B-28976, OCTOBER 14, 1942, 22 COMP. GEN. 344

B-28976, OCTOBER 14, 1942, 22 COMP. GEN. 344

PAY - RETIRED ENLISTED MEN -EFFECT OF SAVING PROVISIONS OF PAY READJUSTMENT ACT OF 1942 THE WORD "COMPENSATION" AS USED IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, WHICH SAVES A PERSON, ACTIVE OR RETIRED, COVERED BY THE ACT FROM ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH ENTITLED UPON THE EFFECTIVE DATE OF THE ACT, MEANS THE TOTAL OF PAY AND ALLOWANCES RECEIVED BY SUCH PERSON. THE PROVISION IN SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, SAVING PERSONS, ACTIVE OR RETIRED, COVERED BY THE ACT FROM ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH ENTITLED ON THE EFFECTIVE DATE OF THE ACT, SAVES TO PREVIOUSLY RETIRED ENLISTED MEN ONLY THE TOTAL RETIRED PAYMENT THERETOFORE RECEIVED, WHETHER IT WAS PAY ALONE OR CONSISTED OF PAY PLUS COMMUTED ALLOWANCES, AND WHERE THE RETIRED PAY COMPUTED ON PAY PRESCRIBED BY THE SAID 1942 ACT IS GREATER THAN THE TOTAL PAYMENT (CONSISTING OF PAY AND COMMUTED ALLOWANCES) THERETOFORE RECEIVED, THE MAN MAY NOT CONTINUE TO RECEIVE THE COMMUTED ALLOWANCES IN ADDITION TO THE GREATER PAY.

DECISION BY ASSISTANT COMPTROLLER GENERAL ELLIOTT, OCTOBER 14, 1942:

THERE HAS BEEN SUBMITTED FOR DECISION, IN CONNECTION WITH A PENDING CLAIM, A QUESTION AS TO THE PROPER CONSTRUCTION OF THE SAVING CLAUSE APPEARING IN THE ACT OF JUNE 16, 1942, 56 STAT. 359, PUBLIC LAW 607, PAY READJUSTMENT ACT OF 1942, INSOFAR AS IT RELATES TO THE CONTINUED PAYMENT TO A RETIRED ENLISTED MAN OF THE ALLOWANCES PROVIDED FOR IN THE ACT OF MARCH 2, 1907, 34 STAT. 1217, NOTWITHSTANDING THE FACT HE IS BEING PAID RETIRED PAY UNDER THE ACT OF JUNE 16, 1942, FROM JUNE 1, 1942.

THE ACT OF 1907 (10 U.S.C. 980) PROVIDES THAT ENLISTED MEN ON THE RETIRED LIST SHALL RECEIVE---

* * * SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT * * *.

SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, INCREASED THE PAY OF ENLISTED MEN OF ALL GRADES AS SHOWN BELOW:

* * * *(CHART OMITTED) * * * *

ENLISTED MEN WERE ENTITLED TO A LONGEVITY INCREASE OF PAY OF 10 PERCENT FOR THE FIRST FOUR YEARS OF SERVICE AND 5 PERCENT FOR EACH FOUR YEARS THEREAFTER TO A TOTAL OF 25 PERCENT, 37 U.S.C. 13A AND 15. SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES:

EVERY ENLISTED MAN PAID UNDER THE PROVISIONS OF THIS SECTION SHALL RECEIVE AN INCREASE OF 5 PERCENTUM OF THE BASE PAY OF HIS GRADE FOR EACH THREE YEARS OF SERVICE UP TO THIRTY YEARS. SUCH SERVICE SHALL BE ACTIVE FEDERAL SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT OR RESERVE COMPONENTS THEREOF; SERVICE IN THE ACTIVE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA; AND SERVICE IN THE ENLISTED RESERVE CORPS OF THE ARMY, THE NAVAL RESERVE, THE MARINE CORPS RESERVE, AND THE COAST GUARD RESERVE. THE PRIOR LAWS PERMITTED COUNTING ACTIVE SERVICE BY NAVY OR COAST GUARD ENLISTED MEN FOR ACTIVE SERVICE IN EITHER OF THOSE SERVICES AND BY ENLISTED MEN OF THE ARMY OR MARINE CORPS FOR ENLISTED SERVICE IN EITHER OF THOSE SERVICES.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES:

ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER 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 OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO REDUCE THE PRESENT PAY OF OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN NOW ON THE RETIRED LIST OR DRAWING RETAINER PAY, OR PERSONNEL IN AN EQUIVALENT STATUS IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT. * * *

SECTION 19 OF THE ACT, 56 STAT. 369, IS, IN PART, AS FOLLOWS:

NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT: PROVIDED, HOWEVER, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO DEPRIVE ANY ENLISTED MAN TRANSFERRED TO THE FLEET RESERVE ON OR PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, OR TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY FOR PHYSICAL DISABILITY, OF ANY BENEFITS, INCLUDING PAY, ALLOWANCES, OR COMPENSATION, WHICH HE WOULD BE ENTITLED TO RECEIVE UPON THE COMPLETION OF THIRTY YEARS UNDER LAWS IN FORCE ON THE DATE OF ENACTMENT OF THIS ACT.

* * * THOSE PORTIONS OF THE ACT OF MARCH 2, 1907 (34 STAT. 1217), AND OF THE ACT OF JUNE 30, 1941 ( PUBLIC LAW 140, SEVENTY-SEVENTH CONGRESS) (55 STAT. 395) WHICH AUTHORIZE ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST, AND ALL OTHER LAWS AND PARTS OF LAWS WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THIS ACT, ARE HEREBY REPEALED: * * *

IT IS TO BE NOTED THAT BOTH SAVING CLAUSES APPEARING IN THE ACT APPLY TO RETIRED PERSONNEL. THE ONE CONTAINED IN SECTION 15 RELATES SPECIFICALLY TO PAY AND FOLLOWS THE USUAL FORM OF SAVING CLAUSES IN ACTS RELATING TO THE PAY OF THE ARMED SERVICES AND THE ONE IN SECTION 19, APPLICABLE TO ALL PERSONS ACTIVE AND RETIRED INCLUDED WITHIN THE ACT, SAVES THEM FROM "ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT.'

THE ARGUMENT HAS BEEN ADVANCED THAT THIS APPLIES THE SAVING TO EACH OF THE ITEMS SEPARATELY, THAT IT SAVES A PERSON'S OLD PAY IF HIGHER, AND THAT, IF NOT, HE TAKES THE NEW PAY AND, IN ADDITION THERETO, ANY AND ALL ALLOWANCES AT THE OLD RATES IF NOT CONTINUED BY OR INCREASED IN THE NEW ACT. NO ARGUMENT HAS BEEN SUBMITTED AS TO THE FIELD OF OPERATION OF THE WORD "COMPENSATION.'

IN THE CASE OF UNITED STATES V. LANDERS, 92 U.S. 77, THE COURT STATED:

* * * UNDER THE TERM "ALLOWANCES" EVERYTHING WAS EMBRACED WHICH COULD BE RECOVERED FROM THE GOVERNMENT BY THE SOLDIER IN CONSIDERATION OF HIS ENLISTMENT AND SERVICES, EXCEPT THE STIPULATED MONTHLY COMPENSATION DESIGNATED AS PAY. * * *

IN SHERBURNE V. UNITED STATES, 16 C.1CLS. 491, AT PAGE 496, THE COURT STATED:

PAY IS A FIXED AND DIRECT AMOUNT GIVEN BY LAW TO PERSONS IN THE MILITARY SERVICE, IN CONSIDERATION OF AND AS COMPENSATION FOR THEIR PERSONAL SERVICE. ALLOWANCES, AS THEY ARE NOW CALLED, OR EMOLUMENTS, AS THEY WERE FORMERLY TERMED, ARE INDIRECT OR CONTINGENT REMUNERATION, WHICH MAY OR MAY NOT BE EARNED, AND WHICH IS SOMETIMES IN THE NATURE OF COMPENSATION, AND SOMETIMES IN THE NATURE OF REIMBURSEMENT. BOTH PAY AND ALLOWANCES ARE COMPENSATION FOR SERVICES WHILE IN SERVICE, AND THE SYSTEM OF MAKING A PORTION OF THE COMPENSATION CONTINGENT WAS AT THE TIME OF THE PASSAGE OF THE ACT 1870 COMMON TO ALL ARMIES. ( SCOTT'S MILITARY DICTIONARY; ART., ALLOWANCES.)

WITH RESPECT SPECIFICALLY TO ENLISTED MEN ON THE RETIRED LIST, IN VIEW OF THE REPEAL OF THE LAW FOR THE PAYMENT OF THE COMMUTED VALUE OF RATIONS, CLOTHING, QUARTERS, FUEL AND LIGHT, A SAVING CLAUSE AS TO PAY, ALONE, WOULD NOT HAVE BEEN ADEQUATE. SO, ALSO, AS TO PERSONS ON THE ACTIVE LIST AND IN RECEIPT OF ALLOWANCES, IT WAS NECESSARY TO SAVE THEIR RIGHTS TO ALLOWANCES WHICH ENTERED INTO THEIR TOTAL COMPENSATION. NO ITEM PAYABLE TO PERSONS EITHER ON THE ACTIVE OR RETIRED LIST IS COLLOQUIALLY, TECHNICALLY, OR USUALLY REFERRED TO AS "COMPENSATION," AND THAT TERM APPLIES TO THE TOTAL OF PAY AND ALLOWANCES RECEIVED BY SUCH PERSON. IT IS POSSIBLE, IN VIEW OF THE FACT THAT PERSONS ON THE ACTIVE OR RETIRED LIST OF THE NATIONAL GUARD AND OF THE RESERVE COMPONENTS ARE INCLUDED IN THE SAVING CLAUSE, SOME PORTION OF THE PAYMENTS ACCRUING TO THEM BY REASON OF THEIR STATUS IN THOSE COMPONENTS MAY BE REFERRED TO AS "COMPENSATION" BUT NONE NOW COMES TO MIND. BUT BY REASON OF THE LANGUAGE AND FORM OF EXPRESSION, IT HAS BEEN ARGUED, FOR EXAMPLE, THAT A MASTER SERGEANT, RETIRED AFTER 30 YEARS OF SERVICE, WHO PRIOR TO JUNE 1, 1942, WAS ENTITLED TO RECEIVE A TOTAL OF $133.875 PER MONTH (THREE-FOURTHS OF $126 INCREASED BY 25 PERCENT, OR $118.125 PLUS $15.75, THE COMMUTED VALUE OF RATIONS, CLOTHING, QUARTERS, FUEL AND LIGHT) IS ENTITLED UNDER THIS ACT TO THE NEW PAY OF $155.25 (THREE-FOURTHS OF BASE PAY OF $138 INCREASED BY 50 PERCENT, $69, OR $207) AND, ALSO, TO $15.75 THE COMMUTED ALLOWANCES THERETOFORE RECEIVED BY HIM. THAT IS, ALTHOUGH THE INCREASE IN THE TOTAL PAYMENTS OVER THE RETIRED PAY AND ALLOWANCES HE THERETOFORE RECEIVED WOULD BE NEARLY 12 PERCENT, IT IS ARGUED THE CONGRESS INTENDED HIM TO HAVE THAT INCREASE AND, ALSO, TO RETAIN THE OLD COMMUTED ALLOWANCES, MAKING THE PAYMENT TO HIM $171 PER MONTH OR AN INCREASE OF OVER 23 PERCENT. OBVIOUSLY, AN ENLISTED MAN OF THE SAME GRADE AND LENGTH OF SERVICE RETIRED AFTER JUNE 1, 1942, WOULD NOT RECEIVE THIS AMOUNT OF RETIRED COMPENSATION, HE WOULD RECEIVE $155.25. THE BASIS ON WHICH IT COULD BE ASSUMED THAT THE CONGRESS INTENDED TO MAKE SO MUCH MORE GENEROUS PROVISION FOR ENLISTED MEN RETIRED PRIOR TO JUNE 1, 1942, THAN FOR ENLISTED MEN RETIRED AFTER THAT DATE IS DIFFICULT TO UNDERSTAND. THE ARGUMENT ADVANCED APPARENTLY RESTS ENTIRELY ON THE LANGUAGE USED BUT OVERLOOKS THE FACT THAT THE USE OF THE WORD "ALLOWANCES" WAS TO ASSURE TO ENLISTED MEN RETIRED PRIOR TO JUNE 1, 1942, THAT THE PAYMENT TO THEM UNDER THE NEW ACT SHOULD NOT BE LESS THAN THE TOTAL PAYMENT (INCLUSIVE OF RETIRED PAY AND THEIR COMMUTED ALLOWANCES) THERETOFORE RECEIVED BY THEM.

ACCORDINGLY, I AM CONSTRAINED TO HOLD THAT THE SAVING CLAUSE IN SECTION 19 WAS INTENDED TO SAVE THE TOTAL OF THE PAYMENT THERETOFORE RECEIVED, WHETHER IT WAS PAY ALONE OR WAS MADE UP OF PAY AND ALLOWANCES IN MONEY--- THAT IS, THE "COMPENSATION" WHICH WAS BEING RECEIVED BY THE INDIVIDUAL ON MAY 31, 1942. SETTLEMENT OF ACCOUNTS AND CLAIMS WILL BE MADE ON THAT BASIS.