A-8864, SEPTEMBER 15, 1925, 5 COMP. GEN. 195

A-8864, SEPTEMBER 15, 1925, 5 COMP. GEN. 195

ARMY PAY, LONGEVITY - RETIRED OFFICER ASSIGNED TO ACTIVE DUTY A RETIRED OFFICER OF THE ARMY, BELOW THE GRADE OF BRIGADIER GENERAL, LAWFULLY DETAILED TO ACTIVE DUTY AND ENTITLED TO THE FULL PAY AND ALLOWANCES OF HIS GRADE UNDER SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, IS ENTITLED TO COUNT ACTIVE SERVICE PERFORMED AFTER RETIREMENT IN DETERMINING HIS SERVICE FOR BASE OR PERIOD PAY WHILE ON ACTIVE DUTY. WHEN SUCH OFFICER IS RELIEVED FROM ACTIVE DUTY, HOWEVER, SUCH ACTIVE SERVICE AFTER RETIREMENT DOES NOT CHANGE THE BASE OR PERIOD PAY UPON WHICH THE RETIRED PAY OF THE OFFICER IS COMPUTED, BUT MAY BE COUNTED FOR LONGEVITY INCREASE OF RETIRED PAY AS AUTHORIZED BY THE ACT OF MAY 12, 1917, 40 STAT. 48.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 15, 1925:

THERE IS BEFORE THIS OFFICE VOUCHER NO. 1795 IN THE ACCOUNTS OF CAPT. S. B. ARMAT, FINANCE DIVISION, UNITED STATES ARMY, COVERING PAYMENT OF PAY AND ALLOWANCES TO COL. GEORGE J. HOLDEN, UNITED STATES ARMY, RETIRED, FOR THE MONTH OF NOVEMBER, 1924.

COLONEL HOLDEN WAS RETIRED OCTOBER 25, 1922, HAVING HAD 24 YEARS 2 MONTHS AND 27 DAYS' SERVICE, AND, ACCORDINGLY, WAS ENTITLED AT THE TIME OF RETIREMENT TO THE PAY AND ALLOWANCES OF AN OFFICER IN THE FIFTH PAY PERIOD. BY PARAGRAPH 14, SPECIAL ORDER NO. 202-O, AUGUST 28, 1919, HE HAD BEEN ASSIGNED TO DUTY AS PROFESSOR OF MILITARY SCIENCE AND TACTICS AT THE UNIVERSITY OF VERMONT AND STATE AGRICULTURAL COLLEGE, BURLINGTON, VT., AND UPON RETIREMENT, BY PARAGRAPH 22, SPECIAL ORDER NO. 252, OCTOBER 26, 1922, HE WAS CONTINUED ON SUCH ACTIVE DUTY. HE WAS PAID AS PER SAID VOUCHER THE PAY AND ALLOWANCES OF AN OFFICER WITH DEPENDENTS IN THE SIXTH PAY PERIOD, THE ACTIVE DUTY PERFORMED SINCE RETIREMENT BEING COUNTED TO MAKE UP THE 26 YEARS' SERVICE NECESSARY TO BRING HIM WITHIN THAT PERIOD. THE QUESTION PRESENTED IS WHETHER A RETIRED OFFICER MAY BECOME ENTITLED UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, TO THE PAY, ETC., OF THE NEXT HIGHER PERIOD FOR THE TIME WHILE ON ACTIVE DUTY AND ENTITLED TO FULL PAY AND ALLOWANCES.

SECTION 40B OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 777, AUTHORIZED THE PRESIDENT TO DETAIL SUCH NUMBERS OF RETIRED OFFICERS OF THE REGULAR ARMY AS MAY BE NECESSARY FOR DUTY AS PROFESSORS OF MILITARY SCIENCE AND TACTICS AT CERTAIN EDUCATIONAL INSTITUTIONS. SECTION 55C OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 780, AUTHORIZED THE SECRETARY OF WAR TO DETAIL SUCH AVAILABLE RETIRED OFFICERS OF THE REGULAR ARMY AS HE MAY DEEM NECESSARY TO CERTAIN OTHER SCHOOLS AND COLLEGES. THE ACT OF MAY 12, 1917, 40 STAT. 48, PROVIDED THAT THEREAFTER RETIRED OFFICERS OF THE ARMY DETAILED TO ACTIVE DUTY SHALL BE ENTITLED TO INCREASES OF LONGEVITY PAY BY REASON OF ACTIVE DUTY PERFORMED ON ACTIVE DETAIL SINCE RETIREMENT. THE SAID ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, PROVIDED IN SECTION 40B, 41 STAT. 777, THAT RETIRED OFFICERS BELOW THE GRADE OF BRIGADIER GENERAL SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES, AND IN SECTION 127A, 41 STAT. 786, PROVISION IS MADE FOR PROMOTION OF SUCH RETIRED OFFICERS BY REASON OF ACTIVE DUTY PERFORMED SINCE RETIREMENT.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDES:

* * * ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY AN OFFICER ON THE RETIRED LIST OR ITS EQUIVALENT SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION: * * *. RETIRED OFFICERS OF THE ARMY * * * BELOW THE GRADE OF BRIGADIER GENERAL * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.

THE ACT OF MARCH 2, 1925, 43 STAT. 1099, 1100, BY SECTION 2 PROVIDES THAT DUTY PERFORMED BY RETIRED OFFICERS OF THE REGULAR ARMY PURSUANT TO WAR DEPARTMENT ORDERS ISSUED UNDER SAID SECTIONS 40B OR 55C SHALL BE CONSTRUED TO BE ACTIVE DUTY FOR THE PURPOSE OF INCREASE OF LONGEVITY PAY OF SUCH RETIRED OFFICERS WITHIN THE MEANING OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, AND THE ACT OF MAY 12, 1917, AND THE ACT OF JUNE 10, 1922; AND BY SECTION 4 THAT SUCH DUTY PERFORMED PRIOR TO JULY 1, 1922, BY RETIRED OFFICERS OF THE REGULAR ARMY SHALL BE CONSTRUED TO BE ACTIVE DUTY FOR THE PURPOSE OF "PROMOTION OF SUCH RETIRED OFFICERS ON THE RETIRED LIST," WITHIN THE MEANING OF THE AFORESAID ACT OF JUNE 3, 1916, AS AMENDED BY THE ACT OF JUNE 4, 1920, AND THE AFORESAID ACT OF JUNE 10, 1922. THE EFFECT OF SAID ACT OF MARCH 2, 1925, IS TO GIVE TO DUTY PERFORMED BY A RETIRED OFFICER UNDER SAID SECTIONS 40B AND 55C THE SAME STATUS AS FULL MILITARY ACTIVE DUTY FOR THE PURPOSE OF LONGEVITY PAY AND FOR THE PURPOSE OF PROMOTION, HOWEVER, ONLY SUCH DUTY AS WAS PERFORMED PRIOR TO JULY 1, 1922, WAS AUTHORIZED THEREIN TO BE COUNTED FOR THE LATTER PURPOSE, WHICH PROVISION ACCORDS WITH THE PROVISION IN SAID SECTION 17 OF THE ACT OF JUNE 10, 1922, THAT ACTIVE DUTY PERFORMED AFTER JUNE 30, 1922, BY A RETIRED OFFICER SHALL NOT ENTITLE SUCH OFFICER TO PROMOTION.

IN 3 COMP. GEN. 212 IT WAS HELD IN EFFECT:

(1) THAT THE SAID PROVISION IN THE ACT OF MAY 12, 1917, AUTHORIZING INCREASED LONGEVITY PAY BY REASON OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT WAS NOT INCONSISTENT WITH ANY PROVISION IN THE ACT OF JUNE 10, 1922, AND WAS STILL IN FORCE AND EFFECT.

(2) THAT THE PROVISION IN THE ACTS OF JUNE 3, 1916, AND JUNE 4, 1920, AUTHORIZING THE PROMOTION OF RETIRED OFFICERS NOT ABOVE THE GRADE OF COLONEL BY REASON OF ACTIVE DUTY PERFORMED AFTER RETIREMENT WAS REPEALED BY THE SPECIFIC PROHIBITION CONTAINED IN SECTION 17 OF THE ACT OF JUNE 10, 1922.

(3) THAT THE ADVANCEMENT OF AN OFFICER ON THE RETIRED LIST FROM ONE PAY PERIOD TO ANOTHER UNDER THE ACT OF JUNE 10, 1922, BY REASON OF LENGTH OF SERVICE IS A PROMOTION WITHIN THE MEANING OF THE SAID PROVISION IN SECTION 17 OF THE ACT OF JUNE 10, 1922.

HOWEVER, THAT DECISION DID NOT CONSIDER OR DETERMINE THE RIGHTS OF A RETIRED OFFICER ON ACTIVE DUTY. THE ACT OF JUNE 10, 1922, PROVIDES THAT SUCH OFFICERS BELOW THE RANK OF BRIGADIER GENERAL WHEN ON ACTIVE DUTY SHALL RECEIVE FULL PAY AND ALLOWANCES. CLEARLY IT IS THE FULL ALLOWANCES PROVIDED BY EXISTING LAWS WHEN ON ACTIVE DUTY AND EQUALLY SO IT MUST BE THE FULL PAY PROVIDED BY EXISTING LAWS WHEN THE ACTIVE DUTY IS RENDERED. UNDER EXISTING LAW TWO RATES OF BASE OR PERIOD PAY ARE PROVIDED FOR A COLONEL; ONE, THE SIXTH PERIOD, $4,000, FOR A COLONEL OF OVER 26 YEARS' SERVICE; THE OTHER, THE FIFTH PERIOD, $3,500, FOR A COLONEL "NOT ENTITLED TO THE PAY OF THE SIXTH PERIOD.' THE BASE PAY OF A COLONEL CAN NOT BE ASCERTAINED WITHOUT A KNOWLEDGE OF THE SERVICE TO WHICH HE MAY BE ENTITLED CREDIT.

OFFICERS OF THE ARMY UNTIL THE ACT OF 1903, 32 STAT. 932, WERE ENTITLED TO ADDED INCREMENTS OF LONGEVITY PAY AFTER RETIREMENT UNDER A DECISION OF THE SUPREME COURT. UNITED STATES V. TYLER, 105 U.S. 244. THE ACT OF MAY 12, 1917, GIVES A RIGHT TO INCREASED LONGEVITY PAY FOR TO BE GIVEN A RETIRED OFFICER FOR THE PURPOSE OF DETERMINING HIS SERVICE FOR BASE PAY WHILE ON ACTIVE DUTY (AND ENTITLED TO FULL PAY AND ALLOWANCES) THE OFFICER WOULD BE ENTITLED TO BASE PAY FOR SERVICE AT TIME OF RETIREMENT ONLY AND ENTITLED TO CREDIT FOR LONGEVITY PAY FOR SERVICES SINCE RETIREMENT. CLEARLY STATUTORY ACTIVE SERVICE AFTER RETIREMENT IS SERVICE TO BE INCLUDED IN DETERMINING THE FULL PAY AND ALLOWANCES OF A RETIRED OFFICER ON ACTIVE DUTY EQUALLY WITH SERVICE WHILE ON THE ACTIVE LIST. THE PAYMENT HERE IN QUESTION HAVING BEEN BASED ON ACTIVE SERVICE BOTH BEFORE AND AFTER RETIREMENT WAS PROPER AND THE VOUCHER, IF OTHERWISE CORRECT, WILL BE PASSED IN THE DISBURSING OFFICER'S ACCOUNTS.

WHEN RELIEVED FROM ACTIVE DUTY THE OFFICER WILL BE ENTITLED TO HAVE HIS RETIRED PAY CALCULATED ONLY ON THE BASE OR PERIOD PAY HE WAS IN RECEIPT OF WHEN RETIRED AND WITHOUT CREDIT FOR ACTIVE SERVICE AFTER JUNE 30, 1922, AND SUBSEQUENT TO RETIREMENT, WITH LONGEVITY INCREASE FOR ACTIVE SERVICE AFTER RETIREMENT AS AUTHORIZED BY THE ACT OF MAY 12, 1917. SEE 3 COMP. GEN. 212.