B-24901, MAY 23, 1942, 21 COMP. GEN. 1037

B-24901, MAY 23, 1942, 21 COMP. GEN. 1037

PAY - RETIRED NAVY OFFICER ON ACTIVE DUTY - SAVED PAY RIGHTS A. NAVY LIEUTENANT ON THE RETIRED LIST ON THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922, WHOSE RETIRED PAY, BY REASON OF THE SAVING CLAUSE IN SECTION 17 OF THE SAID ACT, WAS COMPUTED ON THE RATES PRESCRIBED IN THE ACT OF MAY 13, 1908, IS NOT ENTITLED, UPON BEING CALLED TO ACTIVE DUTY IN THE RANK (LIEUTENANT COMMANDER) TO WHICH HE WAS ADVANCED ON THE RETIRED LIST PURSUANT TO THE ACT OF JUNE 21, 1930, TO THE PAY OF A LIEUTENANT COMMANDER COMPUTED UNDER THE 1908 ACT, BUT IS ENTITLED ONLY TO THE PAY PRESCRIBED FOR THAT GRADE BY THE 1922 ACT. A RETIRED NAVY OFFICER ON ACTIVE DUTY RECEIVING, BY REASON OF THE SAVING CLAUSE IN SECTION 17 OF THE ACT OF JUNE 10, 1922, THE PAY OF HIS GRADE COMPUTED UNDER THE ACT OF MAY 13, 1908, IS NOT ENTITLED TO THE 10 PERCENT INCREASE IN PAY FOR FOREIGN SERVICE AUTHORIZED BY THE 1908 ACT, IN VIEW OF SECTION 15 OF THE 1922 ACT ABOLISHING THE INCREASE FOR FOREIGN SERVICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, MAY 23, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 28, 1942, WITH ENCLOSURES, REQUESTING A DECISION RELATIVE TO THE PROPER RATE OF ACTIVE DUTY PAY AND ALLOWANCES PAYABLE TO LT. COMDR. H. H. PORTER, U.S. NAVY, RETIRED. THE INDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS SUBMITTING THE MATTER TO YOU IS AS FOLLOWS:

1. AT THE TIME LIEUTENANT COMMANDER H. H. PORTER, U.S.N., RETIRED, WAS CALLED TO ACTIVE DUTY, HE WAS DRAWING RETIRED PAY AT THE RATE OF $195.00 PER MONTH, COMPUTED AS THREE-FOURTHS OF $260.00 PER MONTH,THE ACTIVE DUTY PAY OF A LIEUTENANT WITH OVER 15 YEARS' SERVICE AS PRESCRIBED BY THE ACT OF MAY 13, 1908. THIS OFFICER WAS ADVANCED TO THE RANK IF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF THE ACT OF JUNE 21, 1930, WHICH CONFERRED THE HIGHER RANK FOR PURPOSES OF RANK AND PRECEDENCE BUT NOT FOR THE PURPOSE OF PAY WHILE ON THE ACTIVE OR RETIRED LIST. ACCORDINGLY, UNTIL THE ENACTMENT OF PUBLIC LAW 340 OF DECEMBER 15, 1941, HE WAS ENTITLED TO ACTIVE DUTY PAY COMPUTED AS 100 PERCENT OF THE PAY WHICH HE WAS RECEIVING ON THE RETIRED LIST PLUS THE ALLOWANCES PRESCRIBED FOR AN OFFICER OF THE SAME RANK AND SERVICE ON THE ACTIVE LIST.

2. PUBLIC LAW 340 APPROVED DECEMBER 15, 1941 (55 STAT. 800) PROVIDES:

"THAT ALL COMMISSIONED OFFICERS OF THE NAVY AND MARINE CORPS ON THE RETIRED LIST SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE RANK OR GRADE IN WHICH THEY SERVE ON SUCH ACTIVE DUTY: PROVIDED, THAT THIS ACT SHALL NOT OPERATE TO REDUCE THE PAY AND ALLOWANCES OF SUCH RETIRED OFFICERS WHILE ON ACTIVE DUTY.'

3. UNDER THE PROVISIONS OF THE ABOVE QUOTED ACT, EFFECTIVE DECEMBER 15, 1941, LIEUTENANT COMMANDER PORTER IS ENTITLED TO THE PAY AND ALLOWANCES OF THE RANK IN WHICH HE IS SERVING ON ACTIVE DUTY. AT THE TIME OF THE ENACTMENT OF THIS LEGISLATION, LIEUTENANT COMMANDER PORTER WAS DRAWING ACTIVE DUTY PAY AND ALLOWANCES COMPUTED AS FOLLOWS: PAY (SAVED PAY ACT OF MAY 13, 1908, FOR LIEUTENANT

WITH OVER 15 YEARS' SERVICE) ---------------------------- $3,120.00 RENTAL ALLOWANCE (ACT OF JUNE 10, 1922) ------------------- 960.00 SUBSISTENCE ALLOWANCE (ACT OF JUNE 10, 1922) -------------- 438.00

TOTAL PAY AND ALLOWANCES ------------------------------ 4,518.00

EFFECTIVE DECEMBER 15, 1941, LIEUTENANT COMMANDER PORTER IS ENTITLED TO THE PAY AND ALLOWANCES OF THE RANK IN WHICH HE IS SERVING ON ACTIVE DUTY. COMPUTED ON THE BASIS OF THE PAY PRESCRIBED BY THE ACT OF JUNE 10, 1922, HIS PAY AND ALLOWANCES ARE AS FOLLOWS: PAY (LIEUTENANT COMMANDER WITH OVER 15 YEARS' SERVICE) ----- $3,750.00 RENTAL ALLOWANCE ---------------------- --------------------- 1,200.00 SUBSISTENCE ALLOWANCE --------------------- ----------------- 657.00

TOTAL PAY AND ALLOWANCES ------------------------------ 5,607.00

4. UNDER EXISTING DECISIONS OF THE COMPTROLLER GENERAL FULL PAY IN THE CASE OF AN OFFICER ON THE RETIRED LIST ON JUNE 30, 1922, IS THE PAY AUTHORIZED BY THE PAY LAWS IN EFFECT ON JUNE 30, 1922, UNTIL SUCH PAY AND ALLOWANCE, PLUS THE ALLOWANCES PRESCRIBED BY THE ACT OF JUNE 10, 1922, FOR AN OFFICER OF HIS RANK AND SERVICE EQUALS OR EXCEEDS THE PAY PRESCRIBED BY THE ACT OF JUNE 10, 1922, FOR OFFICERS ON THE ACTIVE LIST WITH THE SAME RANK AND SERVICE. THE PAY AND ALLOWANCES TO WHICH LIEUTENANT COMMANDER PORTER IS ENTITLED ON AND AFTER DECEMBER 15, 1941, IS GREATER THAN THE PAY WHICH HE WAS RECEIVING PRIOR TO THAT DATE. IN VIEW OF THE FACT THAT HE IS NOW ENTITLED TO PAY BASED ON A RANK HIGHER THAN THAT HELD ON JULY 1, 1922, IT IS NOT BELIEVED THAT THE SAVINGS CLAUSE IN SECTION 17 OF THE ACT OF JUNE 10, 1922, AS AMENDED, OR THE PROVISIONS OF THE ACT OF MAY 8, 1926, WOULD ENTITLE HIM TO ACTIVE DUTY PAY COMPUTED ON THE BASIS OF SAVED PAY.

5. LIEUTENANT COMMANDER PORTER WAS ON ACTIVE DUTY IN THE TENTH NAVAL DISTRICT ( PUERTO RICO) FROM NOVEMBER 8, 1940, TO JULY 20,1941, AND HIS INQUIRY IN PARAGRAPH 5 (6) OF THE BASIC LETTER INVOLVES HIS RIGHT TO THE 10 PERCENT INCREASE PROVIDED BY THE ACT OF MAY 13, 1908, FOR FOREIGN SERVICE DURING THAT PERIOD. SECTION 15 OF THE ACT OF JUNE 10, 1922, ABOLISHED THE 10 PERCENT INCREASES PROVIDED BY THE ACT OF MAY 13, 1908, FOR FOREIGN SERVICE AND THEREFORE WHILE SERVING ON ACTIVE DUTY IN PUERTO RICO, SUCH INCREASE COULD NOT BE INCLUDED IN COMPUTATION OF HIS PAY UNDER THE 1908 ACT.

6. IT IS REQUESTED THAT THE BUREAU OF SUPPLIES AND ACCOUNTS BE ADVISED OF THE ACTION TAKEN ON THIS CASE.

IN A LETTER TO THE CHIEF OF BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 25, 1942, LIEUTENANT COMMANDER PORTER STATES:

5. IT IS MY CONTENTION THAT THE ACT OF 1922 DOES NOT AFFECT THE INDIVIDUAL CONCERNED UNTIL SUCH TIME AS HIS PAY THEREUNDER IS GREATER THAN IT WOULD BE UNDER THE ACT OF 1908, AND THAT THE ,SAVING CLAUSE" WAS INSERTED IN THE ACT FOR THAT SPECIFIC PURPOSE, AND TO INSURE THAT NO REDUCTION IN PAY WOULD RESULT TO AN INDIVIDUAL.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDES IN PART AS FOLLOWS:

* * * 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: * * * RETIRED OFFICERS * * * SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.

THE NAVY REGISTER FOR JANUARY 1, 1919, SHOWS LIEUTENANT COMMANDER PORTER AS HOLDING PERMANENT RANK OF LIEUTENANT AND TEMPORARY RANK (AS PROVIDED IN THE ACT OF JULY 1, 1918, 40 STAT. 715) OF LIEUTENANT COMMANDER. THE NAVY REGISTERS FOR THE YEARS 1920 TO 1923, INCLUSIVE, LIST THE OFFICER AS A LIEUTENANT ON THE RETIRED LIST. THUS WHEN THE ACT OF JUNE 10, 1922, BECAME EFFECTIVE HE WAS A LIEUTENANT ON THE RETIRED LIST AND THE ONLY PAY SAVED TO HIM BY SECTION 17 OF THE ACT OF JUNE 10, 1922, IS THE PAY OF A LIEUTENANT COMMANDER PURSUANT TO THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 21, 1930, 46 STAT. 793, AND IN VIEW OF THE PROVISIONS OF THE ACT OF DECEMBER 15, 1941, 55 STAT. 800, HE BECAME ENTITLED, ON AND AFTER DECEMBER 15, 1941, TO ACTIVE DUTY PAY AS A LIEUTENANT COMMANDER. AS POINTED OUT BY THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, LIEUTENANT COMMANDER PORTER WAS ON ACTIVE DUTY PRIOR TO THE ENACTMENT OF PUBLIC LAW 340 OF DECEMBER 15, 1941, AND IN VIEW OF THE SAVING CLAUSE IN SECTION 17 HE WAS RECEIVING ACTIVE DUTY BASE AND LONGEVITY PAY AS A LIEUTENANT COMPUTED UNDER THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 127, SINCE HIS PAY THUS COMPUTED WAS HIGHER THAN THE PAY HE WOULD HAVE RECEIVED HAD THE COMPUTATION BEEN MADE AT THE RATES PRESCRIBED IN THE ACT OF JUNE 10, 1922. HOWEVER, THE ONLY PURPOSE OF THE SAVING CLAUSE IN SECTION 17 WAS TO PREVENT A REDUCTION IN PAY. THE RATE OF BASE AND LONGEVITY PAY PROPOSED TO BE PAID THE OFFICER ON AND AFTER DECEMBER 15, 1941, COMPUTED AT THE RATES PRESCRIBED IN THE ACT OF JUNE 10, 1922, IS GREATER THAN ACTIVE DUTY PAY BASED ON THE RETIRED PAY HE WAS RECEIVING ON THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922. THE SAVING CLAUSE DOES NOT AUTHORIZE PAYMENT AT THE RATES SPECIFIED IN THE 1908 ACT UNLESS PAYMENT AT THE RATES PRESCRIBED IN THE 1922 ACT WOULD RESULT IN A REDUCTION IN THE RATE OF PAY AUTHORIZED FOR THE OFFICER ON JUNE 30, 1922. IN OTHER WORDS, THE SAVING CLAUSE DOES NOT SAVE TO THE OFFICER THE PAY OF A GRADE TO WHICH HE BECAME ENTITLED AFTER THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922, WHERE HIS PAY IN THE HIGHER GRADE, COMPUTED AT THE RATES SET OUT IN THE 1922 ACT, IS GREATER THAN THE PAY HE WAS RECEIVING PRIOR TO THE EFFECTIVE DATE OF THE PROMOTION. WITH RESPECT TO THE SAVING CLAUSE IN SECTION 16 OF THE ACT OF JUNE 10, 1922, RELATING TO OFFICERS ON THE ACTIVE LIST, IT WAS HELD IN 2 COMP. GEN. 57, 59, AS FOLLOWS:

* * * THE SAVING CLAUSE RELATES TO OFFICERS THEN IN THE SERVICE AND * * * THERE IS NO AUTHORITY IN ITS PROVISIONS FOR SAVING TO ANY OFFICER THE PRIOR PAY OF ANY GRADE TO WHICH HE MAY THEREAFTER BE PROMOTED IF THE PRIOR PAY OF SUCH GRADE IS GREATER THAN THAT ESTABLISHED BY THE ACT OF JUNE 10, 1922.

I CONCUR IN THE OPINIONS OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AS EXPRESSED IN HIS LETTER, SUPRA, ON BOTH OF THE QUESTIONS RAISED BY LIEUTENANT COMMANDER PORTER. ACCORDINGLY, PAY AND ALLOWANCES OF THE OFFICER AS A LIEUTENANT COMMANDER ON AND AFTER DECEMBER 15, 1941, ARE FOR COMPUTATION AT THE RATES PRESCRIBED IN THE ACT OF JUNE 10, 1922, AND HE IS NOT ENTITLED TO A 10 PERCENT INCREASE IN PAY FOR THE PERIOD NOVEMBER 8, 1940, TO JULY 20, 1941, WHEN HE SERVED IN PUERTO RICO, IN VIEW OF THE PROVISIONS OF SECTION 15 OF THE ACT OF JUNE 10, 1922.