B-82075, JULY 13, 1950, 30 COMP. GEN. 15

B-82075, JULY 13, 1950, 30 COMP. GEN. 15

PAY - RETIRED - ARMY OFFICER ADVANCED ON RETIRED LIST - SERVICE PRIOR TO NOVEMBER 12, 1918 AN ARMY OFFICER WHO WAS RETIRED UNDER THE ACT OF JULY 31, 1935, AS AMENDED, ON THE BASIS OF HAVING SERVED IN THE MILITARY FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO, IN ACCORDANCE WITH SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, WAS LATER ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE HAD SERVED SATISFACTORILY IS ENTITLED UNDER THAT SECTION TO HAVE HIS RETIRED PAY COMPUTED FROM THE EFFECTIVE DATE OF THE 1948 ACT AT THE RATE OF 75 PERCENTUM OF THE PAY WHICH HE WOULD HAVE RECEIVED IF SERVING ON ACTIVE DUTY IN THE HIGHER GRADE TO WHICH HE WAS ADVANCED ON THE RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. C. B. LENOW, DEPARTMENT OF THE ARMY, JULY 13, 1950:

BY ENDORSEMENT OF DECEMBER 1, 1948, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF NOVEMBER 12, 1948, REQUESTING DECISION AS WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF COLONEL JOHN H. PRICE (RETIRED) IN THE AMOUNT OF $202.01 COVERING ADJUSTMENT IN RETIRED PAY AT THE RATE OF $39.87 PER MONTH FOR THE PERIOD JUNE 29 THROUGH NOVEMBER 30, 1948. SUCH ADJUSTMENT IN RETIRED PAY IS COMPUTED ON THE BASIS THAT THE OFFICER (WHO HAS COMPLETED OVER 27 BUT LESS THAN 30 YEARS' SERVICE) IS ENTITLED TO 75 PERCENTUM--- RATHER THAN 67 1/2 PERCENTUM--- OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY GRADE OF COLONEL BY REASON OF HAVING SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.

IT APPEARS THAT COLONEL PRICE WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 30, 1948, IN THE GRADE OF MAJOR, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT, 380, AND SECTION 514 (G) OF THE ACT OF AUGUST 7, 1947, 61 STAT. 906, IN PERTINENT PART 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 PERCENTUM 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 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 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF 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 * * *.

THE SAID SECTION 5 WAS FURTHER AMENDED BY SECTION 202 OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1084.

ALTHOUGH THE OFFICER HAD COMPLETED ONLY 27 YEARS' SERVICE AT THE TIME OF HIS RETIREMENT AS MAJOR, SINCE HE HAD SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HE WAS ENTITLED, UNDER SECTION 5 OF THE 1935 ACT, AS AMENDED, SUPRA, TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A MAJOR WITH HIS LENGTH OF SERVICE. SHORTLY AFTER HIS RETIREMENT, HOWEVER, THE OFFICER WAS ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE (COLONEL) IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 203 (A) OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1085, AS FOLLOWS:

SEC. 203. (A) 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.

IT IS STATED THAT COLONEL PRICE HAS BEEN PAID RETIRED PAY EFFECTIVE JUNE 29, 1948, AT THE RATE OF 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY GRADE OF COLONEL WITH OVER 27 BUT LESS THAN 30 YEARS' SERVICE, MULTIPLIED BY THE NUMBER OF YEARS OF HIS ACTIVE SERVICE (27), OR 67 1/2 PERCENTUM ($358.88 PER MONTH), INSTEAD OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS PERMANENT GRADE OF MAJOR WITH OVER 27 BUT LESS THAN 30 YEARS' SERVICE ($348.91 PER MONTH). HE NOW IS CLAIMING THAT HE IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF HIS TEMPORARY GRADE OF COLONEL WITH OVER 27 BUT LESS THAN 30 YEARS' SERVICE ($398.75 PER MONTH). HOWEVER, YOU ARE IN DOUBT AS TO WHETHER HE IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF HIS TEMPORARY GRADE OF COLONEL IN VIEW OF DECISION OF THIS OFFICE DATED JULY 15, 1948, B-73090, 28 COMP. GEN. 22, WHICH, FOLLOWING CERTAIN PRIOR DECISIONS, HELD THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, AS AMENDED (PROVIDING THAT THE RETIRED PAY OF ANY OFFICER OF THE ARMED FORCES "HEREAFTER" RETIRED, WHO SERVED IN ANY CAPACITY IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL BE 75 PERCENTUM OF HIS ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT), ARE APPLICABLE ONLY TO THE PAY OF AN OFFICER'S PERMANENT GRADE OR RANK AND NOT THAT OF HIS TEMPORARY GRADE OR RANK.

THE SAID FOURTH PARAGRAPH IS AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

IT WILL BE NOTED THAT SUCH PROVISION IN THE SAID 1942 ACT DIFFERS MATERIALLY FROM THE PROVISION IN THE AMENDED 1935 ACT, SUPRA, IN THAT IT IS NOT A RETIREMENT PROVISION BUT RELATES TO PERSONS RETIRED UNDER OTHER STATUTES, WHICH MAY AUTHORIZE VARIOUS RATES OF RETIRED PAY, WHEREAS THE AMENDED 1935 ACT EXPRESSLY PROVIDES FOR THE RETIREMENT OF ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND, FURTHER, EXPRESSLY FIXES THE RETIRED PAY OF SUCH OFFICERS AT 75 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT. THUS "75 PERCENTUM" IS THE ONLY "RATE PRESCRIBED BY LAW" FOR OFFICERS UNDER SUCH PROVISION AND, HENCE, NECESSARILY IS THE RATE REQUIRED TO BE APPLIED IN COMPUTING THE RETIRED PAY OF SUCH RETIRED OFFICERS UNDER THE PROVISION IN SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, SUPRA, THAT ANY ARMY OFFICER ADVANCED THEREUNDER ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, SHALL RECEIVE RETIRED PAY "AT THE RATE PRESCRIBED BY LAW" BUT COMPUTED ON THE BASIS OF THE PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY "IN SUCH HIGHER GRADE.'

THE DIFFERENT RULE WHICH HAS BEEN APPLIED BY THIS OFFICE UNDER THE SIMILAR PROVISION IN PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, HAS RESTED ON THE PROPOSITION THAT THE RETIREMENT STATUTES INVOLVED SPECIFICALLY PRESCRIBED LOWER RATES WHICH MIGHT BE VIEWED AS THE RATES PRESCRIBED BY LAW TO BE APPLIED IN COMPUTING RETIRED PAY AUTHORIZED ON HIGHER TEMPORARY GRADES, PARTICULARLY IN VIEW OF THE DOUBT THAT THE PROVISION IN THE SAID PARAGRAPH 4 OF SECTION 15 WAS INTENDED TO APPLY TO OTHER THAN AN OFFICER'S PERMANENT GRADE AT TIME OF RETIREMENT AND THE DOUBT THAT THE CONGRESS INTENDED TO SUPERIMPOSE THE SPECIAL BENEFIT OF THE 75 PERCENT RATE PRESCRIBED IN THAT PARAGRAPH ON THE SPECIAL BENEFIT OF COMPUTING THE RETIRED PAY ON THE HIGHEST TEMPORARY GRADE INSTEAD OF THE PERMANENT GRADE. SEE 25 COMP. GEN. 274; 26 ID. 932; 27 ID. 779; CF. 26 ID. 417; ID. 636; BUT SEE 25 COMP. GEN. 758 AND 26 ID. 5, INDICATING A DIFFERENT VIEW FIRST FOLLOWING THE ENACTMENT OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, 28, AUTHORIZING THE ADVANCEMENT OF NAVAL PERSONNEL ON THE RETIRED LIST TO THEIR HIGHEST TEMPORARY WARTIME GRADES WITH RETIRED PAY BASED THEREON. HOWEVER THAT MAY BE, IT APPEARS AMPLY CLEAR THAT SINCE THE ONLY RATE PRESCRIBED BY LAW FOR OFFICERS RETIRED UNDER THE SAID PROVISION IN THE AMENDED 1935 ACT HERE INVOLVED, ON THE BASIS OF HAVING SERVED IN THE MILITARY FORCES PRIOR TO NOVEMBER 12, 1918, IS 75 PERCENTUM, COLONEL PRICE IS ENTITLED UNDER SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, SUPRA, TO HAVE HIS RETIRED PAY COMPUTED FROM THE DATE OF THAT ACT AT THE RATE OF 75 PERCENTUM OF THE PAY WHICH HE WOULD HAVE RECEIVED IF SERVING ON ACTIVE DUTY IN THE HIGHEST GRADE OF COLONEL TO WHICH HE WAS ADVANCED ON THE RETIRED LIST PURSUANT TO THAT ACT. TO THE EXTENT THAT THE CITED DECISION OF JULY 15, 1948, 28 COMP. GEN. 22, MAY HAVE INDICATED A DIFFERENT VIEW RESPECTING THE APPLICATION OF THE SAID PROVISION IN THE 1935 ACT, AS AMENDED, IT NO LONGER WILL BE FOLLOWED.

YOU ARE ADVISED ACCORDINGLY THAT PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.