B-59515, SEP 11, 1946

B-59515: Sep 11, 1946

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THERE WAS RECEIVED YOUR LETTER OF MAY 16. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. IT IS STATED THAT MR. GERLACH WAS RETIRED JANUARY 31. THE VOUCHER IS PRESENTED ON THE BASIS THAT UNDER SECTION 5 OF THE ACT OF JULY 31. HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $157.50 PER MONTH. SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE MAY UPON HIS OWN APPLICATION BE RETIRED. TO READ AS FOLLOWS: "THAT WHENEVER ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE. EXCEPT THAT OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE AND OFFICERS WHO ARE UNDER INVESTIGATION OR WHO ARE AWAITING TRIAL BY COURTS MARTIAL OR THE RESULT OF SUCH TRIAL.

B-59515, SEP 11, 1946

PRECIS-UNAVAILABLE

COLONEL CARL WITCHER, F.D., U.S. ARMY:

BY INDORSEMENT OF THE CHIEF OF FINANCE, DATED JULY 24, 1946, THERE WAS RECEIVED YOUR LETTER OF MAY 16, 1946, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF WARRANT OFFICER ALBERT G. GERLACH, U.S. ARMY, RETIRED, IN THE AMOUNT OF $105, REPRESENTING ADDITIONAL RETIRED PAY AT THE RATE OF $26.25 PER MONTH FOR THE PERIOD FEBRUARY 1, 1946, TO MAY 31, 1946.

IT IS STATED THAT MR. GERLACH WAS RETIRED JANUARY 31, 1946, UNDER THE PROVISIONS OF SECTION 4A OF THE ACT OF JUNE 4, 1920, AND SECTION 5 OF THE ACT OF AUGUST 21, 1941; AND THAT AT THE TIME OF RETIREMENT HE HAD 25 YEARS, 3 MONTHS, 22 DAYS' SERVICE, INCLUDING SERVICE AS AN ENLISTED MAN DURING WORLD WAR I. IT APPEARS THAT FOR THE PERIOD INVOLVED, HE HAS BEEN PAID RETIRED PAY AT THE RATE OF $131.25 PER MONTH, 62 1/2 PER CENTUM OF ACTIVE PAY AT THE TIME OF RETIREMENT. THE VOUCHER IS PRESENTED ON THE BASIS THAT UNDER SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED, HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $157.50 PER MONTH, 75 PER CENTUM OF ACTIVE PAY AT THE TIME OF RETIREMENT.

SECTION 4A OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, PROVIDED IN PERTINENT PART:

"*** WARRANT OFFICERS OTHER THAN THOSE OF THE ARMY MINE PLANTER SERVICE, SHALL RECEIVE BASE PAY OF $1,320 A YEAR AND THE ALLOWANCES OF A SECOND LIEUTENANT, SHALL BE ENTITLED TO LONGEVITY PAY AND TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS; AND SHALL TAKE RANK NEXT BELOW SECOND LIEUTENANTS AND AMONG THEMSELVES ACCORDING TO THE DATES OF THEIR RESPECTIVE WARRANTS."

SECTION 5 OF THE ACT OF AUGUST 21, 1941, 55 STAT. 653, PROVIDES:

"WARRANT OFFICERS SHALL BE ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS: PROVIDED, THAT HEREAFTER WARRANT OFFICERS MAY, IN THE DISCRETION OF THE SECRETARY OF WAR, BE RETIRED AFTER FIFTEEN YEARS OF ACTIVE SERVICE: PROVIDED FURTHER, THAT A WARRANT OFFICER RETIRED AFTER FIFTEEN YEARS OF ACTIVE SERVICE SHALL RECEIVE RETIRED PAY AT THE RATE OF 2 1/2 PER CENTUM OF HIS ACTIVE PAY MULTIPLIED BY THE NUMBER OF COMPLETE YEARS OF ACTIVE SERVICE IN THE ARMY, BUT NOT TO EXCEED A TOTAL OF 75 PER CENTUM OF HIS ACTIVE PAY."

SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, ORIGINALLY PROVIDED, IN PERTINENT PART:

"THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO, ON THE EFFECTIVE DATE OF THIS ACT OR AT ANY TIME THEREAFTER, SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE MAY UPON HIS OWN APPLICATION BE RETIRED, IN THE DISCRETION OF THE PRESIDENT WITH ANNUAL PAY EQUAL TO THE PRODUCT OF 2 1/2 PER CENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT, MULTIPLIED BY A NUMBER EQUAL TO THE YEARS OF HIS ACTIVE SERVICE NOT IN EXCESS OF TWENTY- NINE YEARS: PROVIDED, THAT THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE RIGHT TO RETIREMENT AND RETIREMENT PAY UNDER THIS SECTION SHALL INCLUDE ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE DUTY PAY PURPOSES ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR: AND PROVIDED FURTHER, THAT ANY OFFICER OF THE REGULAR ARMY OF PHILIPPINE SCOUTS BELOW THE GRADE OF MAJOR WHO SERVED AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHOSE APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF THIS SECTION HAS BEEN APPROVED BY THE PRESIDENT SHALL BE RETIRED IN THE GRADE OF MAJOR WITH RETIRED PAY COMPUTED AS HEREINBEFORE PROVIDED AS FOR A MAJOR WITH THE SAME LENGTH OF SERVICE ***."

SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 360, AMENDED THE ABOVE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, TO READ AS FOLLOWS:

"THAT WHENEVER ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE, HE MAY UPON HIS OWN APPLICATION BE RETIRED, IN THE DISCRETION OF THE SECRETARY OF WAR WITH ANNUAL PAY EQUAL TO 2 1/2 PER CENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT, MULTIPLIED BY A NUMBER EQUAL TO THE YEARS OF HIS ACTIVE SERVICE NOT IN EXCESS OF TWENTY-NINE YEARS: PROVIDED, THAT THE NUMBERS OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE RIGHT TO RETIREMENT AND RETIREMENT PAY HEREINBEFORE PROVIDED IN THIS SECTION SHALL INCLUDE ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE-DUTY PAY PURPOSES, ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR: PROVIDED FURTHER, THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PER CENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE AS HEREINAFTER PROVIDED, EXCEPT THAT OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE AND OFFICERS WHO ARE UNDER INVESTIGATION OR WHO ARE AWAITING TRIAL BY COURTS MARTIAL OR THE RESULT OF SUCH TRIAL, OR WHOSE CASES ARE PENDING BEFORE COURTS OF INQUIRY SHALL BE RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT IN EACH CASE HAS BEEN APPROVED BY THE SECRETARY OF WAR ***."

UNDER THE SAID PROVISIONS OF THE ACTS OF JUNE 4, 1920, AND AUGUST 21, 1941, WARRANT OFFICERS ARE ENTITLED TO RETIREMENT UNDER THE "SAME CONDITIONS" AS COMMISSIONED OFFICERS. THAT GENERAL PROVISION HAS BEEN CONSTRUED AS MAKING APPLICABLE TO WARRANT OFFICERS ONLY THOSE PROVISIONS OF LAW RELATING TO RETIREMENT WHICH ARE APPLICABLE TO ALL COMMISSIONED OFFICERS.

IN THE CASE OF WALTON V. UNITED STATES, 89 C.CLS. 28, DECIDED MAY 1, 1939, IT WAS HELD THAT THE SECOND PROVISO OF SECTION 5 OF THE ACT OF JULY 31, 1935, SUPRA, DID NOT INCLUDE WARRANT OFFICERS, THE COURT SAYING, AT PAGE 29:

"THE ACT OF JULY 31, 1935, 49 STAT. 505, 507, TITLE 10, SEC. 97LB, U.S.CODE, SUPP. II, UNDER WHICH PLAINTIFF ASSERTS THIS CLAIM, REFERS TO 'ANY OFFICER OF THE REGULAR ARMY WHO SERVED AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES PRIOR TO NOVEMBER 13, 1912,' AND STATES THAT THEY SHALL BE RETIRED IN THE GRADE OF MAJOR 'WITH RETIRED PAY COMPUTED AS HEREINBEFORE PROVIDED AS FOR A MAJOR WITH THE SAME LENGTH OF SERVICE.'

"A REFERENCE TO THE ABOVE ACT DISCLOSES THAT THE TITLE IS 'AN ACT TO PROMOTE THE EFFICIENCY OF NATIONAL DEFENSE'; THAT IT REFERS ONLY TO COMMISSIONED OFFICERS OF THE ARMY, AND IN OTHER SECTIONS OF THE SAME ACT THERE ARE SPECIFIC PROVISIONS RELATING TO COLONELS, CAPTAINS, FIRST AND SECOND LIEUTENANTS AND CHAPLAINS, ALL OF WHOM ARE COMMISSIONED OFFICERS OF THE ARMY. IT IS THEREFORE APPARENT THAT THE PROVISION QUOTED ABOVE, WHICH IS SECTION 5 OF THE ACT, APPLIES ONLY TO COMMISSIONED OFFICERS."

AFTER THAT DECISION WAS RENDERED, THERE WAS ENACTED THE ACT OF JUNE 13, 1940, SUPRA, ENTITLED "AN ACT TO PROVIDE FOR THE PROMOTION OF PROMOTION- LIST OFFICERS OF THE ARMY AFTER SPECIFIED YEARS OF SERVICE IN GRADE, AND FOR OTHER PURPOSES," WHICH REFERS TO THE SAME OFFICERS AS THE 1935 ACT, BUT GRANTS CERTAIN BENEFITS NOT INCLUDED IN THE 1935 ACT. THERE IS NO INDICATION IN THE 1940 ACT OR IN ITS LEGISLATIVE HISTORY OF ANY INTENT TO INCLUDE WARRANT OFFICERS-- THERETOFORE EXCLUDED-- WITHIN THE SCOPE OF THE LEGISLATION. MOREOVER, SUBSEQUENT TO THE ACT OF JUNE 13, 1940, SPECIFIC PROVISION WAS MADE IN SECTION 5 OF THE ACT OF AUGUST 21, 1941, SUPRA, FOR THE RETIREMENT OF WARRANT OFFICERS WITH 15 OR MORE YEARS OF ACTIVE SERVICE -- A BENEFIT ALREADY AUTHORIZED FOR COMMISSIONED OFFICERS IN THE 1935 AND 1940 ACTS-- THUS CLEARLY INDICATING THAT WARRANT OFFICERS WERE NOT DEEMED TO BE INCLUDED IN SUCH PRIOR LAWS. THE LEGISLATIVE HISTORY OF THE 1941 ACT CLEARLY SHOWS THAT FIRST PORTION THEREOF-- "WARRANT OFFICERS SHALL BE ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS" -- WAS A REENACTMENT OF THE PREVIOUS PROVISION TO THE SAME EFFECT CONTAINED IN THE ACT OF JUNE 4, 1920, SUPRA, WHICH WAS IN EFFECT WHEN THE DECISION IN THE WALTON CASE WAS RENDERED. SEE HOUSE REPORT NO. 739, DATED JUNE 4, 1941, ON H.R. 4851, 77TH CONGRESS (PAGE 12) AND PAGES 17 AND 18 OF THE HEARINGS BEFORE THE COMMITTEE ON MILITARY AFFAIRS, UNITED STATES SENATE, 77TH CONGRESS, ON S.162. HENCE, IN VIEW OF THE HOLDING IN THAT DECISION, THERE IS NO BASIS FOR CONCLUDING THAT THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, APPLICABLE TO COMMISSIONED OFFICERS, ARE APPLICABLE TO WARRANT OFFICERS. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.