A-22003, SEPTEMBER 3, 1942, 22 COMP. GEN. 175

A-22003, SEPTEMBER 3, 1942, 22 COMP. GEN. 175

PAY - RETIRED ARMY OFFICERS - INACTIVE SERVICE ON RETIRED LIST FOR PAY PERIOD PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, AN ARMY OFFICER RETIRED PRIOR TO JULY 1, 1922, FOR DISABILITY FROM WOUNDS RECEIVED IN BATTLE MAY NOT COUNT, FOR THE PURPOSE OF ADVANCEMENT IN PAY PERIOD, THE INACTIVE SERVICE ON THE RETIRED LIST WHICH HE MAY COUNT FOR THE PURPOSE OF COMPUTING HIS LONGEVITY PAY. 7 COMP. GEN. 735, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. CARL WITCHER, U.S. ARMY, SEPTEMBER 3, 1942:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF JULY 8, 1942, TRANSMITTING A SUPPLEMENTAL VOUCHER STATED IN FAVOR OF MAJ. JOHN S. JADWIN, U.S. ARMY, RETIRED, FOR $77.50, REPRESENTING DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES OF THE FOURTH AND FIFTH PAY PERIODS FOR THE MONTH OF JUNE 1942, BASED ON THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, 56 STAT. 359, APPROVED JUNE 16, 1942.

IT APPEARS THAT THE OFFICER HAD SERVICE AS AN ENLISTED MAN FROM NOVEMBER 25, 1911, TO DECEMBER 2, 1916; SECOND AND FIRST LIEUTENANT OF CAVALRY DECEMBER 3, 1916, AND THAT WHILE SERVING IN THE GRADE OF CAPTAIN, PURSUANT TO THE ACT OF OCTOBER 1, 1890, 26 STAT. 562, HE WAS RETIRED WITH THE RANK OF MAJOR MAY 2, 1922, FOR "DISABILITY FROM WOUNDS RECEIVED IN BATTLE.' RETIREMENT THE OFFICER HAD 10 YEARS, 5 MONTHS AND 8 DAYS' SERVICE. ACTIVE SERVICE SINCE RETIREMENT IS CLAIMED FOR THE PERIOD MAY 3 TO JUNE 27, 1922, AND FROM AUGUST 11, 1941, INDICATING THAT THE OFFICER HAS LESS THAN 12 YEARS' ACTIVE SERVICE BOTH PRIOR AND SUBSEQUENT TO RETIREMENT, AND OVER 30 YEARS FOR LONGEVITY PAY PURPOSES BY REASON OF THE ACT OF MARCH 2, 1903, 32 STAT. 932.

THE BASIS OF THE CLAIM APPEARS TO BE CENTERED AROUND THE PRESUMED EFFECT OF OMISSION FROM THE PAY READJUSTMENT ACT OF 1942 OF LANGUAGE PREVIOUSLY APPEARING IN SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, 632, I.E., THAT "ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION" HENCE THAT INACTIVE TIME ON THE RETIRED LIST OF OFFICERS RETIRED PRIOR TO JUNE 30, 1922, FOR WOUNDS RECEIVED IN BATTLE UNDER THE ACT OF MARCH 2, 1903, 32 STAT. 932, SHOULD BE CREDITED FOR THE PURPOSE OF PERIOD PAY UNDER THE PROVISION APPEARING IN SECTION 1 OF THE ACT OF JUNE 16, 1942, THE PERTINENT PART OF WHICH PROVIDES,"* * * FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY * * *.' (UNDATED LETTER OF MAJOR JADWIN, HEADED HISTORICAL SECTION, NEW NATIONAL GUARD ARMORY, 19TH AND B STREETS SE.)

IN DECISION A-21237, DATED JUNE 27, 1928, CASE OF MAJOR LOUIS B. LAWTON, U.S. ARMY, RETIRED, IT WAS STATED:

THE QUESTION OF WHETHER AN OFFICER RETIRED PRIOR TO JULY 1, 1922, FOR WOUNDS RECEIVED IN BATTLE IS ENTITLED TO HAVE HIS BASE OR PERIOD PAY UNDER SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE ACT OF MARCH 2, 1903, 32 STAT. 932, AND THE ACT OF MAY 8, 1926, 44 STAT. 417, COMPUTED ON THE BASIS OF TIME IN INACTIVE STATUS ON THE RETIRED LIST WAS FULLY CONSIDERED IN DECISION OF MAY 19, 1928, 81 MS. COMP. GEN. 966, AND FOR THE REASONS STATED IN THE DECISION, COPY ENCLOSED, THE LONGEVITY PAY THAT MAY ACCRUE TO AN OFFICER OF THE ARMY AFTER RETIREMENT AND IN AN INACTIVE STATUS WHEN RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE PURSUANT TO THE ACT OF MARCH 2, 1903, IS SOLELY THE PERCENTAGE INCREASE OF PAY ON BASE PAY AND DOES NOT INCLUDE ANY OTHER PAY.

IT WAS STATED IN THE DECISION:

"SO FAR AS THESE VARIOUS ACTS ARE CONCERNED THEY LEAVE THE OFFICER RETIRED ON OR PRIOR TO JUNE 30, 1922, ENTITLED TO RETIRED PAY COMPUTED UNDER THE LAWS IN EFFECT PRIOR TO JULY 1, 1922, BUT UNDER THE ACT OF MAY 8, 1926, IF THE PAY OF AN OFFICER OF THE SAME RANK AND LENGTH OF SERVICE RETIRED AFTER JUNE 30, 1922, IS GREATER UNDER THE ACT OF JUNE 10, 1922, THE OFFICER RETIRED PRIOR TO JULY 1, 1922, IS TO BE PAID SUCH GREATER RATE --- BECAUSE THE REQUIREMENT OF THE ACT OF 1926 IS THAT SUCH OFFICER'S RETIRED PAY SHALL NOT BE LESS THAN THAT OF AN EQUAL OFFICER RETIRED SUBSEQUENT TO JUNE 30, 1922.'

THE DECISION 81 MS. COMP. GEN. 966, REFERRED TO, WAS PUBLISHED 7 COMP. GEN. 735, AND GAVE COMPREHENSIVE CONSIDERATION TO THE CLAIM OF MAJOR JADWIN AND CONCLUDED THAT INACTIVE TIME ON THE RETIRED LIST MAY NOT LEGALLY BE INCLUDED FOR PAY PERIOD PURPOSES. THAT CONCLUSION HAS THE SUPPORT OF THE SUPREME COURT OF THE UNITED STATES, CASE OF LEONARD V. UNITED STATES, 279 U.S. 40, 47.

IN EFFECT, THEREFORE, THE PRESENT CLAIM IS IDENTICAL TO THE PREVIOUSLY CONSIDERED JADWIN CASE AND THE LEONARD CASE. SEE FOR EXAMPLE THE LANGUAGE OF THE SUPREME COURT, 279 U.S. 44, WHERE IT WAS STATED:

* * * THIS CLAIM IS BASED ON THE PROVISION OF THE ACT OF MARCH 2, 1903, ALLOWING OFFICERS WHOSE RETIREMENT WAS ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, AS WAS PETITIONER-S, TO COUNT RETIRED SERVICE IN COMPUTING LONGEVITY PAY AND ON THE CLAUSE IN THE ACT OF 1922 WHICH PROVIDES THAT "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.'

IT WILL BE NOTED THE LANGUAGE UPON WHICH THE PETITIONER RELIED IN THE LEONARD CASE IS IDENTICAL TO THE LANGUAGE CONTAINED IN SECTION 1 OF THE ACT OF JUNE 16, 1942, UPON WHICH THE PAYEE OF THE SUPPLEMENTAL VOUCHER RELIES, BUT IT IS SOUGHT TO EMPHASIZE THAT THE RULINGS OF THE FORMER COMPTROLLER GENERAL AND OF THE SUPREME COURT OF THE UNITED STATES WERE PREDICATED MORE OR LESS ON THE PROVISION WHICH APPEARED IN SECTION 17 OF THE ACT OF JUNE 10, 1922, ABOVE REFERRED TO, AND THAT SINCE THAT LANGUAGE WAS OMITTED FROM THE PAY READJUSTMENT ACT OF 1942, SUCH RULINGS ARE NO LONGER APPLICABLE. NEITHER THE OMISSION NOR THE INCLUSION OF THE LANGUAGE REFERRED TO, WOULD AFFECT THE PRIOR HOLDINGS. SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 26, 1928, 45 STAT. 774, PROVIDED IN PERTINENT PART:

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 ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS. * * *

UNDER THE PROVISION OF THE ACT OF MAY 26, 1928, ONLY ACTIVE DUTY PERFORMED SINCE RETIREMENT MAY BE COUNTED ON OR AFTER MAY 26, 1928, FOR DETERMINING PAY PERIODS, AND SINCE ADVANCEMENT FROM ONE PAY PERIOD TO ANOTHER BY AN OFFICER ON THE RETIRED LIST INCIDENT TO ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT UNDER THE ACT OF MAY 26, 1928, IS IN EFFECT, A PROMOTION, THE PROVISION THAT "ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION" WAS NO LONGER NECESSARY AND WAS THEREFORE REPEALED BY THE ACT OF MAY 26, 1928.

SECTION 1 OF THE ACT OF JUNE 16, 1942, LIKE THE PROVISION OF SECTION 1 OF THE ACT OF JUNE 10, 1922, IS APPLICABLE TO OFFICERS ON THE ACTIVE LIST AND NOT TO RETIRED OFFICERS. LEONARD CASE, SUPRA. SUBSEQUENT TO JUNE 1, 1942, THE PAY AND ALLOWANCES OF RETIRED OFFICERS WHETHER IN AN INACTIVE OR ACTIVE DUTY STATUS IS COVERED BY SECTION 15 OF THE ACT OF JUNE 16, 1942, 56 STAT. 367, WHICH PROVIDES:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN NOW ON THE RETIRED LIST OR DRAWING RETAINER PAY, OR PERSONNEL IN AN EQUIVALENT STATUS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE AND RETIRED WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY AND, WHEN ON ACTIVE DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, AND, IF DEATH OCCURS WHEN ON ACTIVE DUTY STATUS, WHILE ON LEAVE OF ABSENCE OR SICK, THEIR DEPENDENTS SHALL NOT THEREBY BE DEPRIVED OF THE BENEFITS PROVIDED IN THE ACT APPROVED DECEMBER 17, 1919, AS AMENDED, AND IN THE ACT OF JUNE 4, 1920. ( ITALICS SUPPLIED.)

PART OF THIS SECTION INCORPORATES THE PROVISION OF SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 26, 1928, 45 STAT. 774, WHICH EXPRESSLY REQUIRES PERIOD PAY TO BE BASED UPON ACTIVE DUTY PERFORMED SINCE RETIREMENT, WHICH NECESSARILY EXCLUDES FOR THIS PURPOSE INACTIVE SERVICE ON THE RETIRED LIST. THIS OFFICE PERCEIVES NO BASIS UNDER THE LAW FOR PAYMENT OF THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.