A-79388, AUGUST 27, 1936, 16 COMP. GEN. 187

A-79388: Aug 27, 1936

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WOULD HAVE BEEN RETIRED AT A DATE PRIOR TO THE COMPLETION OF AN ADDITIONAL THREE YEARS OF SERVICE. IS NOT ENTITLED TO RETIRED PAY IN EXCESS OF THAT TO WHICH ENTITLED FOR SERVICE TO DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SAID ACT. WHO WAS RETIRED ON JUNE 1. IS ENTITLED TO RETIRED PAY BASED ON ACTIVE DUTY PAY OF HIS GRADE WITH OVER 21 YEARS' SERVICE. THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO CAPTAINS OF THE ARMY AND MARINE CORPS WHO HAVE COMPLETED 17 YEARS' SERVICE. PROVISION IS MADE FOR AN INCREASE OF 5 PERCENT OF THE BASE OR PERIOD PAY FOR EACH 3 YEARS OF SERVICE UP TO 30 YEARS. ON WHICH DATE HE WAS ASSIGNED TO ACTIVE DUTY. THAT HE WAS DISENROLLED OCTOBER 10. HE IS ENTITLED TO COUNT FOR LONGEVITY PURPOSES HIS ENLISTED SERVICE AND ACTIVE DUTY IN THE MARINE CORPS RESERVE.

A-79388, AUGUST 27, 1936, 16 COMP. GEN. 187

PAY - RETIRED - LONGEVITY SERVICE CREDITS INVOLVING UNIFORM RETIREMENT ACT AN OFFICER OF THE MARINE CORPS WHO, BUT FOR THE UNIFORM RETIREMENT ACT OF APRIL 23, 1930, 46 STAT. 253, WOULD HAVE BEEN RETIRED AT A DATE PRIOR TO THE COMPLETION OF AN ADDITIONAL THREE YEARS OF SERVICE, IS NOT ENTITLED TO RETIRED PAY IN EXCESS OF THAT TO WHICH ENTITLED FOR SERVICE TO DATE RETIREMENT WOULD HAVE OCCURRED BUT FOR SAID ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJOR JAMES F. MORIARTY, UNITED STATES MARINE CORPS, AUGUST 27, 1936:

BY DIRECTION OF THE SECRETARY OF THE NAVY IN THIRD ENDORSEMENT, AUGUST 1, 1936, THERE HAS BEEN RECEIVED YOUR LETTER REQUESTING DECISION WHETHER CAPT. EDWARD F. O-DAY, UNITED STATES MARINE CORPS, WHO WAS RETIRED ON JUNE 1, 1936, FOR PHYSICAL DISABILITY INCIDENT TO SERVICE, IS ENTITLED TO RETIRED PAY BASED ON ACTIVE DUTY PAY OF HIS GRADE WITH OVER 21 YEARS' SERVICE.

UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO CAPTAINS OF THE ARMY AND MARINE CORPS WHO HAVE COMPLETED 17 YEARS' SERVICE; ALSO, PROVISION IS MADE FOR AN INCREASE OF 5 PERCENT OF THE BASE OR PERIOD PAY FOR EACH 3 YEARS OF SERVICE UP TO 30 YEARS.

THE SERVICE RECORD OF CAPTAIN O-DAY AS SUBMITTED SHOWS HE ENLISTED IN THE MARINE CORPS MAY 31, 1915, AND SERVED UNTIL JULY 13, 1918; THAT HE ACCEPTED APPOINTMENT AS SECOND LIEUTENANT, MARINE CORPS RESERVE, JULY 14, 1918, ON WHICH DATE HE WAS ASSIGNED TO ACTIVE DUTY; THAT HE WAS DISENROLLED OCTOBER 10, 1918, AND ACCEPTED APPOINTMENT AS SECOND LIEUTENANT (TEMPORARY), UNITED STATES MARINE CORPS; THAT HE RECEIVED PERMANENT APPOINTMENT AS SECOND LIEUTENANT MARCH 30, 1921. HIS SERVICE IN THE MARINE CORPS RESERVE BEING ACTIVE AND BEING A COMMISSIONED OFFICER ON JUNE 30, 1922, HE IS ENTITLED TO COUNT FOR LONGEVITY PURPOSES HIS ENLISTED SERVICE AND ACTIVE DUTY IN THE MARINE CORPS RESERVE. YOU STATE THAT HIS ACTIVE DUTY PAY FOR THE MONTH OF MAY 1936 WAS $325 COMPOSED OF BASE PAY OF THE FOURTH PAY PERIOD ($3,000) INCREASED 30 PERCENT FOR 18 YEARS' LONGEVITY. YOU QUESTION WHETHER NOTWITHSTANDING CAPTAIN O-DAY WAS NOT ENTITLED TO A HIGHER RATE OF PAY ON THE ACTIVE LIST HIS RETIRED PAY SHOULD NOT BE COMPUTED ON THE BASIS OF 21 YEARS OF SERVICE, HE HAVING COMPLETED 21 CALENDAR YEARS OF SERVICE ON MAY 30, 1936, 1 DAY PRIOR TO RETIREMENT.

THE ORDERS PLACING CAPTAIN O-DAY ON THE RETIRED LIST UNDER DATE OF MAY 5, 1936, ARE AS FOLLOWS:

FROM: THE MAJOR GENERAL COMMANDANT.

TO: CAPTAIN EDWARD F. O-DAY, U.S.M.C., ENETAI INN, BREMERTON, WASHINGTON.

SUBJECT: TRANSFER TO THE RETIRED LIST.

1. THE NAVAL RETIRING BOARD, U.S. NAVAL HOSPITAL, PUGET SOUND NAVY YARD, BREMERTON, WASHINGTON, BEFORE WHICH YOU APPEARED ON 5 MARCH 1936, FOUND YOU INCAPACITATED FOR ACTIVE SERVICE AND THAT YOUR INCAPACITY IS PERMANENT AND THE RESULT OF AN INCIDENT OF THE SERVICE.

2. THE PRESIDENT OF THE UNITED STATES, ON 15 APRIL 1936, APPROVED THE FINDING OF THE BOARD AND DIRECTED THAT YOU BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST, IN CONFORMITY WITH THE PROVISIONS OF THE U.S. CODE, TITLE 34, SECTION 417, ON 1 JUNE 1936.

3. ACCORDINGLY, YOU WILL BE TRANSFERRED TO THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS ON 1 JUNE 1936, WITH THE RANK OF CAPTAIN.

SECTION 1453, REVISED STATUTES (SECTION 417, TITLE 34, U.S. CODE) PROVIDES (SEE SECTION 1 OF THE ACT OF MAY 29, 1934, 48 STAT. 811):

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY * * *.

THE ACT OF APRIL 23, 1930, 46 STAT. 253 (5 U.S. CODE, SUPPLEMENT 47A) PROVIDES:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE 1ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID 1ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

SEC. 2. THIS ACT SHALL BECOME EFFECTIVE JULY 1, 1930. ALL LAWS OR PARTS OF LAWS IN SO FAR AS IN CONFLICT HEREWITH, ARE REPEALED.

OFFICERS RETIRED UNDER SECTION 1453, REVISED STATUTES, ARE ENTITLED TO 75 PERCENT OF THE PAY OF THE GRADE OR RANK HELD AT THE TIME OF THEIR RETIREMENT. SEE SECTION 991, U.S. CODE, TITLE 34.

THE ACT OF APRIL 23, 1930, MERELY FIXES A LATER DATE FOR RETIREMENT- - THE 1ST DAY OF THE MONTH NEXT FOLLOWING, TO OBTAIN UNIFORMITY AND SIMPLIFY COMPUTATIONS--- THAN WOULD OTHERWISE HAVE BEEN THE EFFECTIVE DATE OF RETIREMENT UNDER THE CITED SECTION OF THE REVISED STATUTES.

IN THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912, PAGE 992, IS THE FOLLOWING SYNOPSIS OF AN OPINION SHOWING THE WAR DEPARTMENT INTERPRETATION OF SECTION 1251, REVISED STATUTES, IN THIS RESPECT BEFORE THE ACT OF APRIL 23, 1930:

IN THE CASE OF AN OFFICER FOUND INCAPACITATED FOR ACTIVE DUTY, HELD THAT HE PASSES TO THE RETIRED LIST UPON THE DATE WHEN HE IS NOTIFIED OF THE APPROVED ACTION OF THE RETIRING BOARD IN HIS CASE. C. 23873 SEPTEMBER 19, 1908, AND APRIL 6, 1909.

THIS IS IN AGREEMENT WITH THE EARLY DECISIONS OF THE ACCOUNTING OFFICERS. IN 12 COMP. DEC. 628 (A RETIREMENT IN THE MARINE CORPS UNDER THE ARMY ACT OF OCT. 1, 1890, 26 STAT. 562), THE OFFICER WAS EXAMINED FOR PROMOTION TO A VACANCY OCCURRING JUNE 18, 1904, WAS FOUND PHYSICALLY DISQUALIFIED, HIS RETIREMENT WAS APPROVED BY THE PRESIDENT MARCH 14, 1906, AND HE WAS RETIRED AS OF JUNE 18, 1904, THE DATE HIS PROMOTION WOULD HAVE BEEN EFFECTIVE HAD HE QUALIFIED PHYSICALLY, NOTIFICATION THEREOF BEING ADDRESSED TO HIM MARCH 15, 1906. THE DIFFERENCE BETWEEN THE PAY RECEIVED BY HIM AS A SECOND LIEUTENANT ON THE ACTIVE LIST, $1,400 PER ANNUM, AND THE RETIRED PAY OF FIRST LIEUTENANT ON THE RETIRED LIST, $1,125 PER ANNUM, DURING THE INTERIM WAS $467.50. HOWEVER, IN THAT DECISION THE RULE AS STATED BY THE JUDGE ADVOCATE GENERAL IS INDICATED AS IN ACCORD WITH PRIOR HOLDINGS OF THE ACCOUNTING OFFICERS WHICH ARE CITED AT PAGE 631.

BUT, IN 17 COMP. DEC. 533, THE COMPTROLLER OF THE TREASURY HELD THAT A MARINE OFFICER RETIRED FOR PHYSICAL DISABILITY APPARENTLY UNDER SECTION 1251, REVISED STATUTES, BECAME A RETIRED OFFICER FROM THE DATE OF THE PRESIDENT'S ACTION, CITING IN SUPPORT OF THAT VIEW TERRY V. THE UNITED STATES, DECIDED BY THE COURT OF CLAIMS MARCH 30, 1908, NO. 28148 (NOT REPORTED), IN WHICH A NAVAL OFFICER WAS RETIRED FOR AGE UNDER SECTION 1444, REVISED STATUTES, WHILE EN ROUTE FROM AN OVERSEAS STATION TO HIS HOME, AND IT WAS HELD THAT RETIREMENT TOOK EFFECT ON THE DATE OF THE PRESIDENT'S ACTION. IN 18 COMP. DEC. 747, IT WAS HELD THAT AN OFFICER OF THE NAVY RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1453, REVISED STATUTES (PRACTICALLY IDENTICAL WITH SEC. 1251, REVISED STATUTES), WHERE THE PRESIDENT'S ACTION ON THE RECOMMENDATION OF THE RETIRING BOARD WAS TAKEN JULY 15, 1911, BUT ORDERS WERE NOT ISSUED IN THE CASE UNTIL OCTOBER 5, 1911, AND WERE NOT RECEIVED BY THE OFFICER UNTIL OCTOBER 10, 1911, ON THE AUTHORITY OF THE TERRY CASE AND THE PRIOR ACTION IN 17 COMP. DEC. 533, THE OFFICER WAS RETIRED AND THEREFORE ENTITLED TO RETIRED PAY ONLY FROM AND AFTER JULY 15, 1911.

THESE LATER DECISIONS WOULD SEEM ALSO TO BE IN ACCORD WITH THE EFFECT, IF NOT THE PRECISE HOLDING, IN STEINMETZ V. THE UNITED STATES, 33 CT.CLS. 404, WHERE A MEDICAL OFFICER OF THE ARMY WAS, IN APRIL 1879, FOUND BY A BOARD ORGANIZED PURSUANT TO SECTION 1246, REVISED STATUTES, INCAPACITATED FOR ACTIVE SERVICE, WHICH FINDING WAS NOT ACTED UPON BY THE PRESIDENT UNTIL HIS APPROVAL FEBRUARY 26, 1891, WHEREUPON ON THE SAME DAY THE OFFICER WAS ADVISED BY TELEGRAM BY THE ADJUTANT GENERAL--- "YOU ARE RETIRED THIS DAY AND ORDERED HOME," INDICATING THAT THE ACTION OF THE PRESIDENT FIXED THE TIME WHEN THE OFFICER PASSED FROM THE ACTIVE LIST TO THE RETIRED LIST. SEE, ALSO, 32 OP.A.G. 176, AND FILE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY 26543-62-1, AUGUST 28, 1911, ANNOTATION OF WHICH WILL BE FOUND ON PAGE 638 OF LAWS RELATING TO THE NAVY, ANNOTATED 1922.

A CASUAL EXAMINATION OF THE NAVY REGISTER INDICATES THAT RETIREMENT UNDER SECTIONS 417 AND 681, TITLE 34, U.S. CODE, PRIOR TO JULY 1, 1930, WERE MADE EFFECTIVE ON VARIOUS DAYS OF THE MONTH, PRESUMABLY THE DATE OF APPROVAL BY THE PRESIDENT IN ACCORD WITH THE CITED OPINIONS OF THE ATTORNEY GENERAL AND JUDGE ADVOCATE GENERAL. AS AN OFFICER OF THE MARINE CORPS RETIRED FOR INCAPACITY RESULTING FROM INCIDENT OF SERVICE PRIOR TO JULY 1, 1930, PASSED TO THE RETIRED LIST ON DATE THE PRESIDENT APPROVED THE ACTION OF THE RETIRING BOARD, IT IS OBVIOUS IN THIS CASE THAT THE DATE THE RETIREMENT WOULD HAVE OCCURRED BUT FOR THE ACT OF APRIL 23, 1930, WAS APRIL 15, 1936, A DATE PRIOR TO MAY 30, 1936, AT WHICH TIME CAPTAIN O-DAY HAD LESS THAN 21 YEARS' SERVICE. A 77811, JULY 20, 1936. ON THE EVIDENCE APPEARING CAPTAIN O-DAY IS NOT ENTITLED TO RETIRED PAY BASED ON ACTIVE DUTY PAY OF OVER 21 YEARS' SERVICE.

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