B-59093, OCTOBER 9, 1946, 26 COMP. GEN. 239

B-59093: Oct 9, 1946

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IS ENTITLED TO SUCH RETIREMENT ON THE FIRST OF THE FOLLOWING MONTH. WILL NOT COMPLETE THE "MORE THAN" 23 YEARS' SERVICE NECESSARY TO ENTITLE HIM TO THE RETIREMENT BENEFITS PROVIDED BY SECTION 3 OF THE ACT OF JUNE 13. UNTIL THE FOLLOWING DAY WILL NOT BE ELIGIBLE TO RECEIVE SUCH RETIREMENT BENEFITS UNTIL THE MONTH FOLLOWING THAT IN WHICH HE SO COMPLETES MORE THAN 23 YEARS' SERVICE. THE SPECIFIC CASE NOW UNDER CONSIDERATION IS THAT OF COLONEL WILLARD A. WAS APPOINTED A SECOND LIEUTENANT ON 1 NOVEMBER 1918. HE HAS HAD CONTINUOUS SERVICE SINCE THAT DATE AS A COMMISSIONED OFFICER AND ACCORDINGLY WILL COMPLETE 28 YEARS SERVICE ON 31 OCTOBER 1946. YOUR DECISION IS REQUESTED AS TO WHETHER COLONEL HOLBROOK MAY BE PLACED ON THE RETIRED LIST EFFECTIVE 1 NOVEMBER 1946.

B-59093, OCTOBER 9, 1946, 26 COMP. GEN. 239

RETIREMENT - ARMY OFFICERS - EFFECTIVE DATE UNDER THE ACT OF APRIL 23, 1930, FIXING THE EFFECTIVE DATE OF RETIREMENTS AS THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH OTHERWISE EFFECTIVE, AN ARMY OFFICER WHO, ON THE LAST DAY OF A MONTH, COMPLETES THE 28 YEARS' SERVICE REQUIRED FOR ELIGIBILITY FOR THE RETIREMENT BENEFITS OF SECTION 3 OF THE ACT OF JUNE 13, 1940, IS ENTITLED TO SUCH RETIREMENT ON THE FIRST OF THE FOLLOWING MONTH. UNDER THE ACT OF APRIL 23, 1930, FIXING THE EFFECTIVE DATE OF RETIREMENTS AS THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH OTHERWISE EFFECTIVE, AN OFFICER WHO COMPLETES 23 YEARS' SERVICE ON THE LAST DAY OF A MONTH AND, THEREFORE, WILL NOT COMPLETE THE "MORE THAN" 23 YEARS' SERVICE NECESSARY TO ENTITLE HIM TO THE RETIREMENT BENEFITS PROVIDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, UNTIL THE FOLLOWING DAY WILL NOT BE ELIGIBLE TO RECEIVE SUCH RETIREMENT BENEFITS UNTIL THE MONTH FOLLOWING THAT IN WHICH HE SO COMPLETES MORE THAN 23 YEARS' SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, OCTOBER 9, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 3, 1946, AS FOLLOWS:

THE QUESTION HAS ARISEN AS TO THE DATE ON WHICH OFFICERS BECOME ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF THE ACT APPROVED 31 JULY 1935 (49 STAT 505) AS AMENDED BY THE ACT OF 13 JUNE 1940 (54 STAT. 381), WHEN SUCH OFFICERS COMPLETE THE REQUIRED YEARS OF SERVICE ON THE LAST DAY OF A CALENDAR MONTH. SECTION 5 OF SAID ACT PROVIDES, IN PART:

"* * * ANY PROMOTION-LIST OFFICER RETIRED FOR ANY REASON EXCEPT BY OPERATION OF SECTION 24B, NATIONAL DEFENSE ACT, OR WHOLLY RETIRED, WHO HAS COMPLETED TWENTY-EIGHT OR MORE YEARS OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR MARY AND WHO HAS FAILED TO REACH THE GRADE OF COLONEL BY REASON OF THE LIMITATION ON THE NUMBER OF PROMOTION-LIST OFFICERS IN THE GRADE OF COLONEL OR BY REASON OF THE RESTRICTION OF YEARS OF SERVICE IN GRADE OF MAJOR OR LIEUTENANT COLONEL SHALL BE RETIRED IN THE GRADE OF COLONEL WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR A COLONEL WITH THE SAME LENGTH OF SERVICE INCLUDING ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE-DUTY PAY PURPOSES, * * *"

THE ACT OF 23 APRIL 1930 (46 STAT 253) PROVIDES THAT, EFFECTIVE 1 JULY 1930, ALL RETIREMENTS SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SUCH RETIREMENT WOULD OTHERWISE BE EFFECTIVE.

THE SPECIFIC CASE NOW UNDER CONSIDERATION IS THAT OF COLONEL WILLARD A. HOLBROOK, JR., 10-12177 (TEMPORARY COLONEL, A.U.S.; LIEUTENANT COLONEL, CAVALRY, REGULAR ARMY), WHO AFTER GRADUATION FROM THE UNITED STATES MILITARY ACADEMY, WAS APPOINTED A SECOND LIEUTENANT ON 1 NOVEMBER 1918. HE HAS HAD CONTINUOUS SERVICE SINCE THAT DATE AS A COMMISSIONED OFFICER AND ACCORDINGLY WILL COMPLETE 28 YEARS SERVICE ON 31 OCTOBER 1946.

YOUR DECISION IS REQUESTED AS TO WHETHER COLONEL HOLBROOK MAY BE PLACED ON THE RETIRED LIST EFFECTIVE 1 NOVEMBER 1946, OR WHETHER, SINCE HE WILL COMPLETE THE 28 YEARS OF SERVICE REQUIRED BY THE ABOVE CITED ACT AT MIDNIGHT 31 OCTOBER 1946, HE SHOULD BE RETIRED ON 1 DECEMBER 1946.

PROVISION IS ALSO MADE IN THE ACT REFERRED TO IN THE FIRST PARAGRAPH ABOVE FOR THE RETIREMENT OF OFFICERS WHO HAVE COMPLETED "MORE THAN 23 BUT LESS THAN 28 YEARS OF CONTINUOUS COMMISSIONED SERVICE.' IT WILL BE NOTED THAT THIS REQUIREMENT DIFFERS FROM THAT IN THE FIRST INSTANCE, WHICH IS STATED AS "28 YEARS OR MORE.' ACCORDINGLY IN A SITUATION WHERE AN OFFICER COMPLETES 23 YEARS OF SERVICE ON THE LAST DAY OF A CALENDAR MONTH, HE WILL NOT BE ELIGIBLE FOR RETIREMENT ON THE FIRST DAY OF THE FOLLOWING MONTH, NOT HAVING OVER 23 YEARS SERVICE. THIS VIEW IS BELIEVED TO BE SUPPORTED BY DECISION OF THE COMPTROLLER GENERAL A-34570, DATED 9 JANUARY 1931.

THE FOURTH PROVISO IN SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, AMENDING SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, 10 U.S.C. 971 (B), PROVIDES, IN ADDITION TO THE PART QUOTED IN YOUR LETTER, AS FOLLOWS:

* * * AND ANY SUCH OFFICER WHO HAS COMPLETED MORE THAN TWENTY-THREE BUT LESS THAN TWENTY-EIGHT YEARS OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY AND WHO HAS FAILED TO REACH THE GRADE OF LIEUTENANT COLONEL BY REASON OF THE RESTRICTION OF YEARS OF SERVICE IN GRADE OF MAJOR SHALL BE RETIRED IN THE GRADE OF LIEUTENANT COLONEL WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR A LIEUTENANT COLONEL WITH THE SAME LENGTH OF SERVICE INCLUDING ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE-DUTY PAY PURPOSES * * *.

AN OFFICER OTHERWISE WITHIN THE PURVIEW OF THE FIRST PART OF THE FOURTH PROVISO IN SECTION 3 OF THE ACT OF JUNE 13, 1940, QUOTED IN YOUR LETTER, MUST COMPLETE "TWENTY-EIGHT OR MORE YEARS" OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY BEFORE HE IS ELIGIBLE TO RECEIVE THE RETIREMENT BENEFITS PROVIDED THEREIN, THAT IS, TO BE RETIRED IN THE GRADE OF COLONEL WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR A COLONEL WITH THE SAME LENGTH OF SERVICE. AN OFFICER OTHERWISE WITHIN THE PURVIEW OF THE LATTER PART OF THE SAID FOURTH PROVISO MUST COMPLETE "MORE THAN TWENTY-THREE BUT LESS THAN TWENTY-EIGHT YEARS" OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY BEFORE HE IS ELIGIBLE TO RECEIVE THE BENEFITS PROVIDED THEREIN, THAT IS, RETIREMENT IN THE GRADE OF LIEUTENANT COLONEL WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR A LIEUTENANT COLONEL WITH THE SAME LENGTH OF SERVICE.

IN THE SPECIFIC CASE PRESENTED, IT IS STATED THAT COLONEL HOLBROOK WAS APPOINTED A SECOND LIEUTENANT IN THE REGULAR ARMY ON NOVEMBER 1, 1918, AND HAS SERVED CONTINUOUSLY AS A COMMISSIONED OFFICER SINCE THAT TIME. HENCE, AS STATED IN YOUR LETTER, THE OFFICER WILL HAVE COMPLETED 28 YEARS' SERVICE ON OCTOBER 31, 1946. HOWEVER, WITH RESPECT TO THE LATTER PART OF THE SAID FOURTH PROVISO, APPLICABLE TO CERTAIN OFFICERS WHO HAVE COMPLETED "MORE THAN TWENTY-THREE * * * YEARS" OF CONTINUOUS COMMISSIONED SERVICE IN THE REGULAR ARMY, AN OFFICER WHO COMPLETES 23 YEARS' SERVICE ON THE LAST DAY OF A CALENDAR MONTH IS NOT ELIGIBLE TO RECEIVE THE BENEFITS PROVIDED THEREIN SINCE THE STATUTE REQUIRES MORE THAN 23 YEARS' SERVICE. HENCE, AS STATED IN YOUR LETTER, AN OFFICER WHO COMPLETES 23 YEARS' SERVICE ON THE LAST DAY OF A CALENDAR MONTH IS NOT ELIGIBLE UNDER THE LATTER PART OF THE SAID FOURTH PROVISO TO RECEIVE THE BENEFITS PROVIDED THEREIN UNTIL THE FIRST DAY OF THE FOLLOWING MONTH.

THE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47 (A), REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS, IN SO FAR AS IN CONFLICT HEREWITH, ARE REPEALED.

THE SAID ACT--- APPLICABLE TO CIVIL, MILITARY, NAVAL, ETC., PERSONNEL--- PROVIDES THAT RETIREMENT "SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE.' IN A DECISION DATED JUNE 11, 1930, 9 COMP. GEN. 512, ADDRESSED TO THE SECRETARY OF THE NAVY, IT WAS STATED:

* * * IF AN OFFICER ATTAINS RETIREMENT AGE, OR OTHERWISE MEETS THE CONDITIONS NECESSARY FOR RETIREMENT, ON THE LAST DAY OF A MONTH HIS ACTIVE PAY CEASES WITH SAID DAY AND HIS RETIRED PAY BEGINS THE NEXT DAY, BUT IF AN OFFICER ATTAINS RETIREMENT AGE, ETC., ON THE FIRST DAY OF A MONTH HIS ACTIVE PAY CONTINUES TO THE END OF THAT MONTH--- IF OTHER CONDITIONS NECESSARY TO A PAY STATUS ARE MET--- AND HIS RETIRED PAY BEGINS WITH THE FIRST DAY OF THE NEXT MONTH.

ALSO, SEE 10 COMP. GEN. 28; A-32965, AUGUST 25, 1930; AND A-35365, FEBRUARY 21, 1931.

APPLYING THE RULE ENUNCIATED IN THE DECISION QUOTED ABOVE TO THE SPECIFIC CASE PRESENTED, IT APPEARING THAT COLONEL HOLBROOK WILL MEET THE CONDITIONS NECESSARY TO RETIREMENT ON OCTOBER 31, 1946, HE WILL BE ELIGIBLE FOR RETIREMENT UNDER THE FIRST PART OF THE FOURTH PROVISO TO SECTION 3 OF THE ACT OF JUNE 13, 1940, SUPRA, ON NOVEMBER 1, 1946. BUT AN OFFICER WHO COMPLETES 23 YEARS' SERVICE ON THE LAST DAY OF A CALENDAR MONTH WILL NOT HAVE COMPLETED "MORE THAN TWENTY-THREE * * * YEARS" OF CONTINUOUS COMMISSIONED SERVICE, AS REQUIRED BY THE LATTER PART OF THE SAID FOURTH PROVISO, UNTIL THE FOLLOWING DAY, AND, HENCE, HE WILL NOT BE ELIGIBLE TO RECEIVE THE RETIREMENT BENEFITS PROVIDED THEREIN UNTIL THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE COMPLETES MORE THAN 23 YEARS' SERVICE.