B-51749, MAY 18, 1951, 30 COMP. GEN. 458

B-51749, MAY 18, 1951, 30 COMP. GEN. 458

PAY - RETIRED - LONGEVITY CREDITS - INACTIVE TIME ON RETIRED LIST A REGULAR ARMY OFFICER WHO WAS RETIRED FOR PHYSICAL DISABILITY PRIOR TO JUNE 1, 1942, AND WHO, BECAUSE OF ADDITIONAL PHYSICAL DISABILITY INCURRED AFTER THAT DATE WHILE SERVING ON ACTIVE DUTY IN A HIGHER TEMPORARY GRADE, WAS PROMOTED ON THE RETIRED LIST PURSUANT TO SECTION 4 OF THE ACT OF JUNE 29, 1943, WITH RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE, IS NOT ENTITLED TO INCLUDE INACTIVE TIME ON THE RETIRED LIST PRIOR TO JUNE 1, 1942, IN THE COMPUTATION OF HIS RETIRED PAY UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. C. K. MCALISTER, DEPARTMENT OF THE ARMY, MAY 18, 1951:

THERE HAS BEEN RECEIVED BY ENDORSEMENT DATED JANUARY 18, 1951, OF THE CHIEF OF FINANCE, U.S. ARMY, YOUR LETTER DATED DECEMBER 29, 1950, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MAJOR JOHN B. HOLMBERG, U.S. ARMY, RETIRED, IN THE AMOUNT OF $8,330.84, COVERING ADJUSTMENT IN RETIRED PAY AT THE RATE OF $110.94 PER MONTH FOR THE PERIOD MARCH 10, 1945, THROUGH JUNE 30, 1946, AND AT THE RATE OF $122.02 PER MONTH FOR THE PERIOD JULY 1, 1946, THROUGH DECEMBER 31, 1950.

IT APPEARS THAT MAJOR HOLMBERG WAS RETIRED AS A CAPTAIN ON OCTOBER 30, 1922, BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, PURSUANT TO THE PROVISIONS OF SECTIONS 1251 AND 1274, REVISED STATUTES, WITH RETIRED PAY OF 75 PERCENTUM OF THE PAY OF THE RANK UPON WHICH RETIRED. WAS RECALLED TO ACTIVE DUTY SEPTEMBER 11, 1942; APPOINTED A MAJOR IN THE RETIRED LIST FEBRUARY 12, 1945; AND WAS RELIEVED FROM ACTIVE DUTY MARCH 9, 1945. APPARENTLY, IT HAS BEEN DETERMINED THAT THE OFFICER INCURRED ADDITIONAL PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENTUM PERMANENT WHILE SERVING UNDER THE TEMPORARY APPOINTMENT AS MAJOR AND, CONSEQUENTLY, HE IS ENTITLED TO THE BENEFITS OF THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, AS AMENDED, 10 U.S.C. 985C, WHICH PROVIDES THAT ANY OFFICER ON THE RETIRED LIST OF THE REGULAR ARMY WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS ADDITIONAL PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE,"BE PROMOTED ON THE RETIRED LIST TO SUCH HIGHER GRADE AND RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE.'

AT THE TIME OF RETIREMENT IN 1922, THE OFFICER HAD COMPLETED 5 YEARS AND 21 DAYS' SERVICE; HE WAS ON THE RETIRED LIST, INACTIVE, FOR 19 YEARS, 10 MONTHS, AND 10 DAYS. FOLLOWING HIS RETIREMENT IN 1922, HE SERVED ON ACTIVE DUTY FOR TWO YEARS, 5 MONTHS, AND 29 DAYS. HE HAS BEEN PAID RETIRED PAY AS A MAJOR WITH OVER 6 YEARS' SERVICE--- CREDIT BEING GIVEN FOR SERVICE PRIOR TO RETIREMENT AND ACTIVE SERVICE SUBSEQUENT TO RETIREMENT. HE CLAIMS RETIRED PAY OF A MAJOR WITH OVER 27 YEARS' SERVICE, INCLUDING CREDIT FOR INACTIVE TIME ON THE RETIRED LIST, ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF DONALD F. CARROLL V. UNITED STATES, C.1CLS. NO. 47690, DECIDED DECEMBER 6, 1948. ALSO, SEE GEORGE H. SHEA V. UNITED STATES, C.1CLS. NO. 49370, DECIDED MARCH 6, 1951. INASMUCH AS THE DECISION OF THE COURT OF CLAIMS IN THE CARROLL CASE APPEARS TO BE CONTRARY TO DECISION OF THIS OFFICE DATED NOVEMBER 15, 1946, B-51749, 26 COMP. GEN. 323, YOU REQUEST DECISION AS TO WHETHER THE COURT'S OPINION WILL BE FOLLOWED IN THIS AND SIMILAR CASES.

IN THE SAID DECISION OF NOVEMBER 15, 1946, IT WAS CONCLUDED, INTER ALIA, THAT NOTHING IN SECTION 4 OF THE ACT OF JUNE 29, 1943, COULD BE CONSIDERED AS AUTHORIZING MAJORS HOLMBERG AND CARROLL TO INCLUDE INACTIVE TIME ON THE RETIRED LIST IN THE COMPUTATION OF THEIR RETIRED PAY. IN ITS OPINION, IN THE CARROLL CASE THE COURT APPARENTLY DID NOT DISAGREE WITH THE CONCLUSION OF THIS OFFICE IN THAT RESPECT SINCE IT STATED THAT:

* * * THIS PLAINTIFF HAS BEEN PAID ON THE BASIS OF THE TIME HE SERVED ON ACTIVE DUTY. EXCEPT FOR THE FACT THAT HE COMES WITHIN THE PROVISIONS OF THE LAST PARAGRAPH OF SECTION 15 (OF THE PAY READJUSTMENT ACT OF 1942) HE WOULD HAVE BEEN PAID ALL THAT HE IS ENTITLED TO RECEIVE.

THE SAID LAST PARAGRAPH (WHICH IS THE FOURTH PARAGRAPH) OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, EFFECTIVE JUNE 1, 1942, PROVIDES AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT. (ITALICS SUPPLIED.)

IT WILL BE NOTED THAT SUCH PROVISION IS NOT APPLICABLE TO ALL OFFICERS WHO HAD SERVICE PRIOR TO NOVEMBER 12, 1918, BUT ONLY TO SUCH OFFICERS "HEREAFTER RETIRED" UNDER ANY PROVISION OF LAW. THE COURT MUST HAVE CONCLUDED, THEREFORE, THAT CARROLL WAS ENTITLED TO RECOVER ON THE BASIS THAT HE WAS "RETIRED" AFTER JUNE 1, 1942, WITHIN THE MEANING OF THE SAID FOURTH PARAGRAPH, ALTHOUGH THE RECORD PLAINLY SHOWED THAT HE HAD ACTUALLY BEEN RETIRED ON APRIL 1, 1926, AND THAT AFTER JUNE 1, 1942, FOLLOWING A PERIOD OF ACTIVE DUTY AS A RETIRED OFFICER, HE HAD RECEIVED ONLY AN "ADVANCEMENT" ON THE RETIRED LIST TO THE GRADE OF MAJOR.

THE WORD "HEREAFTER" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2ND EDITION, AS MEANING "AFTER THIS IN TIME OR ORDER; IN SOME FUTURE TIME OR STATE" AND "IN A STATUTES IS CONSTRUED TO REFER TO THE TIME OF ITS TAKING EFFECT.' ALSO, SEE VOLUME 19, WORDS AND PHRASES, PERM. USED.' HEREAFTER.' HENCE, IT IS THE VIEW OF THIS OFFICE THAT MAJOR HOLMBERG'S CASE CLEARLY DOES NOT FALL WITHIN THE LITERAL MEANING OF THE SAID FOURTH PARAGRAPH AND, FURTHERMORE, IT IS THE CONSIDERED OPINION OF THIS OFFICE THAT SUCH PARAGRAPH WAS NOT INTENDED TO APPLY TO ANY OFFICER, SUCH AS MAJOR HOLMBERG, WHO HAD BEEN PLACED ON THE RETIRED LIST OF THE REGULAR ARMY LONG PRIOR TO JUNE 1, 1942, THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942. THE LEGISLATIVE HISTORY OF THE SAID PARAGRAPH STRONGLY SUPPORTS SUCH OPINION. SUCH LEGISLATIVE HISTORY CLEARLY SHOWS THAT THE PURPOSE OF THE SAID FOURTH PARAGRAPH WAS TO EXTEND TO OFFICERS OF THE NAVY CERTAIN BENEFITS WHICH THERETOFORE HAD BEEN GRANTED OFFICERS ON THE "ACTIVE LIST"--- AS DISTINGUISHED FROM THE RETIRED LIST--- OF THE REGULAR ARMY UNDER SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380. UNDER THE SAID ACT OF JUNE 13, 1940, AND PRIOR TO THE ENACTMENT OF THE SAID SECTION 15, ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO HAD COMPLETED NOT LESS THAN 15 NOR MORE THAN 29 YEARS' SERVICE COULD BE RETIRED, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE SECRETARY OF WAR, WITH RETIRED PAY EQUAL TO 2 1/2 PERCENTUM OF "HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT," MULTIPLIED BY THE NUMBER OF YEARS' SERVICE NOT IN EXCESS OF 29, BUT SUCH AN OFFICER WHO HAD SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, WAS PERMITTED TO BE RETIRED UPON HIS OWN APPLICATION WITH "75 PERCENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT," EXCEPT THAT OFFICERS WITH LESS THAN 20 YEARS' SERVICE COULD BE SO RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT HAD BEEN APPROVED BY THE SECRETARY OF WAR. SEE, ALSO, SECTION 2 OF THE ACT OF JULY 29, 1941, 55 STAT. 606. HOWEVER, WHILE UNDER SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950, OFFICERS OF THE LINE OF THE NAVY WHO HAD COMPLETED 20 YEARS' SERVICE COULD BE RETIRED UPON THEIR OWN APPLICATION IN THE DISCRETION OF THE PRESIDENT, THEIR RETIRED PAY WAS LIMITED TO 2 1/2 PERCENTUM OF THEIR ACTIVE-DUTY PAY AT THE TIME OF RETIREMENT MULTIPLIED BY THE NUMBER OF/YEARS' SERVICE, EVEN THOUGH THEY HAD SERVED PRIOR TO NOVEMBER 12, 1918. THUS, THE RETIRED PAY OF AN OFFICER OF THE REGULAR ARMY, UNDER THE 1940 ACT, WHO HAD SERVED PRIOR TO NOVEMBER 12, 1918, WAS GREATER THAN THAT AUTHORIZED UNDER THE 1938 ACT FOR OFFICERS OF THE LINE OF THE NAVY WITH COMPARABLE SERVICE, AND IT WAS THIS DISPARITY IN THE RETIRED PAY OF SUCH OFFICERS OF THE ARMY AND NAVY WHICH PROMPTED MR. MAAS, RANKING MINORITY MEMBER OF THE HOUSE COMMITTEE ON NAVAL AFFAIRS, TO OFFER AS AN AMENDMENT TO S. 2025, 77TH CONGRESS, THE PROVISION WHICH NOW APPEARS AS THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE SAID AMENDMENT WAS PROPOSED BY MR. MAAS MAY 12, 1942, WHILE THE BILL, S. 2025, WHICH BECAME THE PAY READJUSTMENT ACT OF 1942, WAS UNDER CONSIDERATION BY THE HOUSE OF REPRESENTATIVES SITTING AS THE COMMITTEE OF THE WHOLE HOUSE. 88 CONG. REC. 4126. AT THAT TIME THE FOLLOWING STATEMENTS WERE MADE RESPECTING THE AMENDMENT, ITS SCOPE, AND PURPOSE:

MR. MAAS. MR. CHAIRMAN, I OFFER AN AMENDMENT, WHICH I SEND TO THE CLERK'S DESK.

THE CLERK READ AS FOLLOWS:

"AMENDMENT OFFERED TO MR. MAAS: ON PAGE 55, AFTER LINE 22, ADD A NEW PARAGRAPH AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENT OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS RETIREMENT.'

I AM NOW OFFERING AN AMENDMENT WHICH WILL NOT AFFECT THE RETIRED PAY OF ANYBODY NOW ON THE RETIRED LIST, BUT WILL SIMPLY BRING THE NAVY INTO CONFORMITY WITH THE EXISTING LAW COVERING THE ARMY.

IT HAS BEEN REPEATEDLY STATED THAT THE ARMY AND NAVY SHOULD BE TREATED ALIKE. THE PAY BILL IS SUPPOSED TO BE ONE PAY BILL FOR ALL ALIKE. ALL SERVICES COME UNDER ONE SYSTEM OF PAY, BUT UNFORTUNATELY A SPECIFIC PROVISION WAS PASSED FOR WORLD WAR OFFICERS IN THE ARMY AND DID NOT INCLUDE THE NAVY OR MARINE CORPS.

MR. HARNESS. WILL THE GENTLEMEN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM INDIANA.

MR. HARNESS. DID I UNDERSTAND THE GENTLEMAN TO SAY THAT THIS WILL NOT AFFECT ANY RETIRED NAVAL OFFICERS?

MR. MAAS. ON THE RETIRED LIST AT PRESENT.

MR. HARNESS. ALL THE RETIRED NAVAL OFFICERS ON THE RETIRED LIST NOW DRAW 75 PERCENT.

MR. MAAS. OH, NO; THE GENTLEMAN IS MISTAKEN. WE HAVE A GREAT MANY WORLD WAR OFFICERS AND OTHER OFFICERS WHO ARE DRAWING ONLY 2 1/2 PERCENT MULTIPLIED BY THE NUMBER OF YEARS SERVED.

MR. HARNESS. THE GENTLEMAN'S AMENDMENT WOULD INCREASE THEM TO 75 PERCENT?

MR. MAAS. THE AMENDMENT WOULD NOT AFFECT THEM AT ALL. ALL MY AMENDMENT DOES IS TO ENACT FOR THE NAVY THE EXISTING LAW FOR THE ARMY, WHICH IS THAT ANY WORLD WAR OFFICER IN THE NAVY WHO MAY HEREAFTER BE RETIRED SHALL BE RETIRED ON 75 PERCENT OF HIS PAY, WHICH IS EXISTING LAW FOR THE ARMY.

MR. VINSON OF GEORGIA. WILL THE GENTLEMAN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM GEORGIA.

MR. VINSON OF GEORGIA. THE EFFECT OF THE GENTLEMAN'S AMENDMENT WOULD BE TO CARRY OUT FOR THE NAVY WHAT WAS PROVIDED IN THE ACT OF JUNE 13, 1940, FOR THE ARMY?

MR. MAAS. YES; AND IT SHOULD HAVE BEEN DONE FOR THE NAVY AT THAT TIME, BUT UNFORTUNATELY IT WAS NOT. I THINK IT IS THE SENSE OF THE HOUSE AND THE CONGRESS THAT THE TIME LAWS ON PAY SHALL APPLY TO BOTH THE ARMY AND THE NAVY, AS WELL AS TO THE COAST GUARD AND MARINE CORPS. ALL I AM ASKING IS THAT EXISTING LAW FOR THE ARMY BE EXTENDED TO THE NAVY AND MARINE CORPS.

MR. HARNESS. THE EFFECT OF THE GENTLEMAN'S AMENDMENT WOULD BE TO INCREASE THE PAY OF THE RETIRED NAVAL OFFICERS WHO ARE NOW DRAWING LESS THAN 75 PERCENT OF THEIR PAY?

MR. MAAS. NO; IT WILL NOT AFFECT ANY RETIRED OFFICER NOW ON THE RETIRED LIST. THE AMENDMENT SAYS,"HEREAFTER.'

MR. MAY. WILL THE GENTLEMAN YIELD?

MR. MAAS. I YIELD TO THE GENTLEMAN FROM KENTUCKY.

MR. MAY. IT WILL AFFECT THOSE WHO ARE HEREAFTER RETIRED AND PUT THEM ON AN INCREASED BASIS OVER WHAT THEY ARE NOW GETTING?

MR. MAAS. IT WILL PUT THEM ON EXACTLY THE SAME BASIS AS THE ARMY, AND THE GENTLEMAN SPONSORED THAT BILL. IT WILL ACCORD TO NAVAL OFFICERS WHO HAVE SERVED IN THE WORLD WAR AND WHO ARE RETIRED HEREAFTER THE SAME BENEFITS THEY WOULD GET IF THEY WERE ARMY OFFICERS AND WERE RETIRED HEREAFTER.

MR. MAY. DOES THE GENTLEMAN KNOW HOW MUCH THE INCREASE WILL BE? LET US TAKE A PARTICULAR RANK, FOR INSTANCE, A COMMANDER IN THE NAVY. HOW MUCH INCREASE WOULD THERE BE FOR HIM IF HE IS RETIRED ON THE BASIS OF 75 PERCENT?

MR. MAAS. A COMMANDER WHO IS FORCED TO RETIRE ON ACCOUNT OF FAILURE TO BE SELECTED WOULD HAVE HAD AT LEAST 27 YEARS' SERVICE. HE WOULD GET 27 TIMES 2 1/2 PERCENT. IF HE IS RETIRED UNDER THIS PROVISION, HE WILL GET 30 TIMES 2 1/2 PERCENT. IT IS NOT A LARGE INCREASE, A FEW DOLLARS A MONTH, BUT IT WOULD PUT HIM ON A PARITY WITH A LIEUTENANT COLONEL IN THE ARMY WHO IS RETIRED UNDER SIMILAR CIRCUMSTANCES.

THE CHAIRMAN. THE QUESTION IS ON THE AMENDMENT OFFERED BY THE GENTLEMAN FROM MINNESOTA.

THE QUESTION WAS TAKEN; AND ON A DIVISION (DEMANDED BY MR. MAAS) THERE WERE--- AYES 88, NOES 55.

SO THE AMENDMENT WAS AGREED TO. (ITALICS SUPPLIED.)

IN VIEW OF THE EXPRESS PROVISION IN THE FOURTH PARAGRAPH OF THE SAID SECTION 15, GRANTING THE BENEFITS THEREOF TO OFFICERS "HEREAFTER" RETIRED, AND THE LEGISLATIVE HISTORY THEREOF AS SET OUT ABOVE, IT APPEARS OBVIOUS THAT THE CONGRESS HAD NO INTENTION OF EXTENDING THE BENEFITS OF THE SAID FOURTH PARAGRAPH TO OFFICERS WHO WERE PLACED ON THE RETIRED LIST PRIOR TO JUNE 1, 1942, OR TO SUCH OFFICERS WHO PERCHANCE MIGHT BE RECALLED TO ACTIVE DUTY AFTER JUNE 1, 1942, AND, UPON COMPLETION OF SUCH ACTIVE DUTY, REVERT TO AN INACTIVE STATUS ON THE RETIRED LIST. ALTHOUGH A RETIRED OFFICER MAY BE RECALLED TO ACTIVE DUTY HE IS STILL ON THE RETIRED LIST ( FULMER V. UNITED STATES, 32 C.1CLS. 112, 119; BYRD V. UNITED STATES, 103 C.1CLS. 285; RUDD V. UNITED STATES, 71 C.1CLS. 432), AND WHEN HIS ASSIGNMENT TO ACTIVE DUTY IS TERMINATED, HE IS NOT AGAIN "RETIRED" (HAVING RETIRED WHEN HIS NAME ORIGINALLY WAS PLACED ON THE RETIRED LIST) BUT MERELY REVERTS TO AN INACTIVE STATUS ON THE RETIRED LIST, NOTWITHSTANDING THAT HE MAY BE PROMOTED OR ADVANCED TO A HIGHER GRADE OR RANK ON SUCH RETIRED LIST. THERE IS NOTHING WHATEVER TO SUGGEST THAT THE CONGRESS INTENDED ANYTHING DIFFERENT BY THE PLAIN LANGUAGE OF THE STATUTORY PROVISIONS HERE INVOLVED. MAJOR HOLMBERG PLAINLY WAS NOT RETIRED AFTER JUNE 1, 1942, AND, HENCE, HE PLAINLY DOES NOT COME WITHIN THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND PLAINLY IS NOT ENTITLED THEREUNDER TO COUNT INACTIVE TIME ON THE RETIRED LIST TO INCREASE HIS RETIRED PAY. CF. SECTION 203 (A) OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1085, PROVIDING THAT EACH COMMISSIONED OFFICER OF THE REGULAR ARMY, ETC., HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN 6 MONTHS DURING THE PERIOD SEPTEMBER 6, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW ,COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE," WITH THE EXPRESS PROVISION THAT "RETIRED PAY OF SUCH HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST.'

FOR SUCH REASONS, AND IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY GRANTING OTHERWISE QUALIFIED OFFICERS RETIRED PRIOR TO JUNE 1, 1942, THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15, OR FURTHER JUDICIAL PROCEEDINGS CLARIFYING THE MATTER, THIS OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING PAYMENT OF APPROPRIATED FUNDS IN THIS OR SIMILAR CASES BASED UPON THE DECISION OF THE COURT OF CLAIMS IN THE CARROLL AND SHEA CASES. ACCORDINGLY, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE AND THE VOUCHER STATED IN FAVOR OF MAJOR HOLMBERG WILL BE RETAINED IN THIS OFFICE.