B-79466, APRIL 26, 1949, 28 COMP. GEN. 620

B-79466: Apr 26, 1949

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WHO REENTERED THE ACTIVE MILITARY SERVICE IS ENTITLED. TO HAVE HIS RETIREMENT PAY COMPUTED ON THE BASIS OF THE HIGHEST TEMPORARY GRADE IN WHICH HE PERFORMED SATISFACTORY ACTIVE SERVICE FOR SIX MONTHS OR MORE. 1949: REFERENCE IS MADE TO A LETTER DATED AUGUST 13. IS ENTITLED AS A FORMER OFFICER OF WORLD WAR I ON THE EMERGENCY OFFICERS' RETIRED LIST. IT IS STATED THAT THE FORMER OFFICER SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS ON ACTIVE DUTY BETWEEN SEPTEMBER 9. AT WHICH TIME HE WAS IN RECEIPT OF EMERGENCY OFFICERS' RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF MAY 24. THAT HE WAS SEPARATED FROM HIS LAST PERIOD OF SERVICE ON NOVEMBER 22. IT IS NOT DISCLOSED WHETHER THE "HIGHER GRADE" IN WHICH HE SERVED SATISFACTORILY FOR SIX MONTHS OR MORE DURING THE PERIOD SPECIFIED WAS THE GRADE OF LIEUTENANT COLONEL OR THE GRADE OF MAJOR BUT IN EITHER EVENT THE PRINCIPLE INVOLVED WOULD BE THE SAME.

B-79466, APRIL 26, 1949, 28 COMP. GEN. 620

PAY - RETIRED - EMERGENCY OFFICERS - ADVANCEMENT ON RETIRED LIST UNDER SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, AUTHORIZING THE ADVANCEMENT ON THE APPLICABLE RETIRED LIST OF OFFICERS HERETOFORE GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW TO THE HIGHEST TEMPORARY GRADE IN WHICH SERVED SATISFACTORILY ON ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS WITH RETIRED PAY COMPUTED ON THE BASIS OF SUCH HIGHER RANK, A FORMER ARMY OFFICER IN RECEIPT OF EMERGENCY OFFICERS' RETIREMENT PAY PURSUANT TO THE ACT OF MAY 24, 1928, WHO REENTERED THE ACTIVE MILITARY SERVICE IS ENTITLED, UPON RESTORATION TO THE EMERGENCY OFFICERS' RETIRED LIST, TO HAVE HIS RETIREMENT PAY COMPUTED ON THE BASIS OF THE HIGHEST TEMPORARY GRADE IN WHICH HE PERFORMED SATISFACTORY ACTIVE SERVICE FOR SIX MONTHS OR MORE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 26, 1949:

REFERENCE IS MADE TO A LETTER DATED AUGUST 13, 1948, FROM THE EXECUTIVE ASSISTANT ADMINISTRATOR, REQUESTING A DECISION WITH RESPECT TO THE RETIRED PAY TO WHICH LEVENS DAY WILLIAMS, C-295,693, IS ENTITLED AS A FORMER OFFICER OF WORLD WAR I ON THE EMERGENCY OFFICERS' RETIRED LIST.

IT IS STATED THAT THE FORMER OFFICER SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS ON ACTIVE DUTY BETWEEN SEPTEMBER 9, 1940, AND JUNE 30, 1946, IN A HIGHER GRADE, HAVING REENTERED ACTIVE MILITARY SERVICE ON AUGUST 13, 1942, AT WHICH TIME HE WAS IN RECEIPT OF EMERGENCY OFFICERS' RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED, FOR SERVICE DURING WORLD WAR I AS A CAPTAIN, AND THAT HE WAS SEPARATED FROM HIS LAST PERIOD OF SERVICE ON NOVEMBER 22, 1946, WITH THE RANK OF LIEUTENANT COLONEL. IT IS NOT DISCLOSED WHETHER THE "HIGHER GRADE" IN WHICH HE SERVED SATISFACTORILY FOR SIX MONTHS OR MORE DURING THE PERIOD SPECIFIED WAS THE GRADE OF LIEUTENANT COLONEL OR THE GRADE OF MAJOR BUT IN EITHER EVENT THE PRINCIPLE INVOLVED WOULD BE THE SAME. HIS NAME APPEARS IN THE OFFICIAL ARMY AND AIR FORCE REGISTER, JANUARY 1, 1948, ON THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY OF THE UNITED STATES. THE QUESTION IS PRESENTED AS TO WHETHER HE "MAY BE RESTORED TO HIS EMERGENCY OFFICER'S RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR THE HIGHER GRADE" IN VIEW OF THE PROVISIONS OF SECTION 203 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ( PUBLIC LAW 810, APPROVED JUNE 29, 1948), 62 STAT. 1085, WHICH SECTION PROVIDES AS FOLLOWS:

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT RETIRED PAY OF SUCH HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST.

SECTION 1 OF THE EMERGENCY OFFICERS' RETIREMENT ACT OF MAY 24, 1928, 45 STAT. 735, AS AMENDED, 38 U.S.C. 581, PROVIDES IN PERTINENT PART:

ALL PERSONS WHO HAVE SERVED AS OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR, OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO DURING SUCH SERVICE HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY, AND WHO WERE ON OR BEFORE MAY 24, 1929, RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE VETERANS' ADMINISTRATION FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE, SHALL, FROM DATE OF RECEIPT OF APPLICATION BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, BE PLACED UPON, AND THEREAFTER CONTINUED ON, SEPARATE RETIRED LISTS, CREATED AS PART OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, TO BE KNOWN AS THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, RESPECTIVELY, WITH THE RANK HELD BY THEM WHEN DISCHARGED FROM THEIR COMMISSIONED SERVICE, AND SHALL BE ENTITLED TO THE SAME PRIVILEGES AS WERE ON MAY 24, 1928, OR MAY THEREAFTER BE PROVIDED FOR BY LAW OR REGULATIONS FOR OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS WHO HAVE BEEN RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, AND SHALL BE ENTITLED TO ALL HOSPITALIZATION PRIVILEGES AND MEDICAL TREATMENT AS WERE ON MAY 24, 1928, OR MAY THEREAFTER BE AUTHORIZED BY THE VETERANS' ADMINISTRATION, AND SHALL RECEIVE FROM DATE OF RECEIPT OF THEIR APPLICATION RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE, EXCEPT PAY UNDER THE ACT OF MAY 18, 1920: PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW SHALL BE PAID SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE VETERANS' ADMINISTRATION, AND SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN CHAPTER 10 OF THIS TITLE, EXCEPT AS OTHERWISE AUTHORIZED HEREIN * * *.

IT IS WELL ESTABLISHED THAT FORMER OFFICERS OF WORLD WAR I WHOSE NAMES HAVE BEEN PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 24, 1928, HAVE A STATUS ESSENTIALLY DIFFERENT FROM THAT OF RETIRED OFFICERS OF THE ARMY OR NAVY AND STATUTORY PROVISIONS RELATING TO RETIRED OFFICERS OF THE ARMY AND NAVY GENERALLY HAVE NOT BEEN CONSIDERED AS APPLICABLE TO OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST UNLESS THE STATUTE INVOLVED HAS SPECIFICALLY SO PROVIDED. 9 COMP. GEN. 8; ID. 221; 19 ID. 676; 23 ID. 102. AS ORIGINALLY ENACTED, THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, CONTAINED NO PROVISION RESPECTING MEMBERS OF THE EMERGENCY OFFICERS' RETIRED LIST OR THE COMPUTATION OF THEIR RETIRED PAY AND IN VIEW OF THE SPECIFIC PROVISIONS OF THE 1928 ACT, SUPRA, REGARDING SUCH COMPUTATION, AND THE ESSENTIAL DIFFERENCE IN STATUS BETWEEN PERSONS ON SUCH RETIRED LIST AND RETIRED MILITARY PERSONNEL GENERALLY, THE SAID PAY READJUSTMENT ACT WAS AMENDED BY THE ACT OF JUNE 29, 1946, 60 STAT. 343, EFFECTIVE JULY 1, 1946, TO AUTHORIZE INCREASED RATES OF PAY, INCLUDING RETIRED PAY, AND SUCH RATES EXPRESSLY WERE MADE APPLICABLE TO PERSONS ON THE EMERGENCY OFFICERS' RETIRED LIST BY SECTION 6 OF THE ACT, 60 STAT. 345, READING AS FOLLOWS:

HEREAFTER THE RETIRED OR RETIREMENT PAY OF ANY PERSON WHOSE NAME IS BORNE ON THE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES AND WHO IS ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY SHALL, IN LIEU OF BEING COMPUTED UPON THE BASIS OF THE PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS DISCHARGE FROM HIS COMMISSIONED SERVICE, BE COMPUTED UPON THE BASIS OF THE RATE PROVIDED IN THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THIS ACT, FOR AN OFFICER OF CORRESPONDING GRADE WHO IS CREDITED WITH THE SAME NUMBER OF YEARS OF SERVICE FOR LONGEVITY PURPOSES AS THE NUMBER WITH WHICH SUCH PERSON IS CREDITED.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF H.R. 2744, WHICH BECAME THE ACT OF JUNE 29, 1948 ( PUBLIC LAW 810), SUPRA, SHOWS THAT AT THE TIME THE SAID BILL WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON MARCH 10, 1948, SECTION 203 (A) THEREOF PROVIDED FOR ADVANCING ON THE RETIRED LIST ONLY COMMISSIONED OFFICERS OF THE " REGULAR ARMY OR THE REGULAR AIR FORCE HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW" WHO HAD THE REQUIRED SATISFACTORY SERVICE IN A HIGHER TEMPORARY GRADE DURING THE PERIOD SPECIFIED. THE BILL WAS REFERRED TO THE SENATE COMMITTEE ON ARMED SERVICES AND, AFTER HEARINGS ON THE MATTER, WAS FAVORABLY REPORTED WITH PROPOSED AMENDMENTS WHICH WERE ADOPTED, AND IT WAS ENACTED INTO LAW AS REPORTED BY THE SAID COMMITTEE. IN EXPLANATION OF THE AMENDMENTS, IT WAS STATED IN THE COMMITTEE REPORT THAT THE AMENDMENTS TO TITLE II OF THE BILL WERE TO "MAKE IT CLEAR THAT THE BENEFITS OF THIS SECTION APPLY EQUALLY TO MEMBERS OF THE RESERVE COMPONENTS OF THE MILITARY SERVICES.'

WHILE THE SAID SECTION 203 (A) WAS NOT SPECIFICALLY MADE APPLICABLE TO MEMBERS OF THE EMERGENCY OFFICERS' RETIRED LIST, IT BROADLY PROVIDES THAT" EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OF OR ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES * * * HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY," DURING THE PERIOD SPECIFIED, AND SHALL RECEIVE RETIRED PAY COMPUTED ON THE BASIS THEREIN STATED. SINCE FORMER OFFICERS OF THE ARMY ON THE EMERGENCY OFFICERS' RETIRED LIST HAVE BEEN GRANTED RETIRED OR RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, SUPRA, IT APPEARS THAT SUCH FORMER OFFICERS WHO SUBSEQUENTLY HAVE HAD THE REQUIRED SATISFACTORY ACTIVE COMMISSIONED SERVICE IN A HIGHER GRADE FALL SQUARELY WITHIN THE COMPREHENSIVE PROVISIONS OF THE SAID SECTION 203 (A) AND ARE ENTITLED TO HAVE THEIR RETIREMENT PAY COMPUTED UNDER SUCH PROVISIONS. THAT IS, THE TERMS OF SUCH STATUTE READ IN CONJUNCTION WITH THE 1928 ACT SEEM CLEARLY TO REQUIRE THE CONCLUSION THAT SUCH FORMER OFFICERS ARE ENTITLED TO RETIRMENT PAY AT THE RATE OF 75 PERCENTUM OF THE BASE AND LONGEVITY PAY WHICH THEY WOULD RECEIVE, EXCLUDING ANY CREDIT FOR SERVICE ON THE RETIRED LIST, IF SERVING ON ACTIVE DUTY IN THE HIGHEST TEMPORARY GRADE IN WHICH SATISFACTORY ACTIVE SERVICE WAS PERFORMED FOR NOT LESS THAN 6 MONTHS DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946.

ACCORDINGLY, IN ANSWER TO YOUR SPECIFIC QUESTION, YOU ARE ADVISED THAT FROM AND AFTER THE EFFECTIVE DATE OF SECTION 203 (A), SUPRA, THE FORMER OFFICER REFERRED TO IN YOUR LETTER IS ENTITLED TO HAVE HIS EMERGENCY OFFICER'S RETIRED PAY SO COMPUTED "ON THE BASIS OF THE BASE AND LONGEVITY PAY HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY" IN THE HIGHEST TEMPORARY GRADE ( ARMY OF THE UNITED STATES) IN WHCIH HE PERFORMED SATISFACTORY ACTIVE SERVICE FOR 6 MONTHS OR MORE, AS SPECIFICALLY DETERMINED BY THE SECRETARY OF THE ARMY, DURING THE PERIOD SPECIFIED IN THE STATUTE.