B-27256, JULY 14, 1942, 22 COMP. GEN. 33

B-27256, JULY 14, 1942, 22 COMP. GEN. 33

PAY - RESERVE OFFICERS - INACTIVE COMMISSIONED SERVICE FOR PAY PERIOD ADVANCEMENT PURPOSES A RESERVE OFFICER APPOINTED SUBSEQUENT TO JULY 1, 1922, MAY NOT, UNDER THE PAY READJUSTMENT ACT OF 1942, COUNT INACTIVE COMMISSIONED SERVICE FOR THE PURPOSE OF ADVANCEMENT IN PAY PERIOD.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COL. W. M. DIXON, U.S. ARMY, JULY 14, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 30, 1942, TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED A VOUCHER STATED FOR $78.18 IN FAVOR OF CAPT. J. DEAN KITCHEN, FINANCE RESERVE, REPRESENTING DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF THE THIRD AND FOURTH PAY PERIODS FOR JUNE 1942, PROVIDED BY THE PAY READJUSTMENT ACT OF 1942, PUBLIC LAW 607, APPROVED JUNE 16, 1942, 56 STAT. 359.

IT APPEARS FROM THE RECORD SUBMITTED WITH THE VOUCHER THAT THIS RESERVE OFFICER ACCEPTED APPOINTMENT AS A FIRST LIEUTENANT, FINANCE RESERVE, IN THE OFFICERS RESERVE CORPS ON JUNE 23, 1924, AND WHILE NOT SPECIFICALLY STATED, IT WILL BE ASSUMED THAT HIS SERVICE IN THE RESERVES HAS BEEN CONTINUOUS SINCE THAT TIME AND HE HAD THUS COMPLETED MORE THAN 17 YEARS AS A RESERVE OFFICER ON MAY 31, 1942, AND ON JUNE 22, 1942, HAD COMPLETED 18 YEARS OF SERVICE. IT FURTHER APPEARS THAT BY PARAGRAPH 8 OF SPECIAL ORDERS 194, DATED HEADQUARTERS THIRD CORPS AREA, U.S. ARMY, AUGUST 9, 1940, CAPT. KITCHEN WAS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY EFFECTIVE AUGUST 20, 1940, AND THAT ASIDE FROM SHORT PERIODS OF ACTIVE DUTY TRAINING OF APPROXIMATELY 15 DAYS EACH IN THE YEARS 1925, 1927, 1928, 1929, 1931, 1933, AND 1934, HAS HAD NO OTHER ACTIVE MILITARY SERVICE AS A COMMISSIONED OFFICER. HAVING PRESUMABLY HELD A COMMISSION IN THE OFFICERS RESERVE CORPS FOR MORE THAN 17 YEARS, THE CLAIM FOR FOURTH PERIOD PAY AND ALLOWANCES AND LONGEVITY FOR 18 YEARS IS PREMISED ON THE FIRST PARAGRAPH OF SECTION 14 OF THE ACT OF JUNE 16, 1942, AND OTHER PROVISIONS OF THAT ACT HEREINAFTER REFERRED TO.

PERTINENT PROVISIONS OF THE ACT OF JUNE 16, 1942, ARE AS FOLLOWS:

SEC. 3. WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE OFFICERS, ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, THOSE SERVING IN GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT OF THE ARMY SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY, UNLESS ENTITLED TO THE PAY OF A HIGHER PERIOD UNDER THE PROVISIONS OF SECTION 14 OF THIS ACT. SUCH OFFICERS WHENEVER ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, SHALL RECEIVE AS LONGEVITY PAY, IN ADDITION TO BASE PAY, AN INCREASE THEREOF AT THE PERCENTUM AND TIME RATES UP TO THIRTY YEARS PROVIDED IN SECTION 1 OF THIS ACT. IN COMPUTING THE INCREASE OF PAY FOR EACH PERIOD OF THREE YEARS' SERVICE, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, OR IN THE OFFICERS RESERVE CORPS, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE, NAVAL RESERVE, MARINE CORPS RESERVE FORCE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, WHEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE.

SEC. 14. OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES, SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY, NAVY, MARINE CORPS, COAST GUARD, OR PUBLIC HEALTH SERVICE.

SEC. 19. * * *

THE PROVISIONS OF THIS ACT SHALL BECOME EFFECTIVE AS OF JUNE 1, 1942.

(SEC. 1.) THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO MAJORS OF THE ARMY, LIEUTENANT COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH PERIOD; TO CAPTAINS OF THE ARMY, LIEUTENANTS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE.

THE PAY OF THE THIRD PERIOD SHALL BE PAID TO CAPTAINS OF THE ARMY, LIEUTENANTS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO ARE NOT ENTITLED TO THE PAY OF THE FOURTH PERIOD; TO FIRST LIEUTENANTS OF THE ARMY, LIEUTENANTS (JUNIOR GRADE) OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, WHO HAVE COMPLETED TEN YEARS' SERVICE.

EVERY OFFICER PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS PERIOD FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS.

FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT AND SERVICE AUTHORIZED IN SECTION 2 (B) OF THE ACT OF JANUARY 19, 1942 ( PUBLIC LAW 402, SEVENTY SEVENTH CONGRESS). 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 PAY, AND SERVICE AS A CONTRACT SURGEON SERVING FULL TIME; AND ALSO 75 PERCENTUM OF ALL OTHER PERIODS OF TIME DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF THE ORGANIZED MILITIA BETWEEN JANUARY 21, 1903, AND JULY 1, 1916, OR OF THE NATIONAL GUARD, THE NAVAL MILITIA, OR THE NATIONAL NAVAL VOLUNTEERS SINCE JUNE 3, 1916, SHALL BE INCLUDED IN THE COMPUTATION. LONGEVITY PAY FOR OFFICERS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID SERVICES WHICH IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES UNDER THE PROVISIONS OF THIS ACT OR AS MAY OTHERWISE BE PROVIDED BY LAW. ( ITALICS SUPPLIED.)

EXCEPT FOR THE INCLUSION AT THE END OF THE FIRST SENTENCE OF THE FIRST PARAGRAPH OF SECTION 3 OF THE ACT OF JUNE 16, 1942, OF THE PHRASE "UNLESS ENTITLED TO THE PAY OF A HIGHER PERIOD UNDER THE PROVISIONS OF SECTION 14 OF THIS ACT" AND OMISSION IN SECTION 3 OF THE PROVISION FOR ONE-HALF TIME FOR LONGEVITY CREDIT, THE FIRST PARAGRAPH OF SECTION 3 OF SAID ACT DOES NOT DIFFER FROM THE LANGUAGE OF SECTION 3 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, 37 U.S.C. 7. CONSTRUING THE PROVISION THAT OFFICERS OF THE NATIONAL GUARD WHEN ON ACTIVE DUTY "SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE" (SECTION 38 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 19, 1935, 49 STAT. 391, 32 U.S.C. 81C) IT WAS HELD THAT SUCH OFFICER WOULD NOT BE ENTITLED TO ANY OF THE BENEFITS OF SECTION 3 OF THE ACT OF JUNE 10, 1922, AS AMENDED, WITH REFERENCE TO LONGEVITY FOR INACTIVE SERVICE UNDER COMMISSIONS IN THE RESERVE FORCES, THEREIN SPECIFICALLY PROVIDED---

* * * BUT WOULD BE ENTITLED TO THE SAME PAY AS PROVIDED FOR OFFICERS OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE AS FIXED BY SECTION 1 OF THAT ACT, AND IN MOST, IF NOT ALL, CASES SUCH A HOLDING WOULD BE TO THE DISADVANTAGE OF THE NATIONAL GUARD OFFICER, FOR CLEARLY HE WOULD NOT BE ENTITLED TO THE SAME PAY AS A REGULAR OFFICER OF THE SAME GRADE AND LENGTH OF SERVICE AND, ALSO, ENTITLED TO BENEFITS AS TO COUNTING SERVICE AS CONTAINED IN SECTION 3 OF THE ACT, BECAUSE A REGULAR ARMY OFFICER WOULD NOT BE ENTITLED TO COUNT SUCH SERVICE. THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF SERVICE WOULD NECESSARILY BE THE SAME AND NOT SOME OTHER PAY. * * * SEE 20 COMP. GEN. 469, 474.

BRIEFLY, THE STATUTE PROVIDES, IN SECTION 3, PAY PERIODS FOR GRADES AND THE COUNTING OF A SPECIAL CLASS OF INACTIVE SERVICE FOR LONGEVITY INCREASE IN PAY FOR RESERVE OFFICERS, WHILE SECTION 1 PROVIDES PAY PERIODS AND A DIFFERENT CLASS OF SERVICE FOR LONGEVITY INCREASE IN PAY FOR OFFICERS OF THE REGULAR SERVICE. SECTIONS 3 AND 14 PROVIDE THAT RESERVE OFFICERS MAY BE PAID THE SAME PAY AND ALLOWANCES AUTHORIZED FOR OFFICERS OF THE REGULAR SERVICE UNDER SECTION 1. WHEN THE CONGRESS SPECIFIED IN SECTION 1 THAT OFFICERS APPOINTED ON OR AFTER JULY 1, 1922, SHALL ONLY COUNT ACTIVE COMMISSIONED SERVICE, IT MUST BE TAKEN TO HAVE MEANT ACTIVE COMMISSIONED SERVICE AND NOT SOMETHING ELSE THAT FOR OTHER PURPOSES WAS JUST AS GOOD, AND IF IT BE ADMITTED THAT SUCH OFFICERS ARE SO LIMITED, IT IS DIFFICULT TO PERCEIVE BY WHAT PROCESS INACTIVE COMMISSIONED SERVICE OF RESERVE OFFICERS AUTHORIZED FOR A SPECIFIC PURPOSE MAY BE COMPARED THEREWITH FOR THE PURPOSE OF SECTION 14.

THE PROVISION CONTAINED IN THE LAST PART OF THE FIRST SENTENCE OF THE FIRST PARAGRAPH OF SECTION 3 OF THE ACT OF JUNE 16, 1942, AUTHORIZING A HIGHER PAY PERIOD THAN THE PAY PERIOD BASED UPON THE GRADE ALONE OF THE RESERVE OFFICER, AS AUTHORIZED IN ITS ANTECEDENT, OBVIOUSLY CAN CONFER UPON SUCH RESERVE OFFICER NO MORE THAN WOULD ACCRUE TO AN OFFICER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE AS LIMITED BY SECTION 1 OF THE ACT. UNDER SECTION 1 OF THE ACT OF JUNE 16, 1942, THE PAY AND ALLOWANCES OF A CAPTAIN IN THE REGULAR ARMY APPOINTED ON OR AFTER JULY 1, 1922, WITH ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL COMMISSION EQUAL TO THE ACTIVE COMMISSIONED SERVICE OF CAPTAIN KITCHEN, WOULD BE PROPERLY COMPUTED ON THOSE OF THE THIRD PERIOD WITH LONGEVITY PAY BASED UPON LESS THAN THREE YEARS' COMMISSIONED SERVICE.

UNDER THE FACTS AND LAW INVOLVED IT APPEARS CLEAR THAT CAPT. KITCHEN, WHO IS ENTITLED TO THIRD PERIOD PAY AND INCREASE FOR LENGTH OF SERVICE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 16, 1942, IS RECEIVING GREATER BENEFITS THAN WOULD ACCRUE UNDER SECTION 1 TO AN OFFICER OF THE REGULAR SERVICE WITH THE SAME LENGTH OF IDENTICAL SERVICE, THUS NEGATIVING OPERATION OF THAT SECTION AS EXTENDED TO HIM BY SECTION 14. YOU ARE INFORMED THAT PAYMENT OF VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.