JULY 15, 1921, 1 COMP. GEN. 20

JULY 15, 1921, 1 COMP. GEN. 20

PAY OF RETIRED ENLISTED MEN OF THE ARMY COMMISSIONED DURING THE WORLD WAR RETIRED ENLISTED MEN OF THE ARMY GRANTED THE RETIRED PAY AND ALLOWANCES OF WARRANT OFFICERS OF THE RETIRED LIST BECAUSE OF ACTIVE SERVICE AS COMMISSIONED OFFICERS OF THE UNITED STATES ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, UNDER PROVISIONS OF THE ACT OF JUNE 4, 1920, 41 STAT. 786, ARE NOT ENTITLED ALSO TO THE ALLOWANCE OF $15.75 PER MONTH AUTHORIZED FOR RETIRED ENLISTED MEN OF THE ARMY IN LIEU OF RATIONS, CLOTHING, QUARTERS, AND OTHER ALLOWANCES BY PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT., 1217.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 15, 1921:

EMIL WALTER APPLIED MAY 23, 1921, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING BY SETTLEMENT NO. 245470, DATED APRIL 23, 1921, HIS CLAIM FOR $15.75 PER MONTH FOR THE PERIOD JUNE 4, 1920, TO APRIL 23, 1921, WHICH IS ALLOWED RETIRED ENLISTED MEN OF THE ARMY IN ADDITION TO THEIR PAY BY THE ACT OF MARCH 2, 1907, 34 STAT., 1217, IN LIEU OF RATIONS, CLOTHING, QUARTERS, OR OTHER ALLOWANCES.

THE RECORD DISCLOSES THAT THE CLAIMANT ENTERED THE MILITARY SERVICE ON JUNE 23, 1883, AS A PRIVATE OF TROOP M, 7TH CAVALRY, AND BY SUCCESSIVE REENLISTMENTS SERVED CONTINUOUSLY IN VARIOUS ARMS OF THE SERVICE UNTIL DECEMBER 1, 1909, WHEN HE WAS PLACED ON THE RETIRED LIST AS A SERGEANT, FIRST CLASS, HOSPITAL CORPS. HE WAS COMMISSIONED CAPTAIN IN THE QUARTERMASTER OFFICERS' RESERVE CORPS AND CALLED TO ACTIVE DUTY UNDER THE RESERVE COMMISSION ON JULY 13, 1917, AND CONTINUED THUS TO SERVE UNTIL OCTOBER 31, 1919, WHEN HE WAS DISCHARGED FROM THE EMERGENCY COMMISSION OF MAJOR TO WHICH HE HAD BEEN APPOINTED WHILE ON ACTIVE DUTY. THE CLAIMANT HAS RECEIVED FOR THE PERIOD OVER WHICH THIS CLAIM FOR THE ALLOWANCES OF A RETIRED ENLISTED MAN EXTENDS THE RETIRED PAY OF A WARRANT OFFICER BY VIRTUE OF A PROVISION IN SEC. 127A OF THE ACT OF JUNE 4, 1920, 41 STAT., 786, WHICH READS:

RETIRED ENLISTED MEN WHO HAVE SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE UNITED STATES ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, INCLUDING THOSE WHO HAVE BEEN PLACED ON THE RETIRED LIST DURING THE WORLD WAR, AND WHO HAVE BEEN OR MAY HEREAFTER BE DISCHARGED FROM THEIR TEMPORARY COMMISSIONS, SHALL RECEIVE THE RETIRED PAY AND ALLOWANCES OF WARRANT OFFICERS OF THE RETIRED LIST * * *.

WHILE CONCEDING THAT UNDER SEC. 4A OF THE ACT OF JUNE 4, 1920, A WARRANT OFFICER IS ENTITLED TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS, WHICH, BY VIRTUE OF SEC. 1274, REVISED STATUTES, IS TO RETIREMENT AFTER 30 YEARS' SERVICE WITH 75 PERCENT OF THE PAY OF THE RANK UPON WHICH RETIRED, AND THAT THE TERM "ALLOWANCES" AS USED IN SEC. 127A IS SUPERFLUOUS, AS THE TERM "PAY" DOES NOT INCLUDE "ALLOWANCES," UNITED STATES V. LANDERS, 92 U.S., 77, IT IS CONTENDED THAT SEC. 4B OF THE ACT OF JUNE 4, 1920, SAVE TO THE CLAIMANT THE ALLOWANCES OF A RETIRED ENLISTED MAN WHILE RECEIVING THE "PAY AND ALLOWANCES" OF A RETIRED WARRANT OFFICER.

THIS CONTENTION IS DEVOID OF MERIT. THE SAVING CLAUSE IN SEC. 4B IS BY ITS EXPRESS TERMS CONFINED TO THAT SECTION. THE CHANGE OF THE RETIRED PAY STATUS OF CLAIMANT AS A RETIRED ENLISTED MAN FROM THAT OF RETIRED ENLISTED MEN GENERALLY TO THAT OF RETIRED WARRANT OFFICERS WAS NOT BY OPERATION OF SEC. 4B, BUT BY OPERATION OF SEC. 127A OF THE ACT. THE SAVING CLAUSE IN SEC. 4B APPLIES TO THE ENLISTED MEN OF THE ARMY ON THE ACTIVE LIST WHO WERE REQUIRED TO BE REGRADED AND PLACED IN ONE OF THE SEVEN GRADES ESTABLISHED BY THAT SECTION. MOREOVER, THE PAY OF THE CLAIMANT WAS INCREASED BY THE OPERATION OF SEC. 127A OF THE ACT OF JUNE 4 FROM $75.75 PER MONTH, WHICH INCLUDES THE $15.75 PER MONTH AS COMMUTATION OF ALL ALLOWANCES, TO $115.50 PER MONTH.