENANT (JG) AND THE BASE PAY OF THE SECOND PAY PERIOD, AND NURSES HAVE THE RELATIVE RANK OF ENSIGN AND THE BASE PAY OF THE SECOND PAY PERIOD. SUCH LEGISLATION, AS WELL AS THE ACT OF FEBRUARY 26, 1944, HEREINAFTER REFERRED TO, EXPIRES BY LIMITATION SIX MONTHS AFTER THE TERMINATION OF THE PRESENT WAR.

4. IT WILL BE NOTED THAT THE ACT OF FEBRUARY 26, 1944, ENTITLED " AN ACT TO GRANT MILITARY RANK TO CERTAIN MEMBERS OF THE NAVY NURSE CORPS" PROVIDES THAT DURING THE PERIOD SPECIFIED THEREIN "THE SUPERINTENDENT AND ALL OTHER MEMBERS OF THE NAVY NURSE CORPS ENTITLED UNDER EXISTING LAWS TO RELATIVE RANK SHALL HAVE AND SHALL BE DESIGNATED BY THE (COMMISSIONED) RANK WHICH CORRESPONDS TO THE RELATIVE RANK HERETOFORE PROVIDED BY LAW ( SECTION 3 OF THE ACT OF DECEMBER 22, 1942) FOR SUCH SUPERINTENDENT AND MEMBERS, WITH THE PROVISO THAT SUCH AUTHORITY FOR CONFERENCE OF, AND DESIGNATION BY, RANK SHALL NOT ALTER, ENLARGE, OR MODIFY THE PROVISIONS OF LAW RELATING TO THEIR AUTHORITY ( ACT OF JULY 3, 1942) OR TO THE MANNER OF THEIR APPOINTMENT ( ACT OF MAY 13, 1908 AND SECTION 3 OF THE ACT OF DECEMBER 22, 1942.) THE INTENT OF SUCH LEGISLATION WAS TO CONFER UPON MEMBERS OF THE NAVY NURSE CORPS COMMISSIONED RANKS, EQUIVALENT TO THE RELATIVE RANKS THEY HELD UNDER THE ACT OF DECEMBER 22, 1942, AND THEREBY VEST IN THEM THE OFFICE AS WELL AS THE PAY AND ALLOWANCES PERTINENT THERETO. THE INCLUSION OF SECTION 2 WAS TO INSURE THAT APPOINTMENTS THEN HELD IN THE NAVY NURSE CORPS WOULD NOT BE VACATED BY THE ACCEPTANCE OF APPOINTMENTS OR PROMOTIONS THEREAFTER MADE PURSUANT TO LAW. IT WILL BE NOTED THAT COMMISSIONED RANK WAS SUBSEQUENTLY ATTAINED BY MEMBERS OF THE ARMY NURSE CORPS UNDER THE PROVISIONS OF THE ACT OF JUNE 22, 1944, SECTION 1 OF WHICH AUTHORIZED THE APPOINTMENT OF MEMBERS OF THAT CORPS AS OFFICERS IN THE ARMY OF THE UNITED STATES (10 U.S.C. 81) UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AS AMENDED BY THE ACT OF JULY 7, 1943 (10 U.S.C. 484) IN THE GRADES (RELATIVE RANK) PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, AND AUTHORIZED THEIR ASSIGNMENT TO THE ARMY NURSE CORPS OF THE ARMY OF THE UNITED STATES WITH THE PROVISO THAT THE MEMBERS OF THE ARMY NURSE CORPS SO APPOINTED AND ASSIGNED WOULD NOT, BY ACCEPTANCE OF SUCH APPOINTMENT, VACATE EXISTING APPOINTMENTS IN THE ARMY NURSE CORPS PREVIOUSLY ESTABLISHED BY THE ACT OF JULY 9, 1918, AS A PART OF THE MEDICAL DEPARTMENT OF THE UNITED STATES ARMY (10 U.S.C. 81, 161). (SEE EXECUTIVE ORDER 9454 OF JULY 10, 1944.) THE AUTHORITY OF MEMBERS OF THE ARMY NURSE CORPS AS SET FORTH IN SECTION 1 OF THE ACT OF JUNE 22, 1944, IS SUBSTANTIALLY THE SAME AS THE SCOPE OF AUTHORITY OF MEMBERS OF THE NAVY NURSE CORPS AS SET FORTH IN THE ACT OF JULY 3, 1942. IT APPEARS THAT THE IMMEDIATE EFFECT OR OBJECT OF THIS LEGISLATION WAS TO CONFER UPON MEMBERS OF THE ARMY NURSE CORPS OF THE UNITED STATES ARMY MILITARY RANK IN THE ARMY OF THE UNITED STATES (10 U.S.C. 484, 513) EQUIVALENT TO THE RELATIVE RANK THEN HELD UNDER THE ACT OF DECEMBER 22, 1942, AND TO ENTITLE THEM TO THE SAME PAY, ALLOWANCES, RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS RESERVE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE EXCEPT WHERE OTHERWISE EXPRESSLY PROVIDED IN THE ACT OF DECEMBER 22, 1942, OR ANY SUBSEQUENT ACT. APPARENTLY, THERE IS NO AUTHORITY TO PLACE COMMISSIONED MEMBERS OF THE OFFICERS RESERVE CORPS ON THE RETIRED LIST WITH PAY ON THE BASIS OF SERVICE, OR AGE AND SERVICE, AND, THEREFORE, IT WOULD APPEAR THAT THE PROVISIONS OF THE ACT OF MAY 13, 1926 WOULD STILL GOVERN THE RETIREMENT AND RETIRED PAY STATUS, OF MEMBERS OF THE ARMY NURSE CORPS TRANSFERRED TO THE RETIRED LIST FOR OTHER THAN PHYSICAL DISABILITY INCURRED WHILE HOLDING MILITARY RANK UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES.

5. SECTION 3 OF THE ACT OF JUNE 22, 1944, IN ADDITION TO EXTENDING EXISTING PROVISIONS OF LAW RELATIVE TO RETIREMENT OF NURSES TO CERTAIN OTHER PERSONS ENUMERATED IN SECTION 1, PROVIDES, INTER ALIA, THAT MEMBERS OF THE ARMY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY WHILE SERVING UNDER SUCH APPOINTMENT AND ASSIGNMENT "SHALL RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE HIGHEST GRADE IN WHICH SHE SERVED UNDER ANY SUCH APPOINTMENT AND ASSIGNMENT AND, NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, SHALL BE PLACED UPON THE ARMY NURSE CORPS RETIRED LIST IN SUCH HIGHEST GRADE.'

6. FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, THE ONLY PAY PRESCRIBED FOR MEMBERS OF THE NAVY NURSE CORPS ON ACTIVE DUTY OR SERVICE IS THE PAY PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, AND THEREFORE, THE "ACTIVE SERVICE PAY" BEING RECEIVED BY A MEMBER OF THE NAVY NURSE CORPS AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY IS THE PAY (BASE PAY AND LONGEVITY) PRESCRIBED IN THE CITED ACT. * * *

7. IN CONSIDERING THE FOREGOING QUESTIONS, IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL BE REQUESTED TO TAKE INTO CONSIDERATION THE FACT THAT THE COGNATE LAW ( ACT OF MAY 13, 1908) CREATING THE NAVY NURSE CORPS OF THE UNITED STATES NAVY AS THE COUNTERPART OF THE ARMY NURSE CORPS OF THE UNITED STATES ARMY ( ACT OF FEBRUARY 2, 1901) CONTAINS A PERMANENT ASSIMILATION PROVISION TO THE EFFECT THAT THE SUPERINTENDENTS, CHIEF NURSES, AND NURSES OF THE NAVY NURSE CORPS ARE ENTITLED TO RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS, AND PRIVILEGES AS THEN OR MIGHT THEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE NURSE CORPS OF THE ARMY. SINCE ACTIVE SERVICE PAY IS THE BASIS OF COMPUTATION OF RETIRED PAY, THE TERM "PAY," AS USED IN SUCH ASSIMILATION PROVISIONS, WOULD APPEAR TO INCLUDE WITHIN ITS SCOPE BOTH "ACTIVE" AND "RETIRED" PAY. IT IS CLEAR FROM THE PROVISIONS OF SECTION 7 OF THE ACT OF DECEMBER 22, 1942, THAT IT WAS THE INTENT OF THE CONGRESS TO CONTINUE IN EFFECT SUCH ASSIMILATIVE PROVISIONS, AND THE TEMPORARY APPOINTMENT OF MEMBERS OF THE ARMY NURSE CORPS IN THE ARMY OF THE UNITED STATES HAS NOT MATERIALLY DISTURBED THE COMPARATIVE STATUS OF MEMBERS OF THE NAVY NURSE CORPS, FROM THE STANDPOINT OF RANK OR PAY. THE SUPERINTENDENT OF THE ARMY NURSE CORPS IS A COLONEL AND THE SUPERINTENDENT OF THE NAVY NURSE CORPS IS A CAPTAIN, AND THEY ARE EACH ENTITLED TO THE PAY OF THE SIXTH PAY PERIOD, AND THE ALLOWANCES PRESCRIBED FOR THAT PAY PERIOD IN ACCORDANCE WITH SECTIONS 4, 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942. IN THE PAST, THE ACCOUNTING OFFICERS HAVE LIBERALLY CONSTRUED THE CITED PROVISION IN THE ACT OF MAY 13, 1908, AND HAVE GIVEN FULL RECOGNITION TO THE INTENT OF THE CONGRESS TO MAINTAIN PARITY BETWEEN THE NURSE CORPS OF THE ARMY AND THE NAVY AND TO ACCORD THEM EQUAL RIGHTS WITH RESPECT TO PAY (ACTIVE AND RETIRED), ALLOWANCES, EMOLUMENTS, AND PRIVILEGES. SUCH PARITY AS TO PAY, EMOLUMENTS, AND PRIVILEGES WOULD BE MAINTAINED IN CASE IT IS HELD THAT THE TERM "ACTIVE SERVICE PAY," AS USED IN THE 1930 ACT, MEANS THE BASE PAY, PLUS LONGEVITY, AT THE RATES PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, BEING RECEIVED BY MEMBERS OF THE NAVY NURSE CORPS AT TIME OF RETIREMENT FOR PHYSICAL DISABILITY ON AND AFTER 22 DEC 1942. SUCH CONSTRUCTION MIGHT GIVE A PECUNIARY ADVANTAGE TO MEMBERS RETIRED FOR PHYSICAL DISABILITY ON AND AFTER 22 DEC 1942, BUT IT IS EVIDENT FROM THE CONTEXT OF SECTION 3 OF THE ACT OF JUNE 22, 1944, THAT THE CONGRESS CONSIDERED THAT A MEMBER OF THE ARMY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY ON AND AFTER 7 DEC 1941, DATE OF COMMENCEMENT OF THE PRESENT WAR, AND 22 JUNE 1944, SHOULD, FROM 1 JULY 1944, RECEIVE RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF THE HIGHEST ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE ARMY NURSE CORPS, WITH THE PROVISO THAT NOTHING CONTAINED IN SUCH SECTION WOULD OPERATE TO REDUCE THE RETIRED PAY PRESENTLY RECEIVED BY SUCH MEMBER. ACCORDINGLY, A MEMBER OF THE ARMY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY BETWEEN 7 DEC 1941 AND 21 DEC 1942 IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE ACTIVE SERVICE PAY (ANNUAL BASE AND ADDITIONAL PAY PRESCRIBED IN SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942) (SEE ALSO SECTION 15 OF THE SAME ACT) WHICH SHE WAS RECEIVING AT TIME OF RETIREMENT. A MEMBER OF THE ARMY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY FROM 22 DEC 1942 TO 21 JUNE 1944 IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE ACTIVE SERVICE PAY (BASE PAY PLUS LONGEVITY PRESCRIBED IN THE ACT OF DECEMBER 22, 1942) WHICH SHE WAS RECEIVING AT THE TIME OF RETIREMENT.

8. UNDOUBTEDLY, THE CONGRESS WAS AWARE OF THE PROVISIONS OF THE ACT OF JUNE 20, 1930, RELATIVE TO COMPUTATION OF RETIRED PAY OF MEMBERS OF BOTH THE ARMY AND NAVY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY. CONSEQUENTLY, THE APPARENT PURPOSE AND LEGISLATIVE INTENT OF SECTION 3 OF THE ACT OF JUNE 22, 1944, WAS TO INSURE THAT A NURSE RETIRED FOR PHYSICAL DISABILITY ON AND AFTER 7 DEC. 1941 WOULD RECEIVE 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" WHICH SHE WAS RECEIVING AT TIME OF RETIREMENT, IRRESPECTIVE OF WHETHER SUCH "ACTIVE SERVICE PAY" WAS FOR COMPUTATION ON THE BASIS OF THE RATES PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942, THE ACT OF DECEMBER 22, 1942, OR THE ACT OF JUNE 22, 1944. THUS IT IS APPARENT THAT THE CONGRESS, IN ITS JUDGMENT, SAW FIT TO DISTINGUISH, INSOFAR AS RIGHT TO RETIRED PAY IS CONCERNED, BETWEEN MEMBERS OF THE ARMY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY INCURRED IN PEACETIME OR DURING A NATIONAL EMERGENCY, AND THOSE WHO ARE RETIRED FOR PHYSICAL DISABILITY INCURRED IN TIME OF WAR, IRRESPECTIVE OF WHETHER THE NURSES IN THE LATTER CATEGORY WERE RECEIVING AT TIME OF RETIREMENT ACTIVE SERVICE PAY UNDER PERMANENT OR TEMPORARY PROVISIONS OF LAW. IT IS ALSO ASSUMED THAT THE CONGRESS WAS AWARE OF THE ASSIMILATION PROVISIONS OF THE ACT OF MAY 13, 1908. IT IS RECOMMENDED THAT THIS PHASE OF THE SITUATION BE GIVEN DUE WEIGHT BY THE COMPTROLLER GENERAL IN ANSWERING THE QUESTIONS PRESENTED HEREIN, WHICH BASICALLY INVOLVE AN INTERPRETATION OF THE TERM "ACTIVE SERVICE PAY" AS USED IN THE ACT OF JUNE 20, 1930.

THE NAVY NURSE CORPS WAS ESTABLISHED BY THE ACT OF MAY 13, 1908, 35 STAT. 146, TO CONSIST OF ONE SUPERINTENDENT TO BE APPOINTED BY THE SECRETARY OF THE NAVY, AND AS MANY CHIEF NURSES, NURSES AND RESERVE NURSES AS MAY BE NEEDED, TO BE APPOINTED BY THE SURGEON GENERAL, WITH THE APPROVAL OF THE SECRETARY OF THE NAVY. THE SAID ACT FURTHER PROVIDED THAT "THE SUPERINTENDENT, CHIEF NURSES, AND NURSES SHALL RESPECTIVELY RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS, AND PRIVILEGES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE NURSE CORPS (FEMALE) OF THE ARMY," AND THAT RESERVE NURSES WHEN ON ACTIVE DUTY SHALL RECEIVE THE PAY AND ALLOWANCES OF NURSES. THE ACT OF JULY 9, 1918, 40 STAT. 879, AS AMENDED BY THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1211, ESTABLISHED IN THE ARMY NURSE CORPS THE GRADES OF SUPERINTENDENT, ASSISTANT SUPERINTENDENT, DIRECTOR, ASSISTANT DIRECTOR, CHIEF NURSE AND NURSE, AND PRESCRIBED THE RATES OF PAY FOR EACH GRADE. SECTION 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, ESTABLISHED NEW RATES OF ANNUAL PAY OF FEMALE NURSES OF THE ARMY NURSE CORPS AND NAVY NURSE CORPS AS FOLLOWS: * * * DURING THE FIRST THREE YEARS OF SERVICE, $840; FROM THE BEGINNING OF THE FOURTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE SIXTH YEAR OF SERVICE, $1,080; FROM THE BEGINNING OF THE SEVENTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE NINTH YEAR OF SERVICE, $1,380; FROM THE BEGINNING OF THE TENTH YEAR OF SERVICE, $1,560. SUPERINTENDENTS OF THE NURSE CORPS SHALL RECEIVE A MONEY ALLOWANCE AT THE RATE OF $2,500 A YEAR, ASSISTANT SUPERINTENDENTS, DIRECTORS, AND ASSISTANT DIRECTORS AT THE RATE OF $1,500 A YEAR, AND CHIEF NURSES AT THE RATE OF $600 A YEAR, IN ADDITION PAY AS NURSES. * * *

THE FIRST AND SECOND PARAGRAPHS OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 366, FURTHER INCREASED THE RATES OF PAY OF FEMALE NURSES, AS FOLLOWS:

* * * DURING THE FIRST THREE YEARS OF SERVICE, $1,080; FROM THE BEGINNING OF THE FOURTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE SIXTH YEAR OF SERVICE, $1,260; FROM THE BEGINNING OF THE SEVENTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE NINTH YEAR OF SERVICE, $1,440; FROM THE BEGINNING OF THE TENTH YEAR OF SERVICE UNTIL THE COMPLETION OF THE TWELFTH YEAR OF SERVICE, 1,620; FROM THE BEGINNING OF THE THIRTEENTH YEAR OF SERVICE, $1,800.

SUPERINTENDENTS OF THE NURSE CORPS SHALL RECEIVE PAY AT THE RATE OF $2,500 A YEAR, ASSISTANT SUPERINTENDENTS, DIRECTORS, AND ASSISTANT DIRECTORS AT THE RATE OF $1,500 A YEAR, AND CHIEF NURSES AT THE RATE OF $600 A YEAR, IN ADDITION TO THEIR BASE PAY AS NURSES. NURSES SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

WHILE THE QUESTIONS PRESENTED CONCERN PRIMARILY THE CORRECT RATE OF RETIRED PAY OF MEMBERS OF THE NAVY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF JUNE 20, 1930, IN VIEW OF THE STATEMENT CONTAINED IN THE SECOND PARAGRAPH OF THE MEMORANDUM, SUPRA, RESPECTING THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE NAVY NURSE CORPS RETIRED FOR AGE OR LENGTH OF SERVICE UNDER THE ACT OF MAY 13, 1926, IT IS BELIEVED THAT A BRIEF DISCUSSION OF THE LATTER ACT IS APPROPRIATE. THE SAID ACT OF MAY 13, 1926, 44 STAT. 531, 532, PROVIDES AS FOLLOWS:

THAT WHEN A MEMBER OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS SHALL HAVE SERVED THIRTY YEARS, OR SHALL HAVE REACHED THE AGE OF FIFTY YEARS, HAVING SERVED TWENTY YEARS, SHE MAY, IN THE DISCRETION OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, RESPECTIVELY, BE RETIRED FROM ACTIVE SERVICE AND PLACED ON A LIST, HEREBY CREATED IN EACH OF THE AFOREMENTIONED SERVICES AND DESIGNATED THE " NURSE CORPS RETIRED LIST," IN THE GRADE TO WHICH SHE BELONGED AT THE TIME OF HER RETIREMENT.

SEC. 2. THAT THE ANNUAL PAY OF A RETIRED MEMBER OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS SHALL BE 3 PERCENTUM OF THE ANNUAL ACTIVE BASE PAY WHICH SHE IS RECEIVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SERVICE RENDERED PRIOR TO RETIREMENT, BUT NOT EXCEEDING 75 PERCENTUM OF SUCH ANNUAL ACTIVE BASE PAY; AND, IN ADDITION, SUPPLEMENTAL ANNUAL RETIRED PAY FOR EACH COMPLETE YEAR OF ACTIVE SERVICE RENDERED PRIOR TO RETIREMENT IN EACH OF THE GRADES HEREAFTER NAMED, AS FOLLOWS: CHIEF NURSE, $18; ASSISTANT SUPERINTENDENT, $45; DIRECTOR, $45; ASSISTANT DIRECTOR, $45; SUPERINTENDENT, $75: PROVIDED, THAT IN COMPUTING THE PERIOD OF SERVICE IN ANY GRADE FOR SUCH SUPPLEMENTAL RETIRED PAY ANY PERIOD LESS THAN A YEAR SERVED IN ANY HIGHER GRADE MAY BE INCLUDED.

THE THIRD PARAGRAPH OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 366, PROVIDES AS FOLLOWS:

THE ANNUAL PAY OF A RETIRED MEMBER OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS RETIRED FOR OTHER THAN PHYSICAL DISABILITY SHALL BE 3 PERCENTUM OF THE TOTAL ANNUAL ACTIVE DUTY PAY WHICH SHE IS RECEIVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SERVICE RENDERED PRIOR TO RETIREMENT, BUT NOT EXCEEDING 75 PERCENTUM OF SUCH ANNUAL ACTIVE-DUTY PAY: PROVIDED, THAT IN COMPUTING THE PERIOD OF SERVICE FOR RETIRED PAY A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR: PROVIDED FURTHER, THAT FOR THE PURPOSE OF COMPUTING ELIGIBILITY FOR RETIREMENT AND RETIRED PAY, THERE SHALL BE CREDITED ACTIVE SERVICE IN THE ARMY NURSE CORPS AND IN THE NAVY NURSE CORPS, ACTIVE SERVICE AS CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, AND SERVICE AS A RESERVE NURSE ON ACTIVE DUTY SINCE FEBRUARY 2, 1901.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED, PROVIDES THAT ON AND AFTER JUNE 1, 1942, RETIRED OFFICERS, NURSES, ETC., SHALL HAVE THEIR RETIRED PAY COMPUTED, AS NOW AUTHORIZED BY LAW, ON THE BASIS OF THE PAY PROVIDED IN THIS ACT, AND THE SAID SECTION FURTHER PROVIDES THAT NOTHING CONTAINED IN THE SAID ACT SHALL OPERATE TO REDUCE THE PRESENT PAY RECEIVED BY OFFICERS, NURSES, ETC., ON THE RETIRED LIST.

THUS, PRIOR TO THE ENACTMENT OF SECTION 13 OF THE ACT OF JUNE 16, 1942, SUPRA, THE RETIRED PAY OF A NURSE RETIRED AFTER 30 YEARS OF SERVICE OR AFTER 20 YEARS' SERVICE IF OVER 50 YEARS OF AGE WAS COMPUTED, UNDER THE ACT OF MAY 13, 1926, SUPRA, ON THE BASIS OF 3 PERCENTUM OF THE "ANNUAL ACTIVE BASE PAY" WHICH SHE WAS RECEIVING AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SERVICE RENDERED PRIOR TO RETIREMENT, NOT EXCEEDING 75 PERCENTUM OF SUCH ANNUAL ACTIVE BASE PAY; AND, IN ADDITION THERETO, SUPPLEMENTAL ANNUAL RETIRED PAY OF $18, $45, AND $75 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE IN THE GRADE OF CHIEF NURSE, ASSISTANT DIRECTOR AND SUPERINTENDENT, RESPECTIVELY. HOWEVER, THE THIRD PARAGRAPH OF SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IN EFFECT, AMENDED SECTION 2 OF THE ACT OF MAY 13, 1926, INSOFAR AS CONCERNED THE METHOD OF COMPUTING THE RETIRED PAY OF ARMY AND NAVY NURSES RETIRED UNDER THE 1926 ACT, BY PROVIDING THAT THEREAFTER THE RETIRED PAY OF NURSES, OTHER THAN THOSE RETIRED FOR PHYSICAL DISABILITY, SHALL BE 3 PERCENT OF THE "TOTAL ANNUAL ACTIVE DUTY PAY"--- INSTEAD OF 3 PERCENT OF THE ANNUAL BASE PAY, PLUS THE SUPPLEMENTAL ADDITIONAL RETIRED PAY AUTHORIZED FOR EACH COMPLETE YEAR OF ACTIVE SERVICE IN THE GRADE OF CHIEF NURSE, ETC.- - RECEIVED AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF SERVICE RENDERED PRIOR TO RETIREMENT, NOT EXCEEDING 75 PERCENTUM OF SUCH ANNUAL ACTIVE DUTY PAY. OBVIOUSLY, THE "TOTAL ANNUAL ACTIVE DUTY PAY," REFERRED TO IN THE THIRD PARAGRAPH OF THE SAID SECTION 13, IS THE "ANNUAL BASE PAY" SET FORTH IN THE FIRST PARAGRAPH OF THE SAID SECTION, PLUS THE "PAY" AUTHORIZED IN THE SECOND PARAGRAPH THEREOF FOR SUPERINTENDENTS, ASSISTANT SUPERINTENDENTS, ETC.

THE RETIREMENT OF MEMBERS OF THE ARMY NURSE CORPS AND NAVY NURSE CORPS FOR PHYSICAL DISABILITY IN LINE OF DUTY IS AUTHORIZED UNDER THE ACT OF JUNE 20, 1930, 46 STAT. 790, WHICH PROVIDES AS FOLLOWS:

THAT PURSUANT TO REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, AS THE CASE MAY BE, WHEN A MEMBER OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS SHALL BE FOUND BY A BOARD OF MEDICAL OFFICERS TO HAVE BECOME DISABLED IN LINE OF DUTY FROM PERFORMING THE DUTIES OF A NURSE, AND SUCH FINDINGS ARE APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED, SHE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED UPON THE NURSE CORPS RETIRED LIST OF THE APPROPRIATE DEPARTMENT IN THE GRADE TO WHICH SHE BELONGED AT THE TIME OF HER RETIREMENT AND WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE SERVICE PAY RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST.

THUS, A MEMBER OF THE NAVY NURSE CORPS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF JUNE 20, 1930, SUPRA, IS ENTITLED TO 75 PERCENTUM OF THE "ACTIVE SERVICE PAY" RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST, WHICH ACTIVE SERVICE PAY IN THE CASE OF NURSES RETIRED SUBSEQUENT TO JUNE 1, 1942--- AT LEAST UNTIL ENACTMENT OF THE ACT OF DECEMBER 22, 1942, SUPRA, HEREINAFTER DISCUSSED -- CONSISTED OF THE "ANNUAL BASE PAY" AS A NURSE IN ADDITION TO THE "PAY" AUTHORIZED UNDER SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942 FOR THE SUPERINTENDENT, ASSISTANT SUPERINTENDENTS AND CHIEF NURSES. IN THIS CONNECTION, SEE THE ACT OF MARCH 3, 1931, 46 STAT. 1502, AUTHORIZING THE INCLUSION IN THE COMPUTATION OF THE RETIRED PAY OF CHIEF NURSES, ETC., OF THE ,MONEY ALLOWANCE" AUTHORIZED UNDER SECTION 13 OF THE ACT OF JUNE 10, 1922, SUPRA.

BY THE ACT OF JULY 3, 1942, 56 STAT. 646, MEMBERS OF THE NAVY NURSE CORPS WERE GRANTED RELATIVE RANK IN RELATION TO COMMISSIONED OFFICERS OF THE NAVY AS FOLLOWS: THE SUPERINTENDENT, THE RELATIVE RANK OF LIEUTENANT COMMANDER; ASSISTANT SUPERINTENDENTS, THE RELATIVE RANK OF LIEUTENANT; CHIEF NURSES, THE RELATIVE RANK OF LIEUTENANT (JG); NURSES, THE RELATIVE RANK OF ENSIGN. THE LATTER STATUTE--- WHICH IS SIMILAR TO THE ACT OF JUNE 4, 1920, 41 STAT. 766, CONFERRING RELATIVE RANK ON MEMBERS OF THE ARMY NURSE CORPS--- DID NOT OPERATE TO ENTITLE MEMBERS OF THE NURSE COR TO THE PAY AND ALLOWANCES PRESCRIBED FOR OFFICERS OF SIMILAR RANK IN TH ARMY AND NAVY. SEE WOOD V. UNITED STATES, 107 U.S. 414. SECTION 1 OF THE ACT OF FEBRUARY 26, 1944, 58 STAT. 105, PROVIDES THAT, DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER, THE SUPERINTENDENT AND MEMBERS OF THE NAVY NURSE CORPS ENTITLED TO RELATIVE RANK UNDER EXISTING LAW "SHALL BE DESIGNATED BY THE RANK WHICH CORRESPONDS TO THE RELATIVE RANK HERETOFORE PROVIDED BY LAW FOR SUCH SUPERINTENDENT AND MEMBERS," AND SECTION 2 THEREOF, 58 STAT. 105, PROVIDES THAT NOTHING CONTAINED IN THE SAID ACT SHALL ALTER, ENLARGE OR MODIFY THE PROVISION OF LAW RELATING TO THE MANNER OF THEIR APPOINTMENT. THE SAID ACT DID NOT MATERIALLY AFFECT THE STATUS OF MEMBERS OF THE NAVY NURSE CORPS, THAT IS, IT DID NOT GRANT THEM COMMISSIONS IN THE NAVY, OR EXTEND TO THEM THE BENEFITS OF LAWS APPLICABLE TO COMMISSIONED OFFICERS OF THE NAVY. HOWEVER, DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER, THE ACTIVE DUTY PAY AND ALLOWANCES OF MEMBERS OF THE ARMY NURSE CORPS AND NAVY NURSE CORPS WERE ASSIMILATED TO THOSE AUTHORIZED FOR COMMISSIONED OFFICERS BY THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072, 1073, 1074, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS: THAT, HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, THE MEMBERS OF THE ARMY NURSE CORPS SHALL HAVE RELATIVE RANK AND RECEIVE PAY AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS, WITHOUT DEPENDENTS, OF THE REGULAR ARMY IN THE SIXTH TO THE FIRST PAY PERIODS, RESPECTIVELY.

SEC. 3. THE SUPERINTENDENT OF THE ARMY NURSE CORPS SHALL RECEIVE PAY AND ALLOWANCES OF THE SIXTH PAY PERIOD AND HAVE THE RELATIVE RANK OF COLONEL; SUCH ASSISTANT SUPERINTENDENTS OR DIRECTORS AS THE SECRETARY OF WAR MAY DESIGNATE SHALL RECEIVE PAY AND ALLOWANCES OF THE FIFTH OR FOURTH PAY PERIODS AND HAVE THE RELATIVE RANK OF LIEUTENANT COLONEL OR MAJOR, RESPECTIVELY; ONE CHIEF DIETITIAN MAY BE DESIGNATED BY THE SECRETARY OF WAR AS DIRECTOR OF DIETITIANS AND ONE CHIEF PHYSICAL THERAPY AIDE MAY BE DESIGNATED BY THE SECRETARY OF WAR AS DIRECTOR OF PHYSICAL THERAPY AIDES, EACH TO HAVE THE RELATIVE RANK OF MAJOR AND RECEIVE THE PAY AND ALLOWANCES OF THE THIRD PAY PERIOD; ALL OTHER ASSISTANT SUPERINTENDENTS AND ASSISTANT DIRECTORS, CHIEF DIETITIANS AND CHIEF PHYSICAL THERAPY AIDES SHALL RECEIVE PAY AND ALLOWANCES OF THE THIRD PAY PERIOD AND HAVE THE RELATIVE RANK OF LIEUTENANT; AND HEAD NURSES, NURSES, DIETITIANS AND PHYSICAL THERAPY AIDES SHALL RECEIVE PAY AND ALLOWANCES OF THE FIRST PAY PERIOD AND HAVE THE RELATIVE RANK OF SECOND LIEUTENANT. EVERY PERSON PAID UNDER THE PROVISIONS OF THIS ACT SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HER PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS, AND DURING ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE SECRETARY OF WAR, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, AN INCREASE IN BASE PAY OF 10 PERCENTUM. IN COMPUTING SERVICE OF MEMBERS OF THE ARMY NURSE CORPS THERE SHALL BE CREDITED ACTIVE SERVICE IN THE ARMY NURSE CORPS AND IN THE NAVY NURSE CORPS, ACTIVE SERVICE AS CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, AND SERVICE AS A RESERVE NURSE ON ACTIVE DUTY SINCE FEBRUARY 2, 1901. IN COMPUTING SERVICE OF FEMALE DIETETIC AND PHYSICAL THERAPY PERSONNEL THERE SHALL BE CREDITED ALL ACTIVE FULL-TIME SERVICE (EXCEPT AS A STUDENT OR APPRENTICE) IN THE DIETETIC OR PHYSICAL THERAPY CATEGORIES RENDERED SUBSEQUENT TO APRIL 6, 1917, AS A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT.

SEC. 7. THAT HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, THE SUPERINTENDENT AND ALL OTHER MEMBERS OF THE NAVY NURSE CORPS SHALL HAVE RELATIVE RANK AND BE ENTITLED TO RECEIVE THE SAME PAY, AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES AS ARE AUTHORIZED BY THIS ACT FOR CORRESPONDING GRADES AND RELATIVE RANKS IN THE ARMY NURSE CORPS. THE SECRETARY OF THE NAVY IS AUTHORIZED TO USE APPROPRIATIONS AVAILABLE TO THE NAVAL ESTABLISHMENT TO CARRY INTO EFFECT THE PROVISIONS OF THIS SECTION.

IT WILL BE NOTED THAT THE PROVISIONS OF THE LATTER ACT ARE LIMITED IN THEIR APPLICATION TO THE PRESENT WAR AND SIX MONTHS THEREAFTER. THEY MAKE NO CHANGE IN THE BASIS OF COMPUTING THE PERMANENT PAY OF NURSES ON THE ACTIVE OR RETIRED LIST BUT ARE, IN EFFECT, MERELY PROVISIONS FOR A TEMPORARY INCREASE IN ACTIVE DUTY PAY IN TIME OF WAR. IT IS A WELL SETTLED RULE THAT, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY TO THE CONTRARY, EXCEPTIONAL PAY OR INCREASES OF PAY GIVEN FOR SPECIAL SERVICES ON ACTIVE DUTY OR UNDER SPECIAL CIRCUMSTANCES INCIDENT TO ACTUAL SERVICE, SUCH AS TEMPORARY INCREASES OF ACTIVE DUTY PAY IN TIME OF WAR, DO NOT ENTER INTO THE COMPUTATION OF RETIRED PAY. SEE MURPHY V. UNITED STATES, 38 C.1CLS. 511; 23 COMP. GEN. 52, AND CASES CITED THEREIN. WHILE THE ACT OF JUNE 20, 1930, SUPRA, PROVIDES THAT NURSES RETIRED FOR PHYSICAL DISABILITY SHALL BE PLACED ON THE RETIRED LIST OF THE NAVY NURSE CORPS WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE "ACTIVE SERVICE PAY RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST," SUCH PROVISION, UNDER THE RULE HEREINBEFORE STATED, MUST BE REGARDED AS HAVING REFERENCE TO THE ACTIVE SERVICE PAY RECEIVED AT THE TIME OF RETIREMENT BY VIRTUE OF THE PERMANENT PAY PROVISIONS APPLICABLE TO NURSES AND NOT TO THE TEMPORARY INCREASES OF PAY RESULTING FROM STATUTES AUTHORIZING TEMPORARY WARTIME INCREASES FOR PERSONS PERFORMING ACTIVE DUTY. SEE OPINION DATED FEBRUARY 2, 1944, OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, REACHING A CONCLUSION IN CONSIDERING THE ACT OF DECEMBER 22,1942, AS APPLIED TO ARMY NURSES RETIRED UNDER THE ACT OF JUNE 20, 1930.

THE ACT OF JUNE 22, 1944, 58 STAT. 324, AUTHORIZED, INTER ALIA, THE APPOINTMENT OF MEMBERS OF THE ARMY NURSE CORPS AS OFFICERS IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, 55 STAT. 728, AS AMENDED, IN THE GRADES PRESCRIBED IN THE ACT OF DECEMBER 22, 1942, AND SECTION 2 OF THE SAID ACT, 58 STAT. 325, GRANTS NURSES TEMPORARILY APPOINTED IN THE ARMY OF THE UNITED STATES, THEIR DEPENDENTS AND BENEFICIARIES, ALL THE RIGHTS, PRIVILEGES AND BENEFITS ACCORDED IN LIKE CASES TO OTHER PERSONS APPOINTED UNDER THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, EXCEPT WHERE OTHERWISE EXPRESSLY PROVIDED THEREIN OR IN ANY SUBSEQUENT ACT. AND SECTION 3 OF THE SAID ACT PROVIDES AS FOLLOWS:

IN ADDITION TO MEMBERS OF THE ARMY NURSE CORPS, ANY PERSON APPOINTED AND ASSIGNED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL BE ELIGIBLE TO BE RETIRED UNDER ANY LAW PROVIDING FOR THE RETIREMENT OF MEMBERS OF THE ARMY NURSE CORPS, AND ANY SUCH PERSON, INCLUDING MEMBERS OF THE ARMY NURSE CORPS,WHO, WHILE SERVING UNDER SUCH APPOINTMENT AND ASSIGNMENT, IS SO RETIRED FOR DISABILITY SHALL RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE HIGHEST GRADE IN WHICH SHE SERVED UNDER ANY SUCH APPOINTMENT AND ASSIGNMENT, AND, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SHALL BE PLACED UPON THE ARMY NURSE CORPS RETIRED LIST IN SUCH HIGHEST GRADE. ANY MEMBER OF THE ARMY NURSE CORPS RETIRED BETWEEN DECEMBER 7, 1941, AND THE DATE OF ENACTMENT OF THIS ACT FOR DISABILITY AND ANY FEMALE DIETITIAN OR PHYSICAL/THERAPY AIDE SO RETIRED BETWEEN JANUARY 12, 1943, AND THE DATE OF ENACTMENT OF THIS ACT SHALL RECEIVE, EFFECTIVE ON THE FIRST DAY OF THE FIRST MONTH NEXT FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE HIGHEST ACTIVE DUTY BASE AND LONGEVITY PAY RECEIVED BY HER WHILE SERVING IN THE ARMY NURSE CORPS OR MEDICAL DEPARTMENT OF THE ARMY, AS THE CASE MAY BE, DURING THE ABOVE-CITED APPLICABLE PERIOD: PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL OPERATE TO REDUCE THE RETIRED PAY PRESENTLY RECEIVED BY ANY NURSE, FEMALE DIETITIAN, OR PHYSICAL/THERAPY AIDE.

IT IS URGED IN THE ENCLOSURE OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS THAT MEMBERS OF THE NAVY NURSE CORPS ARE ENTITLED TO THE TEMPORARY RETIREMENT BENEFITS GRANTED MEMBERS OF THE ARMY NURSE CORPS UNDER SECTION 3 OF THE ACT OF JUNE 22, 1944, SUPRA, BY REASON OF THE PROVISIONS OF THE ACT OF MAY 13, 1908, AND SECTION 7 OF THE ACT OF DECEMBER 22, 1942, SUPRA. AS HEREINBEFORE STATED, THE ACT OF MAY 13, 1908, PROVIDED THAT MEMBERS OF THE NAVY NURSE CORPS SHALL RECEIVE THE SAME PAY, ALLOWANCES, EMOLUMENTS AND PRIVILEGES AS NOW ARE OR HEREAFTER MAY BE PROVIDED BY LAW FOR MEMBERS OF THE ARMY NURSE CORPS. WHILE THE 1908 ACT, IN EFFECT, ASSIMILATED THE PAY AND ALLOWANCES OF MEMBERS OF THE NAVY NURSE CORPS WITH THOSE AUTHORIZED FOR MEMBERS OF THE ARMY NURSE CORPS, THE SAID ACT DOES NOT OPERATE TO CONTINUE SUCH ASSIMILATION WHEN THE CONGRESS HAS MADE SPECIFIC PROVISIONS FOR THE PAY AND ALLOWANCES AND OTHER BENEFITS OF MEMBERS OF THE NAVY NURSE CORPS. SEE 22 COMP. GEN. 171, AND CASES CITED THEREIN. IN THIS CONNECTION, SECTION 13 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, MADE SPECIFIC PROVISION FOR THE PAY AND ALLOWANCES OF MEMBERS OF THE NAVY NURSE CORPS; THE ACT OF MAY 13, 1926, 44 STAT. 531, SPECIFICALLY PROVIDES FOR THE RETIREMENT OF MEMBERS OF THE NAVY NURSE CORPS FOR DISABILITY IN LINE OF DUTY; AND SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, PRESCRIBES THE RATES OF PAY AND THE ALLOWANCES OF MEMBERS OF THE NAVY NURSE CORPS, AS WELL AS THE BASIS OF COMPUTING THE RETIRED PAY OF NURSES RETIRED FOR OTHER THAN PHYSICAL DISABILITY. SECTION 7 OF THE ACT OF DECEMBER 22, 1942, SUPRA, GRANTED MEMBERS OF THE NAVY NURSE CORPS, DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER,"THE SAME PAY, AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES" AS ARE AUTHORIZED IN THE SAID ACT FOR CORRESPONDING GRADES IN THE ARMY NURSE CORPS. BUT, AS THE ACT OF DECEMBER 22, 1942, IS TEMPORARY LEGISLATION APPLICABLE TO PERSONS SERVING ON ACTIVE DUTY IT MAY NOT BE VIEWED AS AMENDING OR MODIFYING EXISTING LAWS RELATING TO THE RETIREMENT AND RETIRED PAY OF NAVY NURSES, NOR MAY THAT STATUTE BE REGARDED AS GRANTING TO NAVY NURSES THE BENEFITS AND PRIVILEGES OF TEMPORARY RETIREMENT LAWS WHICH THEREAFTER MIGHT BE ENACTED SOLELY FOR THE BENEFIT OF MEMBERS OF THE ARMY NURSE CORPS AND CERTAIN OTHER MEMBERS OF THE MEDICAL DEPARTMENT OF THE ARMY. HENCE, THE CONGRESS HAVING MADE SPECIFIC PROVISION FOR THE ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY OF MEMBERS OF THE NAVY NURSE CORPS, IT NECESSARILY FOLLOWS THAT THE ASSIMILATION PROVISIONS IN THE ACTS OF MAY 13, 1908, AND DECEMBER 22, 1942, MAY NOT BE VIEWED AS EXTENDING TO NAVY NURSES THE RETIREMENT BENEFITS AUTHORIZED UNDER SECTION 3 OF THE ACT OF JUNE 22, 1944, FOR MEMBERS OF THE ARMY NURSE CORPS AND CERTAIN OTHER PERSONNEL OF THE MEDICAL DEPARTMENT OF THE ARMY TEMPORARILY APPOINTED IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, AS AMENDED.

ACCORDINGLY, IN RESPONSE TO THE SPECIFIC QUESTIONS PRESENTED, INVOLVING CASES OF NURSES RETIRED SUBSEQUENT TO DECEMBER 22, 1942, FOR PHYSICAL DISABILITY UNDER THE ACT OF JUNE 20, 1930, I HAVE TO ADVISE THAT THE CHIEF NURSE REFERRED TO IN QUESTION (A), HAVING BEEN RETIRED AS A CHIEF NURSE, IS ENTITLED TO 75 PERCENTUM OF THE ACTIVE SERVICE PAY OF A CHIEF NURSE, AS PRESCRIBED IN SECTION 13 OF THE PAY READJUSTMENT ACT OF 1942, THAT IS, 75 PERCENTUM OF $2,400 ( $1,800 MAXIMUM PAY AS A NURSE WITH 13 OR MORE YEARS' SERVICE, PLUS $600 ADDITIONAL PAY AUTHORIZED FOR CHIEF NURSES), OR $1,800 PER ANNUM. WITH RESPECT TO QUESTION (B), IT APPEARS THE NURSE REFERRED TO THEREIN IS A RESERVE NURSE APPOINTED PURSUANT TO THE ACT OF MAY 13, 1908, AND THAT THE "LIMITED APPOINTMENT" AS CHIEF NURSE WAS FOR THE PRESENT WAR AND SIX MONTHS THEREAFTER. CF. 27 COMP. DEC. 952. IT HAS BEEN HELD THAT RESERVE NURSES RETIRED UNDER THE ACT OF JUNE 20, 1930, WHILE IN THE ACTIVE SERVICE OF THE UNITED STATES ARE ENTITLED TO THE RETIRED PAY PROVIDED THEREIN FOR REGULAR NURSES. SEE THORSON V. UNITED STATES, 79 C.1CLS. 282, AND A-44927, FEBRUARY 18, 1935. HENCE, THE CHIEF NURSE REFERRED TO IN QUESTION (B), HAVING OVER THREE YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, IS ENTITLED TO BE RETIRED "IN THE GRADE TO WHICH SHE BELONGED AT THE TIME OF HER RETIREMENT AND WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE SERVICE PAY RECEIVED BY HER AT THE TIME OF HER TRANSFER TO THE RETIRED LIST," THAT IS, 75 PERCENTUM OF $1,860 ( $1,260 AS A NURSE WITH OVER THREE YEARS' SERVICE, PLUS $600 ADDITIONAL PAY AS A CHIEF NURSE) OR $1,395 PER ANNUM.

THE NURSE REFERRED TO IN QUESTION (C) APPEARS TO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY WHILE HOLDING THE RELATIVE RANK OF LIEUTENANT (JG/--- THE RELATIVE RANK AUTHORIZED FOR A CHIEF NURSE--- BUT THERE IS NO SHOWING WHETHER SHE HAD BEEN APPOINTED A CHIEF NURSE PRIOR TO HER RETIREMENT. HENCE, IF SHE ACTUALLY WAS APPOINTED A CHIEF NURSE PRIOR TO RETIREMENT SHE WOULD BE ENTITLED TO THE RETIRED PAY OF A CHIEF NURSE COMPUTED ON THE BASIS INDICATED IN QUESTIONS (A) AND (B). BUT, IF NOT ACTUALLY APPOINTED A CHIEF NURSE PRIOR TO RETIREMENT SHE WOULD BE ENTITLED ONLY TO THE RETIRED PAY AUTHORIZED FOR A NURSE. IF THE NURSE REFERRED TO IN QUESTION (D) WAS RETIRED IN THE GRADE OF ASSISTANT SUPERINTENDENT, WITH OVER 24 YEARS FOR LONGEVITY PAY PURPOSES, SHE WOULD BE ENTITLED TO 75 PERCENTUM OF $3,300 ( $1,800 BASE PAY AS A NURSE PLUS $1,500, THE PAY PRESCRIBED FOR ASSISTANT SUPERINTENDENTS) OR $2,475 PER ANNUM.