A-14612, JULY 2, 1926, 6 COMP. GEN. 4

A-14612, JULY 2, 1926, 6 COMP. GEN. 4

RETIRED PAY - COAST GUARD OFFICERS THE PROVISION IN SECTION 3 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1271, AUTHORIZING RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE NAVY AND MARINE CORPS TO COUNT FOR LONGEVITY PAY PURPOSES ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT DURING THE PERIOD APRIL 6, 1917, TO MARCH 3, 1921, IS EXPRESSLY APPLICABLE TO RETIRED OFFICERS OF THOSE SERVICES AND HAS NO APPLICATION TO RETIRED OFFICERS OF THE COAST GUARD WHO PERFORMED ACTIVE DUTY SERVICE DURING SAID PERIOD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 2, 1926:

I HAVE YOUR LETTER OF MAY 27, 1926, REQUESTING DECISION AS FOLLOWS:

UNDER THE AUTHORITY CONTAINED IN THE ACT OF MAY 8, 1926 (PUBLIC NO. 274, 69TH CONGRESS), IT IS NECESSARY FOR COAST GUARD HEADQUARTERS TO COMPUTE THE PAY OF ALL OFFICERS AND WARRANT OFFICERS OF THE COAST GUARD RETIRED ON OR BEFORE JUNE 30, 1922, SAID ACT PROVIDING THAT THE PAY OF SUCH OFFICERS, FROM AND INCLUDING MAY 8, 1926, SHALL NOT BE LESS, THAN THAT PROVIDED FOR OFFICERS AND WARRANT OFFICERS OF EQUAL RANK AND LENGTH OF SERVICE RETIRED SUBSEQUENT TO JUNE 30, 1922.

SECTION 5 OF THE ACT OF JULY 1, 1918 (40 STAT. 717), PROVIDES AS FOLLOWS: "THAT HEREAFTER, DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, ANY COMMISSIONED OR WARRANT OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES, ON THE RETIRED LIST MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO ACTIVE DUTY AT SEA OR ON SHORE; AND ANY RETIRED OFFICER PERFORMING SUCH ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY, DECLARED AS AFORESAID, SHALL BE ENTITLED TO PROMOTION ON THE RETIRED LIST TO THE GRADE OR RANK, NOT ABOVE THAT OF LIEUTENANT COMMANDER IN THE NAVY OR MAJOR IN THE MARINE CORPS, OR CAPTAIN IN THE COAST GUARD, AND SHALL THEREAFTER RECEIVE THE PAY AND ALLOWANCES THEREOF, WHICH HIS TOTAL ACTIVE SERVICE AS AN OFFICER BOTH PRIOR AND SUBSEQUENT TO RETIREMENT, IN THE MANNER RENDERED BY HIM, WOULD HAVE ENABLED HIM TO ATTAIN IN DUE COURSE OF PROMOTION HAD SUCH SERVICE BEEN RENDERED CONTINUOUSLY ON THE ACTIVE LIST DURING THE PERIOD OF TIME LAST PAST.' SECTION 8 OF THE ACT OF MAY 18, 1920 (41 STAT. 603), PROVIDES AS FOLLOWS: "THAT COMMISSIONED OFFICERS, WARRANT OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED MEN OF THE COAST GUARD SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND INCREASES AS NOW ARE, HEREIN ARE, OR HEREAFTER MAY BE PRESCRIBED FOR CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE NAVY * * *.' SECTION 1 OF THE ACT OF JUNE 10, 1922 (42 STAT. 627), PROVIDES AS FOLLOWS: "FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY * * *.' SECTION 3 OF THE ACT OF MARCH 4, 1925 (43 STAT. 1271), PROVIDES AS FOLLOWS: "THAT ALL RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS WHO SERVED ON ACTIVE DUTY IN THE NAVY AND MARINE CORPS OF THE UNITED STATES DURING THE WORLD WAR SHALL BE CREDITED WITH ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT DURING THE PERIOD FROM APRIL 6, 1917, TO MARCH 3, 1921, IN THE COMPUTATION OF THEIR LONGEVITY PAY.'

IN VIEW OF THE FACT THAT THE COAST GUARD, IN ACCORDANCE WITH THE ORGANIC ACT OF JANUARY 28, 1915 (38 STAT. 800), OPERATED AS A PART OF THE NAVY DURING THE WORLD WAR, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY, AND BY VIRTUE OF THE ASSIMILATION OF THE COAST GUARD WITH THE NAVY FOR PURPOSES OF PAY AND SERVICE AS SET FORTH IN THE ABOVE QUOTATIONS OF LAW, IT WOULD APPEAR THAT, EVEN THOUGH COAST GUARD RETIRED COMMISSIONED AND WARRANT OFFICERS ARE NOT SPECIFICALLY MENTIONED IN THE ABOVE REFERRED TO ACT OF MARCH 4, 1925 (43 STAT. 1271), SUCH OFFICERS ARE ENTITLED TO INCLUDE IN THE COMPUTATION OF THEIR LONGEVITY PAY UNDER THE ABOVE MENTIONED ACT OF MAY 8, 1926, ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT DURING THE PERIOD FROM APRIL 6, 1917, TO MARCH 3, 1921, WHETHER PROMOTED OR NOT DURING THAT PERIOD UNDER THE AUTHORITY CONTAINED IN SECTION 5 OF THE ACT OF JULY 1, 1918 (40 STAT. 717), ABOVE QUOTED. THE QUESTION AS TO THE LEGALITY OF SAME IS THEREFORE HEREWITH PRESENTED TO YOU FOR YOUR DECISION.

SECTION 9 OF THE ACT OF APRIL 12, 1902, 32 STAT. 101, RELATIVE TO THE RETIRED PAY OF OFFICERS OF THE REVENUE CUTTER SERVICE, PROVIDES:

THAT ALL OFFICERS BORNE UPON THE RETIRED OR PERMANENT WAITING-ORDERS LIST AT THE DATE OF THE PASSAGE OF THIS ACT, OR HEREAFTER, SHALL RECEIVE SEVENTY-FIVE PERCENTUM OF THE DUTY PAY, SALARY, AND INCREASE OF THE RANK UPON WHICH THEY HAVE BEEN OR MAY BE RETIRED: PROVIDED, THAT NO LONGEVITY INCREASE OF PAY SHALL BE ALLOWED FOR ANY LENGTH OF SERVICE ACCRUING AFTER RETIREMENT.

THE ACT OF JANUARY 28, 1915, 38 STAT. 800, CREATING THE COAST GUARD BY COMBINING THEREIN THE LIFE SAVING SERVICE AND THE REVENUE CUTTER SERVICE, CONTINUED THIS PROVISION MAKING IT APPLICABLE TO OFFICERS OF THE COAST GUARD. IN THE NAVY THERE WAS A SIMILAR PROVISION PROHIBITING INCREASE OF LONGEVITY PAY AFTER RETIREMENT. SEE ACT OF AUGUST 5, 1882, 22 STAT. 286.

PRIOR TO THE JOINT-SERVICE PAY ACT OF JUNE 10, 1922, THE ACT OF JULY 1, 1918, WAS THE ONLY PROVISION OF LAW FOR LONGEVITY INCREASE OF PAY FOR LENGTH OF SERVICE IN EITHER THE NAVY OR COAST GUARD FOR ACTIVE SERVICE AFTER RETIREMENT, AND SUCH RIGHT WAS LIMITED TO THOSE OFFICERS PERMANENTLY PROMOTED. THE ACT OF JUNE 10, 1922, ALLOWS OFFICERS IN THE SERVICE ON JUNE 30, 1922, TO COUNT, FOR LONGEVITY PURPOSES, ALL SERVICE THEN AUTHORIZED TO BE SO COUNTED UNDER PRIOR LAWS, BUT PROVIDES THAT ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION.

THE ACT OF MARCH 4, 1925, MAKES A FURTHER EXCEPTION TO THE GENERAL RULE THAT AN OFFICER IS NOT ENTITLED TO LONGEVITY INCREASE FOR ACTIVE SERVICE AFTER RETIREMENT AND CONFERS ON ALL RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS WHO HAD ACTIVE SERVICE DURING THE PERIOD APRIL 6, 1917, TO MARCH 3, 1921, RIGHT TO CREDIT FOR SUCH ACTIVE SERVICE IN COMPUTING THEIR LONGEVITY PAY ON THE RETIRED LIST. 4 COMP. GEN. 924. THE PROVISION IN SECTION 5 OF THE ACT OF JULY 1, 1918, RELATIVE TO PROMOTION ON THE RETIRED LIST BY REASON OF ACTIVE DUTY AFTER RETIREMENT APPLIED TO THE COAST GUARD OFFICERS BY REASON OF EXPRESS PROVISION THEREIN AND NOT BY REASON OF ANY ASSIMILATION OF THE PAY AND ALLOWANCES OF COAST GUARD OFFICERS TO THE PAY AND ALLOWANCES OF NAVY OFFICERS.

UNDER THE ACT OF JUNE 10, 1922, THE PAY AND ALLOWANCES THEREIN EXPRESSLY PROVIDED FOR OFFICERS IN THE COAST GUARD ARE NOT DETERMINED BY ASSIMILATION TO THE PAY AND ALLOWANCES OF OFFICERS OF THE NAVY BUT ACCRUE UNDER THE EXPRESS GRANT THEREIN. TO THAT EXTENT THE ACT REPEALED SUCH ASSIMILATION AS EXISTED PRIOR THERETO AND GAVE TO OFFICERS OF THE COAST GUARD THE SPECIFIC PAY AND ALLOWANCES FIXED. DECISION A-13060, MAY 18, 1926, 5 COMP. GEN. 917.

THE PROVISION IN SECTION 3 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1271, EXPRESSLY APPLICABLE TO RETIRED OFFICERS OF THE NAVY AND MARINE CORPS WHO PERFORMED ACTIVE SERVICE FROM APRIL 6, 1917, TO MARCH 3, 1921, HAS NO APPLICATION TO RETIRED OFFICERS OF THE COAST GUARD WHO PERFORMED ACTIVE DUTY DURING SAID PERIOD.