B-12332, AUGUST 26, 1941, 21 COMP. GEN. 181

B-12332, AUGUST 26, 1941, 21 COMP. GEN. 181

PERIOD PAY - RETIRED CHIEF WARRANT OFFICERS - COUNTING OF ACTIVE DUTY AFTER RETIREMENT ACTIVE DUTY AFTER RETIREMENT MAY NOT BE COUNTED IN DETERMINING THE PERIOD PAY OF A RETIRED NAVY CHIEF WARRANT OFFICER. TO THE EXTENT THAT 10 COMP. GEN. 386 IS CONTRA, IT NO LONGER WILL BE FOLLOWED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 26, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 9, 1941, TRANSMITTING A LETTER FROM THE PAYMASTER GENERAL OF THE NAVY, DATED JULY 1, 1941, AS FOLLOWS:

1. THE ISSUANCE OF CERTIFICATES OF CREDITABLE RECORDS TO CHIEF WARRANT OFFICERS WAS FIRST REQUIRED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 578). THIS ACT PROVIDED---

"THAT CHIEF BOATSWAINS, CHIEF GUNNERS, CHIEF MACHINISTS, CHIEF CARPENTERS, CHIEF SAILMAKERS, CHIEF PHARMACISTS, AND CHIEF PAY CLERKS ON THE ACTIVE LIST WITH CREDITABLE RECORDS, SHALL, AFTER TWELVE YEARS FROM DATE OF COMMISSION, RECEIVE THE PAY AND ALLOWANCES, THAT ARE NOW OR MAY HEREAFTER BE ALLOWED A LIEUTENANT, UNITED STATES NAVY.' ( ITALICS SUPPLIED.) PARAGRAPH 12 OF SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 1 OF THE ACT OF FEBRUARY 16, 1929, ESTABLISHED THE PAY PERIODS TO WHICH "COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST" ARE ENTITLED.

2. SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 26, 1928, PROVIDES THAT THE PAY OF RETIRED OFFICERS AND WARRANT OFFICERS SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS.

3. THE COMPTROLLER GENERAL IN 10 COMP. GEN. 386 CONSIDERED THE RIGHT OF LIEUTENANT ( CHIEF BOATSWAIN) TIMOTHY SULLIVAN, U.S.N., RETIRED, WHO WAS PLACED ON THE RETIRED LIST PRIOR TO JULY 1, 1922, TO COUNT ACTIVE SERVICE SUBSEQUENT TO RETIREMENT IN DETERMINING PERIOD PAY TO WHICH ENTITLED UNDER THE ACT OF FEBRUARY 16, 1929. LIEUTENANT SULLIVAN AT TIME OF RETIREMENT HAD COMMISSIONED SERVICE OF 7 YEARS, 5 MONTHS, AND 29 DAYS AND SUBSEQUENT TO RETIREMENT PERFORMED ACTIVE COMMISSIONED SERVICE OF 3 YEARS, 1 MONTH, AND 24 DAYS. ON AUGUST 5, 1930 THE SECRETARY OF THE NAVY CERTIFIED THAT THE RECORD OF THIS OFFICER WAS CREDITABLE AFTER COMPLETION OF 10 YEARS' COMMISSIONED SERVICE WITHIN THE MEANING OF THE PROVISION OF THE ACT OF FEBRUARY 16, 1929.

4. THE COMPTROLLER GENERAL IN 10 COMP. GEN., 386 STATED:

"UNDER THE ACT OF MAY 8, 1926, COMMISSIONED OFFICERS RETIRED PRIOR TO JULY 1, 1922, ARE ENTITLED TO COUNT SERVICE FOR LONGEVITY WHICH COULD BE COUNTED ON JUNE 30, 1922. * * * UNDER THAT ACT LIEUTENANT SULLIVAN WAS NOT ENTITLED TO COUNT HIS COMMISSIONED SERVICE AFTER RETIREMENT FOR DETERMINING HIS PAY PERIOD BUT HE COULD COUNT ALL HIS NAVAL SERVICE (ENLISTED, WARRANT, AND COMMISSIONED) PRIOR TO RETIREMENT FOR LONGEVITY OR PERIOD PAY. BY THE ACT OF MAY 26, 1928, LIEUTENANT SULLIVAN IS ENTITLED TO COUNT HIS COMMISSIONED SERVICE PRIOR TO AND AFTER RETIREMENT IN DETERMINING HIS PERIOD PAY. COUNTING SUCH SERVICE GIVES HIM A TOTAL OF 10 YEARS, 7 MONTHS, AND 23 DAYS' COMMISSIONED SERVICE. UNDER THE ACT OF FEBRUARY 16, 1929, THE PAY OF RETIRED CHIEF WARRANT OFFICERS OF THE NAVY WHO WERE PLACED ON RETIRED LIST PRIOR TO FEBRUARY 16, 1929, MAY BE COMPUTED UPON THE RATES OF PAY AUTHORIZED IN THAT ACT. 9 COMP. GEN. 348.' ( ITALICS SUPPLIED.)

5. THE COMPTROLLER GENERAL IN DECISION OF OCTOBER 22, 1940, CONSIDERED THE RIGHT OF LIEUTENANT ( CHIEF MACHINIST) EMMET L. BOURKE, U.S.N. RETIRED, WHO WAS RETIRED ON JANUARY 1, 1937, TO COUNT ACTIVE SERVICE SUBSEQUENT TO RETIREMENT IN DETERMINING PERIOD PAY UNDER THE ACT OF FEBRUARY 16, 1929. THIS OFFICER REPORTED FOR ACTIVE DUTY ON NOVEMBER 8, 1939, AND ON JUNE 21, 1940, COMPLETED 20 YEARS COMMISSIONED SERVICE, INCLUDING 7 MONTHS AND 14 DAYS' SERVICE AS A RETIRED OFFICER ON ACTIVE DUTY. IN THIS DECISION THE COMPTROLLER GENERAL HELD THAT THE PAY OF A CHIEF WARRANT OFFICER UNDER THE ACT OF FEBRUARY 16, 1929, IS FIXED WITH RESPECT TO "CREDITABLE RECORDS ON THE ACTIVE LIST" AND STATED THAT:

"* * * UNDER THIS STATUTE ACTIVE DUTY AFTER RETIREMENT WOULD NOT BE SERVICE ON THE ACTIVE LIST AND A CERTIFICATE THAT SUCH ADDITIONAL SERVICE AFTER RETIREMENT WAS CREDITABLE WOULD NOT WARRANT A CHANGE IN THE BASE OR PERIOD PAY OF A CHIEF WARRANT OFFICER UPON WHICH HIS RETIRED PAY WAS FIXED UPON HIS RETIREMENT. * * *"

6. THE DECISION OF THE COMPTROLLER GENERAL OF OCTOBER 22, 1940, MAKES NO REFERENCE TO THE DECISION IN 10 COMP. GEN. 386 ALTHOUGH IT APPEARS FROM THE LATER DECISION THAT NO RETIRED CHIEF WARRANT OFFICER IS ENTITLED TO COUNT ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT IN DETERMINING HIS PERIOD PAY. IT IS REQUESTED THAT THE QUESTION BE SUBMITTED TO THE COMPTROLLER GENERAL AS TO WHETHER THE DECISION IN REFERENCE (H) IS INTENDED TO REVERSE THE DECISION IN 10 COMP. GEN. 386.

THE CONCLUSION IN THE DECISION OF OCTOBER 22, 1940, B-12332, WAS BASED UPON THE PROVISION CONTAINED IN THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186, 37 U.S.C. 5, WHICH PROVIDES THAT---

* * * COMMISSIONED WARRANT OFFICERS WITH CREDITABLE RECORDS ON THE ACTIVE LIST SHALL RECEIVE PAY AS FOLLOWS: DURING THE FIRST TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE SECOND PERIOD; AFTER TEN YEARS OF COMMISSIONED SERVICE, THE PAY OF THE THIRD PERIOD; AFTER 20 YEARS OF COMMISSIONED SERVICE THE PAY OF THE FOURTH PERIOD; * * *

THE SERVICE RECORD OF THE OFFICER CONSIDERED IN THE AFORESAID DECISION INDICATED THAT HE HAD BEEN RETIRED AS A CHIEF MACHINIST JANUARY 1, 1937, AT WHICH TIME HIS COMMISSIONED SERVICE TOTALED 19 YEARS, 4 MONTHS AND 16 DAYS. FOLLOWING RETIREMENT HE WAS RECALLED TO ACTIVE DUTY AND SUBSEQUENT TO THAT TIME HAD COMPLETED AN AGGREGATE OF 20 YEARS' COMMISSIONED SERVICE, INCLUDING 7 MONTHS AND 14 DAYS AS A RETIRED OFFICER ON ACTIVE DUTY. PRIOR TO HIS RETIREMENT, NAMELY, ON JUNE 7, 1929, A CERTIFICATE OF CREDITABILITY OF RECORD AFTER 10 YEARS OF COMMISSIONED SERVICE HAD BEEN ISSUED AND THE QUESTION PRESENTED FOR DECISION WAS WHETHER, IF THE OFFICER'S RECORD SHOULD BE CERTIFIED AS CREDITABLE AFTER 20 YEARS' COMMISSIONED SERVICE, HE WOULD LEGALLY BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THE FOURTH PAY PERIOD UNDER THE ACT OF FEBRUARY 16, 1929, SUPRA. AS A BASIS FOR THE CONCLUSION THEREIN IT WAS STATED AS FOLLOWS:

SECTION 17 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY THE ACT OF MAY 26, 1928, 45 STAT. 774, 37 U.S.C. 26, PROVIDES:

"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 PERIOD; * * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY 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, * * *.'

UNDER THIS PROVISION OF LAW LIEUTENANT BOURKE IS ENTITLED TO THE FULL PAY AND ALLOWANCES OF HIS PAY GRADE AS CHIEF WARRANT OFFICER ON THE RETIRED LIST, OF HIS LENGTH OF SERVICE, WITH A CREDITABLE RECORD ON THE ACTIVE LIST AFTER 10 YEARS OF SERVICE (19 COMP. GEN. 433 AT PAGE 436). DIFFERENT FROM OTHER COMMISSIONED OFFICERS OF THE NAVY THE RETIRED PAY OF A CHIEF WARRANT OFFICER CHANGES ONLY UPON ISSUANCE OF A CERTIFICATE OF CREDITABLE RECORD WHILE A COMMISSIONED OFFICER ON THE ACTIVE LIST, AND SECTION 17 OF THE JOINT SERVICE PAY ACT, QUOTED ABOVE, WILL NOT CHANGE HIS PERIOD PAY BY REASON OF ACTIVE SERVICE AFTER RETIREMENT UNLESS THERE IS AUTHORITY TO ISSUE A CERTIFICATE OF CREDITABLE RECORD AS AFTER 20 YEARS OF COMMISSIONED SERVICE, INCLUDING SERVICE BOTH ON THE ACTIVE LIST AND ACTIVE DUTY AFTER RETIREMENT.

EVER SINCE PROVISION WAS MADE FOR RETIREMENT OF OFFICERS OF THE ARMED FORCES THERE HAVE BEEN TWO LISTS OF OFFICERS, ACTIVE LIST AND RETIRED LIST, SO DENOMINATED BY STATUTE. SEE, FOR EXAMPLE, THE ACT OF 1930 QUOTED ABOVE. STATUTES APPLICABLE TO QUALIFICATION WHEN LIMITED TO OFFICERS ON THE ACTIVE LIST HAVE BEEN HELD NOT TO APPLY TO OFFICERS ON THE RETIRED LIST WHILE ON ACTIVE DUTY (17 OP. ATTY. GEN. 36; 25 ID. 508 AT PAGE 511; 28 ID. 486; 15 COMP. DEC. 230 AND 235; 19 ID. 540. ORDINARILY AN OFFICER IS RETIRED BUT ONCE. ROGET V. UNITED STATES, 148 U.S. 167 AT PAGE 172). THE PAY OF A CHIEF WARRANT OFFICER IS FIXED WITH RESPECT TO "CREDITABLE RECORDS ON THE ACTIVE T.' UNDER THIS STATUTE ACTIVE DUTY AFTER RETIREMENT WOULD NOT BE SERVICE ON THE ACTIVE LIST AND A CERTIFICATE THAT SUCH ADDITIONAL SERVICE AFTER RETIREMENT WAS CREDITABLE WOULD NOT WARRANT A CHANGE IN THE BASE OR PERIOD PAY OF A CHIEF WARRANT OFFICER UPON WHICH HIS RETIRED PAY WAS FIXED UPON HIS RETIREMENT. * * *

THE DECISION OF FEBRUARY 21, 1931, 10 COMP. GEN. 386, CONSIDERED THE EFFECT OF THE ACT OF MAY 8, 1926, 44 STAT. 417, ON THE PAY OF COMMISSIONED WARRANT OFFICERS RETIRED PRIOR TO JUNE 30, 1922, IN VIEW OF THE CHANGE IN THE PAY OF COMMISSIONED WARRANT OFFICERS MADE BY THE ACT OF FEBRUARY 16, 1929, 45 STAT. 1186. IN AUTHORIZING PAY AS AFTER 10 YEARS OF COMMISSIONED SERVICE, THERE WAS CONSIDERED WHAT THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER AFTER 10 YEARS OF COMMISSIONED SERVICE WOULD BE IF RETIRED SUBSEQUENTLY TO FEBRUARY 16, 1929, AND THE ACT OF MAY 26, 1928, 45 STAT. 774, AMENDING SECTION 17 OF THE ACT OF JUNE 10, 1922, WAS STATED AS AUTHORIZING THE COUNTING OF ACTIVE DUTY AFTER RETIREMENT FOR PERIOD PAY AS APPLICABLE TO CHIEF WARRANT OFFICERS. ON THIS BASIS THERE WAS AUTHORIZED IN THE CASE THERE CONSIDERED THE COUNTING OF ACTIVE DUTY AFTER RETIREMENT IF INCLUDED IN A CERTIFICATE OF CREDITABILITY ISSUED AFTER RETIREMENT, AND WITHOUT DISCUSSION OF THE FACT THAT A PART OF THE COMMISSIONED SERVICE TO BE COUNTED WAS RENDERED ON ACTIVE DUTY AFTER RETIREMENT, THAT THE CERTIFICATE OF CREDITABILITY WAS ISSUED LONG AFTER THE OFFICER'S RETIREMENT AND INCLUDED ACTIVE DUTY AFTER RETIREMENT AND THEREFORE NOT ON THE ACTIVE LIST. THAT DECISION, INSOFAR AS IT RELATES TO ADJUSTMENT OF THE RETIRED PAY OF CHIEF WARRANT OFFICERS RETIRED PRIOR TO JUNE 30, 1922, IS NOT AFFECTED BY THE DECISION OF OCTOBER 22, 1940, BUT TO THE EXTENT THAT IT HAS BEEN CONSIDERED AS AUTHORITY FOR PAYING RETIRED CHIEF WARRANT OFFICERS ON THE BASIS OF A CERTIFICATE OF CREDITABLE RECORD ISSUED AFTER RETIREMENT AND INCLUSIVE OF ACTIVE DUTY NOT WHILE ON THE ACTIVE LIST OF THE NAVY, IT WILL NO LONGER BE FOLLOWED.