B-7356, DECEMBER 21, 1939, 19 COMP. GEN. 597

B-7356: Dec 21, 1939

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THE RANK OF MAJOR GENERAL WAS THE . THE OFFICER IS ENTITLED TO RETIRED PAY BASED ON THAT RANK NOTWITHSTANDING HE HELD IT UNDER THE TERMS OF THE ACT OF FEBRUARY 28. HAVE THE RANK. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER IN FAVOR OF MAJOR GENERAL THOMAS Q. WHICH IS BEFORE THE UNDERSIGNED. HAVE THE RANK OF A MAJOR GENERAL. THE PROVISIONS OF THE ACT OF CONGRESS APPROVED 23 APRIL 1930 IS ANNOUNCED. MAJOR GENERAL ASHBURN WILL ATTAIN THE AGE OF SIXTY-FOUR YEARS ON 17 NOVEMBER 1938.'. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THIS OFFICER IS ENTITLED TO THE RETIRED PAY OF A MAJOR GENERAL AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE ATTACHED VOUCHER IS AUTHORIZED. ASHBURN WAS BORN NOVEMBER 17.

B-7356, DECEMBER 21, 1939, 19 COMP. GEN. 597

PAY - RETIRED - RANK AT DATE OF RETIREMENT HELD FOR DURATION OF PARTICULAR ASSIGNMENT UNDER SPECIFIC STATUTORY AUTHORITY WHERE AN ARMY OFFICER HELD THE RANK AND RECEIVED THE PAY AND ALLOWANCES OF A MAJOR GENERAL UP TO AND INCLUDING THE DATE OF HIS RETIREMENT FROM ACTIVE SERVICE UNDER THE PROVISIONS OF THE ACTS OF JUNE 30, 1882, 22 STAT. 118, AND APRIL 23, 1930, 46 STAT. 253, THE RANK OF MAJOR GENERAL WAS THE ,ACTUAL RANK" HELD AT DATE OF RETIREMENT WITHIN THE MEANING OF SECTION 1254, REVISED STATUTES, AND, HENCE, THE OFFICER IS ENTITLED TO RETIRED PAY BASED ON THAT RANK NOTWITHSTANDING HE HELD IT UNDER THE TERMS OF THE ACT OF FEBRUARY 28, 1927, 44 STAT. 1261, PROVIDING THAT ANY OFFICER DETAILED AS CHAIRMAN OF THE ADVISORY BOARD OF THE INLAND WATERWAYS CORPORATION ON THE DATE OF THE ACT SHALL, DURING HIS TERM OF OFFICE AS CHAIRMAN, HAVE THE RANK, PAY, AND ALLOWANCES OF A MAJOR GENERAL, U.S. ARMY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LIEUTENANT COLONEL W. M. DIXON, UNITED STATES ARMY, DECEMBER 21, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 20, 1939, AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER IN FAVOR OF MAJOR GENERAL THOMAS Q. ASHBURN, U.S. ARMY, RETIRED, IN THE AMOUNT OF $266.67, COVERING RETIRED PAY AS A MAJOR GENERAL FOR THE PERIOD NOVEMBER 15 TO 30, 1939, INCLUSIVE, WHICH IS BEFORE THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

SECTION 4 OF THE ACT OF JUNE 3, 1924 (43 STAT. 361, AS AMENDED BY THE ACT OF FEBRUARY 28, 1927), 44TH STAT. 1261, PROVIDES FOR THE OFFICER DETAILED AS CHAIRMAN OF THE ADVISORY BOARD OF THE INLAND WATERWAYS CORPORATION, THAT "ANY OFFICER SO DETAILED AT THE DATE OF THE PASSAGE OF THIS AMENDATORY ACT, SHALL DURING HIS TERM OF OFFICE AS CHAIRMAN, HAVE THE RANK OF A MAJOR GENERAL, UNITED STATES ARMY.'

PARAGRAPH 2, SPECIAL ORDERS, NO. 266, WAR DEPARTMENT, NOVEMBER 14, 1938, PROVIDES AS FOLLOWS:

"BY DIRECTION OF THE PRESIDENT, THE RETIREMENT OF MAJOR GENERAL THOMAS Q. ASHBURN, CHAIRMAN, ADVISORY BOARD, INLAND WATERWAYS CORPORATION, FROM ACTIVE SERVICE ON 30 NOVEMBER 1938, UNDER THE REQUIREMENTS OF THE ACT OF CONGRESS APPROVED 30 JUNE 1882, AND THE PROVISIONS OF THE ACT OF CONGRESS APPROVED 23 APRIL 1930 IS ANNOUNCED. MAJOR GENERAL ASHBURN WILL ATTAIN THE AGE OF SIXTY-FOUR YEARS ON 17 NOVEMBER 1938.'

DURING THE PERIOD DECEMBER 1, 1938, TO INCLUDE NOVEMBER 14, 1939, GENERAL ASHBURN HAS BEEN EMPLOYED IN A CIVIL CAPACITY AS CHAIRMAN OF THE BOARD OF THE INLAND WATERWAYS CORPORATION AND HAS ELECTED TO RECEIVE THE CIVILIAN PAY OF THAT POSITION.

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THIS OFFICER IS ENTITLED TO THE RETIRED PAY OF A MAJOR GENERAL AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER PAYMENT OF THE ATTACHED VOUCHER IS AUTHORIZED.

THE OFFICIAL ARMY REGISTER, 1939, AT PAGE 856, SHOWS THAT THOMAS Q. ASHBURN WAS BORN NOVEMBER 17, 1874; COMMISSIONED A SECOND LIEUTENANT OF INFANTRY, JUNE 11, 1897; SECOND LIEUTENANT OF ARTILLERY, MARCH 8, 1898; FIRST LIEUTENANT, MARCH 1, 1900; CAPTAIN, AUGUST 22, 1901; MAJOR, COAST ARTILLERY CORPS, OCTOBER 5, 1911; LIEUTENANT COLONEL, MAY 15, 1917; COLONEL, JULY 1, 1920; AND THAT HE WAS DETAILED AS CHAIRMAN OF THE ADVISORY BOARD, INLAND WATERWAYS CORPORATION, WITH RANK, PAY, AND ALLOWANCES OF BRIGADIER GENERAL FROM JUNE 5, 1924, AND WITH RANK, PAY, AND ALLOWANCES OF MAJOR GENERAL FROM FEBRUARY 28, 1927, WITH NOTATION OF RETIREMENT BY OPERATION OF LAW WITH RANK OF MAJOR GENERAL, NOVEMBER 30, 1938, UNDER THE ACTS OF JUNE 30, 1882, AND APRIL 23, 1930.

THE ACT OF JUNE 3, 1924, 43 STAT. 360, 363, CREATING THE INLAND WATERWAYS CORPORATION, PROVIDED BY SECTION 4 (C) AS FOLLOWS:

IN ADDITION TO THE SIX MEMBERS, THE SECRETARY OF WAR SHALL APPOINT AN INDIVIDUAL FROM CIVIL LIFE, OR (NOTWITHSTANDING SECTION 1222 OF THE REVISED STATUTES OR ANY OTHER PROVISION OF LAW, OR ANY RULES OR REGULATIONS ISSUED THEREUNDER) DETAIL AN OFFICER FROM THE MILITARY ESTABLISHMENT OF THE UNITED STATES, AS CHAIRMAN OF THE BOARD. ANY OFFICER SO DETAILED SHALL, DURING HIS TERM OF OFFICE AS CHAIRMAN, HAVE THE RANK, PAY, AND ALLOWANCES OF A BRIGADIER GENERAL, UNITED STATES ARMY, AND SHALL BE EXEMPT FROM THE OPERATION OF ANY PROVISION OF LAW, OR ANY RULES OR REGULATIONS ISSUED THEREUNDER, WHICH LIMITS THE LENGTH OF SUCH DETAIL OR COMPELS HIM TO PERFORM DUTY WITH TROOPS. ANY INDIVIDUAL APPOINTED FROM CIVIL LIFE SHALL, DURING HIS TERM OF OFFICE AS CHAIRMAN, RECEIVE A SALARY NOT TO EXCEED $10,000 A YEAR TO BE FIXED BY THE SECRETARY OF WAR. THE SECRETARY OF WAR MAY DELEGATE TO THE CHAIRMAN ANY OF THE FUNCTIONS VESTED IN THE SECRETARY BY THIS ACT.

SECTION 4 (C) WAS AMENDED BY THE ACT OF FEBRUARY 28, 1927, 44 STAT. 1261, SO AS TO PROVIDE THAT ANY OFFICER SO DETAILED AT THE DATE OF PASSAGE OF THE AMENDATORY ACT SHALL, DURING HIS TERM OF OFFICE AS CHAIRMAN, HAVE THE RANK, PAY, AND ALLOWANCES OF A MAJOR GENERAL, UNITED STATES ARMY, WITH THE SAME EXEMPTIONS AS TO LENGTH OF SUCH DETAIL AND FROM THE PERFORMANCE OF DUTIES WITH TROOPS AS WERE CONTAINED IN THE ORIGINAL ENACTMENT OF JUNE 3, 1924.

THE RECORDS SHOW THAT THE OFFICER WHILE CHAIRMAN OF THE ADVISORY BOARD OF THE INLAND WATERWAYS CORPORATION HELD THE RANK OF BRIGADIER GENERAL OF THE ARMY TO FEBRUARY 27, 1927, AND THE RANK OF MAJOR GENERAL OF THE ARMY TO AND INCLUDING NOVEMBER 30, 1938, WHEN HE WAS RETIRED FROM ACTIVE SERVICE UNDER THE PROVISIONS OF THE ACTS OF JUNE 30, 1882, 22 STAT. 118, AND APRIL 23, 1930, 46 STAT. 253. THE PAY RECORDS SHOW THAT AT THE TIME OF RETIREMENT HE WAS RECEIVING MAXIMUM ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR GENERAL OF THE ARMY, $9,700 PER ANNUM, AS AUTHORIZED BY SECTION 8 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629.

SECTIONS 1254 AND 1274, REVISED STATUTES, PROVIDE, RESPECTIVELY:

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

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

THE ACT OF JUNE 30, 1882, 22 STAT. 118, PROVIDES:

* * * ON AND AFTER THE PASSAGE OF THIS ACT * * * WHEN AN OFFICER IS SIXTY -FOUR YEARS OF AGE, HE SHALL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST. * * *

WHILE THE RANK OF MAJOR GENERAL HELD BY THE OFFICER ON THE ACTIVE LIST, AND PAY AND ALLOWANCES OF THAT RANK, WERE PROBABLY LIMITED TO THE DURATION OF HIS OFFICE UNDER THE APPOINTMENT AS CHAIRMAN OF THE ADVISORY BOARD OF THE INLAND WATERWAYS CORPORATION, SUCH RANK NEVERTHELESS WAS THE "ACTUAL RANK" HELD BY HIM AT THE DATE OF HIS RETIREMENT FROM ACTIVE SERVICE. SUCH BEING THE CASE, UNDER THE PROVISIONS OF SECTIONS 1254 AND 1274 OF THE REVISED STATUTES HE WAS ENTITLED TO BE RETIRED FROM ACTIVE SERVICE IN THE RANK OF MAJOR GENERAL AND TO RECEIVE 75 PERCENTUM OF THE PAY OF THAT RANK, VIZ, 75 PERCENTUM OF $8,000 PER ANNUM. REMEY V. UNITED STATES, 33 CT.1CLS. 218. SEE, ALSO, 27 COMP. DEC. 227. THE VOUCHER SUBMITTED BY YOU APPEARS TO HAVE BEEN COMPUTED UPON THAT BASIS, AND IF IT BE A FACT THAT MAJOR GENERAL ASHBURN WAS EMPLOYED IN A CIVIL CAPACITY AS CHAIRMAN OF THE BOARD FROM DECEMBER 1, 1938, TO INCLUDE NOVEMBER 14, 1939, AND DURING SUCH PERIOD HE RECEIVED THE CIVILIAN PAY OF THAT POSITION AS PROVIDED IN THE QUOTED SECTION 4 (C) OF THE ACT CREATING THE INLAND WATERWAYS CORPORATION, HIS RETIRED PAY AS A MAJOR GENERAL OF THE ARMY PROPERLY WOULD BEGIN NOVEMBER 15, 1939. ACCORDINGLY, YOU ARE INFORMED THAT PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.