B-55467, JUNE 12, 1946, 25 COMP. GEN. 847

B-55467: Jun 12, 1946

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" AN OFFICER WHOSE PAY AS A CHIEF WARRANT OFFICER WAS SAVED TO HIM WHEN TEMPORARILY APPOINTED AS SECOND LIEUTENANT IS NOT SAVED THE RETIRED PAY OF A CHIEF WARRANT OFFICER UPON RETIREMENT AS A SECOND LIEUTENANT PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3. AS FOLLOWS: REFERENCE IS MADE TO THE ACT OF 3 APRIL 1939 (53 STAT. 555). ARE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY PROVIDED BY LAW OR REGULATIONS FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR ARMY. THAT A WARRANT OFFICER WHO IS TEMPORARILY APPOINTED AS A COMMISSIONED OFFICER UNDER THE AUTHORITY OF THE ACT OF 22 SEPTEMBER 1941 (55 STAT. 728). SHALL NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.

B-55467, JUNE 12, 1946, 25 COMP. GEN. 847

PAY - RETIRED - WARRANT OFFICERS TEMPORARILY COMMISSIONED IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, AS AMENDED, SAVING TO WARRANT OFFICERS APPOINTED AS TEMPORARY COMMISSIONED OFFICERS IN THE ARMY OF THE UNITED STATES UNDER AUTHORITY THEREOF THE PAY AND ALLOWANCES TO WHICH ENTITLED "AT THE TIME OF SUCH TEMPORARY APPOINTMENT," AN OFFICER WHOSE PAY AS A CHIEF WARRANT OFFICER WAS SAVED TO HIM WHEN TEMPORARILY APPOINTED AS SECOND LIEUTENANT IS NOT SAVED THE RETIRED PAY OF A CHIEF WARRANT OFFICER UPON RETIREMENT AS A SECOND LIEUTENANT PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, FOR DISABILITY INCURRED IN LINE OF DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JUNE 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 21, 1946, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF 3 APRIL 1939 (53 STAT. 555), AS AMENDED, AND THE ACT OF 26 SEPTEMBER 1941 (55 STAT. 733), UNDER WHICH OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, IF CALLED INTO THE ACTIVE MILITARY SERVICE FOR SERVICE IN EXCESS OF 30 DAYS, AND WHO SUFFER DISABILITY IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED, ARE ENTITLED TO RECEIVE THE SAME RETIREMENT PAY PROVIDED BY LAW OR REGULATIONS FOR OFFICERS OF CORRESPONDING GRADES AND LENGTH OF SERVICE IN THE REGULAR ARMY.

THE ACT OF 7 JULY 1943 (57 STAT. 380) CONTAINS A SAVING CLAUSE WHICH PROVIDES, IN EFFECT, THAT A WARRANT OFFICER WHO IS TEMPORARILY APPOINTED AS A COMMISSIONED OFFICER UNDER THE AUTHORITY OF THE ACT OF 22 SEPTEMBER 1941 (55 STAT. 728), SHALL NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.

IN CONNECTION WITH THE FOREGOING, THE FOLLOWING QUESTION IS SUBMITTED FOR YOUR DECISION:

WHETHER A SECOND LIEUTENANT WITH OVER THREE YEARS' SERVICE, WHO IS RECEIVING THE PAY OF A CHIEF WARRANT OFFICER, OVER THREE YEARS' SERVICE BY REASON OF THE ABOVE-MENTIONED SAVING CLAUSE, IS ENTITLED, UNDER THE PROVISIONS OF LAW CITED ABOVE, TO RETIREMENT PAY BASED ON THE RATE HE WAS RECEIVING AT DATE OF RETIREMENT, OR ON THE RATE PRESCRIBED FOR A SECOND LIEUTENANT WITH OVER THREE YEARS' SERVICE.

SINCE THE ACT OF SEPTEMBER 26, 1941, 55 STAT. 733, REFERRED TO IN YOUR LETTER PERTAINS ONLY TO RESERVE OFFICERS OF THE ARMY OF THE UNITED STATES WHO WERE DISABLED WHILE IN THE ACTIVE MILITARY SERVICE PRIOR TO SEPTEMBER 26, 1941, IT WOULD APPEAR TO HAVE NO PARTICULAR APPLICATION TO THE MATTER INVOLVED.

THE LAST PROVISO OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, IS CODIFIED AT 10 U.S.C. SUPP. IV, 456, 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.

THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, PROVIDES:

THAT DURING THE PRESENT EMERGENCY, TEMPORARY APPOINTMENTS AS OFFICERS IN THE ARMY OF THE UNITED STATES MAY BE MADE, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, FROM AMONG QUALIFIED PERSONS WITHOUT APPOINTING SUCH PERSONS AS OFFICERS IN ANY PARTICULAR COMPONENT OF THE ARMY OF THE UNITED STATES. ALL PERSONS SO APPOINTED AS OFFICERS SHALL BE COMMISSIONED IN THE ARMY OF THE UNITED STATES AND MAY BE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO SERVE THEREIN FOR SUCH PERIODS OF TIME AS THE PRESIDENT MAY PRESCRIBE. SUCH APPOINTMENTS IN GRADES BELOW THAT OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT ALONE, AND GENERAL OFFICERS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: PROVIDED, THAT ANY APPOINTMENT MADE UNDER THE PROVISIONS OF THIS ACT MAY BE VACATED AT ANY TIME BY THE PRESIDENT AND, IF NOT SOONER VACATED, SHALL CONTINUE DURING THE PRESENT EMERGENCY AND SIX MONTHS THEREAFTER: PROVIDED FURTHER, THAT ANY PERSON APPOINTED AS AN OFFICER IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THIS ACT SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF SERVICE: AND PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO PROHIBIT THE APPOINTMENT OF OFFICERS IN THE VARIOUS COMPONENTS OF THE ARMY OF THE UNITED STATES IN ACCORDANCE WITH EXISTING LAWS.

THE ACT OF JULY 7, 1943, 57 STAT. 380, AMENDED THE ABOVE ACT BY ADDING A PROVISO, AS FOLLOWS:

* * * THAT NO WARRANT OFFICER TEMPORARILY APPOINTED AS A COMMISSIONED OFFICER UNDER THE AUTHORITY OF THIS ACT SHALL SUFFER ANY REDUCTION IN PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME OF SUCH TEMPORARY APPOINTMENT.

ALTHOUGH, BY REASON OF SUCH PROVISION IN THE ACT OF JULY 7, 1943, THE OFFICER WAS ENTITLED AFTER HIS APPOINTMENT AS SECOND LIEUTENANT TO CONTINUE TO RECEIVE THE ACTIVE DUTY PAY AND ALLOWANCES OF A CHIEF WARRANT OFFICER TO WHICH HE HAD BEEN ENTITLED, HIS ACTUAL RANK UNDER THAT APPOINTMENT WAS THE RANK OF SECOND LIEUTENANT, THE OFFICE HELD BY HIM. COMPARE 29 OP. ATTY. GEN. 598, 602.

SECTION 1251, REVISED STATUTES, 10 U.S.C. 933, PROVIDES:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF SERVICE, AND SUCH DECISION IS APPROVED BY THE PRESIDENT, SAID OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE LIST OF RETIRED OFFICERS.

SECTION 1254, REVISED STATUTES, 10 U.S.C. 1025, PROVIDES:

OFFICERS RETIRED FROM ACTIVE SERVICE SHALL BE RETIRED UPON THE ACTUAL RANK HELD BY THEM AT THE DATE OF RETIREMENT.

SECTION 1274, REVISED STATUTES, 10 U.S.C. 971, PROVIDES:

OFFICERS RETIRED FROM ACTIVE SERVICE SHALL RECEIVE 75 PERCENTUM OF THE PAY OF THE RANK UPON WHICH THEY ARE RETIRED.

UNDER SUCH SECTIONS OF THE REVISED STATUTES, IN EFFECT MADE APPLICABLE HERE BY OPERATION OF THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, AND SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, THE OFFICER IS ENTITLED TO RETIRED PAY AS A SECOND LIEUTENANT, HIS ACTUAL RANK, UNLESS THERE BE SOME SPECIAL PROVISION OF LAW GIVING HIM THE RIGHT TO RETIRED PAY AS A CHIEF WARRANT OFFICER, HIS FORMER RANK.

THE AMENDMENT OF JULY 7, 1943, TO THE ACT OF SEPTEMBER 22, 1941, CITED IN YOUR LETTER AND QUOTED, SUPRA, PERTAINS TO THE PAY AND ALLOWANCES TO WHICH THE OFFICER WAS ENTITLED AT THE TIME OF APPOINTMENT FROM A WARRANT OFFICER STATUS, AND DOES NOT SAVE ANY BENEFITS OF THE WARRANT OFFICER GRADE WHICH MIGHT HAVE ACCRUED SUBSEQUENT TO SUCH APPOINTMENT BUT FOR THE PROMOTION TO A COMMISSIONED GRADE. 24 COMP. GEN. 739. IT FOLLOWS THAT ANY RETIREMENT BENEFITS WHICH MIGHT HAVE ACCRUED BUT FOR THE PROMOTION ARE NOT SAVED BY SUCH PROVISION AND I AM NOT AWARE OF ANY OTHER PROVISION OF LAW WHICH MIGHT BE CONSTRUED TO GIVE THE OFFICER, RETIRED AS A SECOND LIEUTENANT, THE RETIRED PAY OF A CHIEF WARRANT OFFICER.

ACCORDINGLY, YOU ARE ADVISED THAT THE OFFICER IS ENTITLED TO RETIRED PAY BASED ON THE PAY OF A SECOND LIEUTENANT WITH THREE YEARS' SERVICE.