A-8864, JUNE 17, 1927, 6 COMP. GEN. 829

A-8864, JUNE 17, 1927, 6 COMP. GEN. 829

PAY - LONGEVITY - RETIRED OFFICERS OF THE ARMY THE ACT OF MAY 12, 1917, 40 STAT. 48, PROVIDING THAT RETIRED OFFICERS OF THE ARMY SHALL BE ENTITLED TO COUNT ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN COMPUTING LONGEVITY PAY, WAS REPEALED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625 3 COMP. GEN. 212; 5 ID. 195, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JUNE 17, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 22, 1927, REQUESTING RECONSIDERATION OF 3 COMP. GEN. 212, AND 5 ID. 195, IN SO FAR AS IT WAS HELD THEREIN THAT ADVANCEMENT OF A RETIRED OFFICER OF THE ARMY FROM ONE PAY PERIOD TO ANOTHER BY REASON OF ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, WITHOUT ADVANCEMENT IN RANK, WAS A PROMOTION WITHIN THE MEANING OF THAT WORD AS USED IN SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AND THEREFORE PROHIBITED BY THAT ACT.

YOU CONTEND THAT PROMOTION IN THE ARMY HAS ALWAYS MEANT ONLY AN ADVANCEMENT IN RANK AS DISTINGUISHED FROM PAY; THAT THE SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES DREW A CLEAR DISTINCTION BETWEEN PROMOTION AND ADVANCEMENT THROUGH PAY PERIODS BY REASON OF LENGTH OF SERVICE ALONE, AND THAT IT IN NO WAY CONFUSED THESE TERMS AS SHOWN BY ITS COMMENTS, EXCERPTS FROM WHICH YOU QUOTE, ON BILL H.R. 10972, WHICH, WITH CERTAIN MINOR AMENDMENTS, WAS AFTERWARDS ENACTED AS THE ACT OF JUNE 10, 1922.

THE WORD "PROMOTION" MEANS MOVING FORWARD; ADVANCEMENT; AND AS APPLIED TO OFFICERS MAY MEAN ADVANCEMENT IN RANK OR INCREASE OF PAY, OR BOTH, DEPENDENT UPON THE CONNECTION IN WHICH IT IS USED. SEE 26 COMP. DEC. 306, WHERE THE WORD "PROMOTION" AS USED IN THE ACT OF JULY 1, 1918, 40 STAT. 717, IN ITS APPLICATION TO CHIEF WARRANT OFFICERS, WAS HELD TO REFER TO ADVANCEMENT IN PAY GRADE.

THE QUESTION HERE PRESENTED IS AS TO THE SENSE IN WHICH IT WAS USED IN SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDING:

* * * ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION. * * *

THE EXCERPTS FROM THE STATEMENT OF THE SPECIAL COMMITTEE QUOTED BY YOU WERE WITH REFERENCE TO THE APPLICATION OF THE ACT OF JUNE 10, 1922, TO OFFICERS ON THE ACTIVE LIST AND ARE NOT CONCLUSIVE AS TO THE QUESTION HERE PRESENTED. THE LAWS PROVIDING FOR PROMOTION AND INCREASE OF PAY OF OFFICERS OF THE ARMY ON THE RETIRED LIST BY REASON OF ACTIVE DUTY PERFORMED AFTER RETIREMENT ARE THE FOLLOWING:

SECTION 24 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 183, PROVIDED THAT THEREAFTER ANY RETIRED OFFICER, WHO HAS BEEN OR SHALL BE DETAILED ON ACTIVE DUTY, SHALL RECEIVE THE RANK, PAY, AND ALLOWANCES OF THE GRADE, NOT ABOVE THAT OF MAJOR, THAT HE WOULD HAVE ATTAINED IN DUE COURSE OF PROMOTION IF HE HAD REMAINED ON THE ACTIVE LIST FOR A PERIOD BEYOND THE DATE OF HIS RETIREMENT EQUAL TO THE TOTAL AMOUNT OF TIME DURING WHICH HE HAS BEEN DETAILED ON ACTIVE DUTY SINCE HIS RETIREMENT.

THE ACT OF MAY 12, 1917, 40 STAT. 48, PROVIDED THAT THEREAFTER ANY RETIRED OFFICER OF THE ARMY WHO HAS BEEN DETAILED TO ACTIVE DUTY AND WHO HAS SINCE HIS RETIREMENT SERVED ON ACTIVE DETAIL SHALL BE ENTITLED TO INCREASES OF LONGEVITY PAY, TO BE COMPUTED AS PROVIDED BY EXISTING STATUTE FOR THE COMPUTATION OF LONGEVITY PAY, FOR THE TIME OF HIS SERVICE BEFORE RETIREMENT AND ON ACTIVE DETAIL SINCE HIS RETIREMENT.

SECTION 24 OF THE ACT OF JUNE 3, 1916, WAS AMENDED BY THE ACT OF JULY 9, 1918, 40 STAT. 890, BY SUBSTITUTING THE WORD "COLONEL" FOR "MAJOR," AND AS THUS AMENDED WAS REENACTED AND INCLUDED IN THE NEW SECTION 127A OF THE ACT OF JUNE 3, 1916, ADDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 786.

THE COMPTROLLER OF THE TREASURY IN DECISION OF JULY 28, 1916, 23 COMP. DEC. 58, HELD THAT A RETIRED OFFICER OF THE ARMY WAS NOT ENTITLED UNDER THE ACT OF JUNE 3, 1916, TO COUNT THE TIME HE WAS ON ACTIVE DUTY AFTER RETIREMENT IN COMPUTING HIS LONGEVITY PAY.

THE ACT OF MAY 12, 1917, WAS EVIDENTLY ENACTED BECAUSE OF THIS DECISION.

SUBSEQUENTLY, HOWEVER, THE COURT OF CLAIMS IN THE CASE OF JONAS V. UNITED STATES, 50 CT.CLS. 281, HELD THAT THE PURPOSE OF THE ACT OF JUNE 3, 1916, WAS TO INCREASE THE PAY AS WELL AS TO PROVIDE FOR THE PROMOTION OF RETIRED OFFICERS WHO ARE DETAILED ON ACTIVE DUTY, AND THAT THE ACT DID GIVE TO RETIRED OFFICERS OF THE ARMY DETAILED TO ACTIVE DUTY THE LONGEVITY PAY WHICH WOULD ACCRUE TO THEM BY REASON OF THEIR ADDED ACTIVE SERVICE AFTER RETIREMENT, WHICH PAY THEY COULD NOT THERETOFORE RECEIVE BY REASON OF THE ACT OF MARCH 2, 1903, 32 STAT. 932.

THE LAW PROVIDING FOR THE PROMOTION AND INCREASE OF PAY OF RETIRED OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD BY REASON OF ACTIVE DUTY SINCE RETIREMENT IS THE ACT OF JULY 1, 1918, 40 STAT. 717, WHICH PROVIDED THAT THEREAFTER, 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.

THIS PROVISION WAS CONSTRUED AS ENTITLING RETIRED OFFICERS PROMOTED THEREUNDER TO INCREASE OF LONGEVITY PAY BY REASON OF ACTIVE DUTY PERFORMED SINCE RETIREMENT. SEE 25 COMP. DEC. 601. THE OPERATION OF THIS PROVISION, HOWEVER, UNLIKE THE SIMILAR PROVISIONS RELATING TO THE ARMY, WAS LIMITED TO "DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST.'

THERE IS NO DOUBT THAT THE SAID PROVISIONS OF THE ACTS OF JUNE 3, 1916, AND JUNE 4, 1920, PROVIDING THAT RETIRED OFFICERS OF THE ARMY DETAILED TO ACTIVE DUTY SHOULD RECEIVE THE RANK, PAY, AND ALLOWANCES THEY WOULD HAVE ATTAINED IN DUE COURSE OF PROMOTION HAD THEY REMAINED ON THE ACTIVE LIST, NOT ABOVE THAT OF COLONEL, AND THE SAID PROVISIONS OF THE ACT OF JULY 1, 1918, PROVIDING FOR THE PROMOTION OF RETIRED OFFICERS OF THE NAVY, MARINE CORPS, AND COAST GUARD, BY REASON OF ACTIVE DUTY PERFORMED SINCE RETIREMENT, INCLUDING THE NECESSARY IMPLICATION THEREIN THAT SUCH ACTIVE DUTY AFTER RETIREMENT SHOULD ALSO BE COUNTED FOR LONGEVITY PAY PURPOSES, ARE INCONSISTENT WITH THE PROVISION REFERRED TO IN SECTION 17 OF THE ACT OF JUNE 10, 1922, AND WERE THEREFORE REPEALED BY THE LATTER ACT.

THERE IS BUT ONE OTHER LAW, THE ACT OF MAY 12, 1917, PROVIDING FOR INCREASE OF RETIRED PAY OF RETIRED OFFICERS BY REASON OF ACTIVE DUTY PERFORMED AFTER RETIREMENT, AND IT APPLIES ONLY TO RETIRED OFFICERS OF THE ARMY. THIS ACT IS INCONSISTENT WITH ONE OF THE AVOWED PURPOSES OF THE ACT OF JUNE 10, 1922, TO ESTABLISH A PARITY IN PAY OF THE SERVICES MENTIONED IN THE LATTER ACT.

THE EVIDENT OBJECT OR PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE SAID PROVISION IN SECTION 17 OF THE ACT OF JUNE 10, 1922, WHICH WAS DEALING WITH THE QUESTION OF PAY, WAS NOT ONLY TO PROHIBIT THE FURTHER ADVANCEMENT IN RANK OF RETIRED OFFICERS BUT TO DISCONTINUE AFTER JUNE 30, 1922, ANY INCREASE OF RETIRED PAY OF RETIRED OFFICERS OF ANY OF THE SERVICES MENTIONED THEREIN BY REASON OF ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, AND THEREBY TO DISCONTINUE THE DISPARITY IN RETIRED PAY OF RETIRED OFFICERS OF THE DIFFERENT SERVICES PREVIOUSLY EXISTING.

IT THUS APPEARS THAT THE WORD "PROMOTION" WAS USED IN SAID SECTION 17 NOT ONLY IN THE SENSE OF ADVANCEMENT IN RANK BUT ALSO IN THE SENSE OF INCREASE OF PAY.

ON FURTHER CONSIDERATION OF THE MATTER IT MUST BE HELD, THEREFORE, THAT THE PROVISION IN QUESTION OF THE ACT OF MAY 12, 1917, BEING INCONSISTENT WITH THE ACT OF JUNE 10, 1922, WAS ALSO REPEALED BY THE LATTER ACT.

THE CONCLUSION IS FORTIFIED BY A REFERENCE TO THE HISTORY OF THE LEGISLATION BEFORE THE JOINT COMMITTEE OF THE HOUSE AND SENATE APPOINTED UNDER SECTION 13 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND THE SPECIAL COMMITTEES APPOINTED IN THE HOUSE AND SENATE TO CONSIDER AND REPORT A BILL FOR THE READJUSTMENT OF PAY AND ALLOWANCES OF OFFICERS OF THE SIX SERVICES AFFECTED BY THE JOINT SERVICE PAY ACT. SEE HOUSE REPORT NO. 753, SIXTY- SEVENTH CONGRESS, SECOND SESSION. AFTER HEARINGS BEFORE THE JOINT COMMITTEE, A TENTATIVE BILL WAS DRAWN BY MR. MCKENZIE. SEE "SPECIAL COMMITTEE PRINT," SIXTY SEVENTH CONGRESS, SECOND SESSION (NO NUMBER),"OUTLINE OF A TENTATIVE PAY BILL SUGGESTED BY HON. JOHN C. MCKENZIE (PRINTED FOR THE USE OF THE SPECIAL COMMITTEE ON THE READJUSTMENT OF SERVICE PAY) " AND REPRINTED ON PAGE 40 OF THE HEARINGS BEFORE THE SPECIAL COMMITTEE OF THE HOUSE OF REPRESENTATIVES ON H.R. 10972, SIXTY- SEVENTH CONGRESS, SECOND SESSION. SECTION 19 OF THAT BILL PROVIDED:

THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO AFFECT IN ANY MANNER THE PAY OF OFFICERS NOW ON THE RETIRED LIST, OR OFFICERS IN AN EQUIVALENT STATUS, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE NOW RECEIVING. HEREAFTER OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THEIR RETIRED PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF THE ACTIVE PAY WHICH THEY ARE RECEIVING AS PROVIDED IN THIS ACT AT THE TIME OF RETIREMENT. HEREAFTER NO OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO IS ON THE RETIRED LIST, OR IN AN EQUIVALENT STATUS, SHALL RECEIVE ANY INCREASE OF RETIRED OR EQUIVALENT PAY ON ACCOUNT OF PROMOTION ATTAINED OR LENGTH OF SERVICE ACCUMULATED BECAUSE OF ACTIVE DUTY PERFORMED WHILE A RETIRED OFFICER.

THIS BILL AFTER DISCUSSION WAS REVISED BY THE JOINT COMMITTEE WITH THE ASSISTANCE OF MEMBERS OF THE SERVICES AFFECTED BY THE PENDING LEGISLATION. SEE STATEMENT OF MR. MCKENZIE, PAGE 1 OF THE HEARINGS BEFORE THE SPECIAL COMMITTEE OF THE HOUSE. THE REVISED BILL CONTAINED THE FOLLOWING SECTION 17:

THAT ON AND AFTER JULY 1, 1922, RETIRED OFFICERS AND WARRANT OFFICERS SHALL HAVE THEIR RETIRED PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS CT: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN NOW ON THE RETIRED LIST OR OFFICERS OR WARRANT OFFICERS IN AN EQUIVALENT STATUS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION. HEREAFTER RETIRED OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.

THE COMMENTS OF THE MEMBERS OF THE SERVICES WHO PARTICIPATED IN THE REVISION OF THE BILL (SEE PAGE 2 OF THE HEARINGS BEFORE THE SPECIAL HOUSE COMMITTEE) CONTAIN THE FOLLOWING, PAGE 36 OF THE HEARINGS:

THE BILL PROPOSES THAT ALL EXISTING LAWS AUTHORIZING THE PROMOTION OF RETIRED OFFICERS SHALL BE REPEALED. THE LIMIT OF JUNE 30, 1922, IS SET AS THE DATE WHEN PRESENT PROMOTION OF RETIRED OFFICERS THROUGH ACTIVE DUTY SHALL CEASE. IT IS FELT THAT OFFICERS WHO RETURN TO ACTIVE DUTY AND GAIN PROMOTION THEREBY DID SO IN GOOD FAITH AND IN ACCORDANCE WITH THE WILL OF CONGRESS AS EXPRESSED BY LAW. IT WOULD SEEM TO BE A MORAL OBLIGATION THAT THIS CONTRACT ENTERED INTO IN GOOD FAITH BY THE OFFICER SHALL BE OBSERVED BY THE GOVERNMENT FOR SUCH REASONABLE TIME AS WILL TERMINATE AT THE END OF THE PRESENT FISCAL YEAR. THE BILL PROVIDES ALSO THAT SERVICE ON THE ACTIVE LIST BY THE RETIRED OFFICER, OR ITS EQUIVALENT, SHALL NOT ENTITLE AN OFFICER TO AN INCREASE IN HIS RETIRED PAY, ALTHOUGH IT PROVIDES THAT WHEN RETIRED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN ARE ON ACTIVE DUTY THEY SHALL RECEIVE THE FULL PAY AND ALLOWANCES OF THEIR GRADE.

THE SPECIAL COMMITTEES IN REPORTING THE LANGUAGE NOW FOUND IN THE LAW AND CONTAINED, AS QUOTED ABOVE, IN H.R. 10972, ADOPTED THIS COMMENT AS TO THE EFFECT OF THE LANGUAGE IN QUESTION. THAT IT WAS THE PURPOSE OF THE COMMITTEE TO REPEAL ALL LAWS UNDER WHICH RETIRED OFFICERS MIGHT RECEIVE A FURTHER INCREASE OF PAY FOR SERVICES AFTER RETIREMENT APPEARS ALSO FROM THE MINORITY REPORT OF THE COMMITTEE ON H.R. 10972. SEE HOUSE REPORT 926, PART 2, SIXTY-SEVENTH CONGRESS, SECOND SESSION, PAGE 9, WHERE IT IS STATED:

MANY RETIRED OFFICERS HAVE BEEN TEMPORARILY CALLED INTO ACTIVE SERVICE SINCE THE WAR UNDER AUTHORITY OF A SPECIAL ACT AND ADVANCED TO HIGHER GRADES, THUS ENTITLING THEM TO INCREASED RETIRED PAY. THIS SPECIAL ACT WAS UNWISE, HAS BEEN GREATLY ABUSED, AND THE MEMBERS OF THE JOINT COMMITTEE WERE IN FULL AGREEMENT THAT IT SHOULD BE REPEALED. AUTHORIZING CONTINUING LONGEVITY CREDITS FOR ACTIVE SERVICE AFTER RETIREMENT FOR OFFICERS OF THE ARMY IN 3 COMP. GEN. 212 AND 5 COMP. GEN. 195, THE DOCUMENTS NOW AVAILABLE AND AUTHORIZED TO BE USED IN CONSTRUING AN AMBIGUOUS STATUTE WERE NOT CONSIDERED. AN EXAMINATION THEREOF REQUIRES RECONSIDERATION OF THOSE DECISIONS, AND SO FAR AS THEY AUTHORIZE LONGEVITY CREDIT TO RETIRED OFFICERS FOR ACTIVE DUTY AFTER RETIREMENT AND SUBSEQUENT TO JUNE 30, 1922, THEY WILL NOT BE AUTHORITY FOR SUCH PAYMENTS AND WILL NOT BE FOLLOWED IN THE AUDIT OF ACCOUNTS AFTER PAYMENTS FOR THE MONTH OF JUNE, 1927, TO THE OFFICERS OF THE ARMY AND MARINE CORPS AFFECTED BY THE CITED DECISIONS.