B-66623, JULY 30, 1947, 27 COMP. GEN. 37

B-66623, JULY 30, 1947, 27 COMP. GEN. 37

PAY - RETIRED - ENLISTED MEN OF PHILIPPINE SCOUTS RETIRED PRIOR TO ADMINISTRATIVE INCREASE IN ACTIVE-DUTY PAY ENLISTED MEN OF THE PHILIPPINE SCOUTS RETIRED PRIOR TO JUNE 1, 1946, WHEN INCREASED RATES OF ACTIVE-DUTY PAY WERE PRESCRIBED BY THE SECRETARY OF WAR FOR PHILIPPINE SCOUTS PURSUANT TO SECTION 11 OF THE PAY READJUSTMENT ACT PROVIDING THAT RETIRED PERSONNEL SHALL HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF "PAY PROVIDED IN THIS ACT," TO HAVE THEIR RATES OF RETIRED PAY COMPUTED ON THE BASIS OF THE INCREASED RATES OF ACTIVE-DUTY PAY, EVEN THOUGH THE RATES OF PAY FOR SUCH ENLISTED MEN ARE NOT SPECIFICALLY "PROVIDED IN" SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JULY 30, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 23, 1947, AS FOLLOWS:

THE WAR DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION OF THE RATES OF RETIRED PAY TO BE PAID TO PHILIPPINE SCOUTS RETIRED PRIOR TO 1 JUNE 1946, IN VIEW OF THE INCREASE IN ACTIVE DUTY PAY PRESCRIBED BY ME FOR THE PHILIPPINE SCOUTS, EFFECTIVE 1 JUNE 1946, AS PUBLISHED IN CHANGES NO. 2, 17 JUNE 1946, TM 14-509, AND THE PROVISIONS OF SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED 16 JUNE 1942 (56 STAT. 369), REPEALING ALL LAWS AND PARTS OF LAWS AUTHORIZING ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST.

PHILIPPINE SCOUTS RETIRED ON AND AFTER 1 JUNE 1946 HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE NEWLY ESTABLISHED RATES OF ACTIVE DUTY PAY. RETIRED PAY OF PHILIPPINE SCOUTS RETIRED PRIOR TO 1 JUNE 1946 IS NOW COMPUTED ON THE BASIS OF RATES IN EFFECT AT THE TIME OF RETIREMENT, PLUS ALLOWANCES OF $10.50 FOR RATIONS, CLOTHING, QUARTERS, HEAT, AS AUTHORIZED BY WAR DEPARTMENT CIRCULAR NO. 41, 1931 ( TM 14-509). IT IS CONTEMPLATED AUTHORIZING THE COMPUTATION OF RETIRED PAY FOR THE LATTER GROUP ON THE BASIS OF THE NEWLY ESTABLISHED RATES AND DISCONTINUING THE PROVISION FOR PAYMENT OF THE ALLOWANCES, WHICH WOULD BE IN CONFORMITY WITH THE PRINCIPLE ENUNCIATED IN YOUR DECISION, 23 COMP. GEN. 330, WHEREIN IT WAS STATED THAT,"* * * IT IS WELL ESTABLISHED THAT CHANGES IN THE PAY OF A RANK FOR ACTIVE ENLISTED MEN APPLY TO THE RETIRED PAY OF RETIRED ENLISTED MEN OF THE SAME RANK. 20 COMP. GEN. 213 AND DECISIONS THEREIN CITED" , AND WITH SECTION 19 OF THE PAY READJUSTMENT ACT, SUPRA.

THIS ACTION WILL PLACE THE PAY OF THE PHILIPPINE SCOUTS RETIRED PRIOR TO 1 JUNE 1946 ON A PARITY WITH THAT OF PHILIPPINE SCOUTS RETIRED ON AND AFTER THAT DAY AND ON A COMPARABLE BASIS WITH RETIRED PERSONNEL OF THE REGULAR ARMY.

SECTIONS 11 AND 15 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 364 AND 367), PROVIDE, IN PART, AS FOLLOWS:

"SEC. 11. THE PAY AND ALLOWANCES OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS SHALL BE FIXED BY THE SECRETARY OF WAR AND SHALL NOT (EXCEED OR) BE OF OTHER CLASSES THAN THOSE NOW OR WHICH MAY HEREAFTER BE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE REGULAR ARMY. * * *

"SEC. 15. ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, * * * 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, * * *: 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 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. * * *" (ITALICS SUPPLIED.)

SECTION 11, QUOTED ABOVE, DOES NOT PROVIDE FOR PAY AND ALLOWANCES FOR PHILIPPINE SCOUTS IN SPECIFICALLY FIXED RATES, AND THE QUESTION HAS ARISEN AS TO WHETHER THAT PORTION OF SECTION 15 OF THE ACT WHICH STATES THAT RETIRED PERSONNEL SHALL HAVE THEIR RETIRED PAY "COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT" MAY BE CONSIDERED AS PROVIDING FOR PAY AND ALLOWANCES SO AS TO BRING THE ACTIVE DUTY PAY RAISES WHICH WERE FIXED BY ME, UNDER AUTHORITY OF SECTION 11, WITHIN THE PURVIEW OF SECTION 15 OF THE ACT.

YOUR DECISION IN THE PREMISES IS REQUESTED.

IN THE CASE OF MIGUEL V. MCCARL, ET AL. (1934), 291 U.S. 442, THE SUPREME COURT OF THE UNITED STATES HELD AN ENLISTED MAN OF THE PHILIPPINE SCOUTS TO BE AN "ENLISTED MAN * * * IN THE ARMY" WITHIN THE MEANING OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 10 U.S.C. 947, 980, WHICH AUTHORIZES THE RETIREMENT OF ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS, UPON VOLUNTARY APPLICATION AFTER THIRTY YEARS' SERVICE, AND PROVIDES, FOR ONE SO RETIRED, RETIRED PAY AT THE RATE OF ,SEVENTY FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF.'

UNDER THE DECISIONS OF THE ACCOUNTING OFFICERS, THE SETTLED MEANING OF THE ACT OF MARCH 2, 1907, SUPRA, IS THAT IT GIVES TO A RETIRED ENLISTED MAN RETIRED PAY BASED ON THE PAY OF THE GRADE IN WHICH HE WAS RETIRED AND THAT ANY CHANGE IN THE PAY OF ENLISTED MEN ON THE ACTIVE LIST IN A PARTICULAR GRADE APPLIES TO THE RETIRED PAY OF MEN RETIRED IN SUCH GRADE. 20 COMP. GEN. 213, 216.

IN THE ABSENCE OF A STATUTORY PROVISION EXPRESSLY EXCEPTING RETIRED ENLISTED MEN FROM RECEIVING THE BENEFITS OF A PAY LAW AUTHORIZING HIGHER RATES OF PAY FOR ENLISTED MEN GENERALLY, IT HAS BEEN THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS THAT A CHANGE IN THE RATE OF PAY OF ENLISTED MEN OF A PARTICULAR GRADE ON THE ACTIVE LIST EFFECTS A CHANGE IN THE PAY OF ENLISTED MEN ON THE RETIRED LIST WHO WERE RETIRED IN SUCH GRADE. SEE 23 COMP. GEN. 330; 20 ID. 213; 2 ID. 9; 27 COMP. DEC. 22; 26 ID. 612; 14 ID. 914; 13 ID. 759; B-32090, FEBRUARY 20, 1943.

THE FIRST PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 37 U.S.C., SUPP. V, 115 (QUOTED, IN PERTINENT PART, IN YOUR LETTER) IN SPECIFICALLY AUTHORIZING THE COMPUTATION OF RETIRED PAY "ON THE BASIS OF PAY PROVIDED IN THIS ACT," CLEARLY HAD THE EFFECT OF GIVING TO PREVIOUSLY RETIRED ENLISTED MEN OF THE REGULAR ARMY, AMONG OTHERS, THE BENEFIT OF THE NEW RATES OF PAY PROVIDED IN SUCH ACT. MOREOVER, WHEN THE RATES OF PAY OF PERSONNEL ON THE ACTIVE LIST AGAIN WERE INCREASED BY THE ACT OF JUNE 29, 1946, 60 STAT. 343, SPECIFIC PROVISION WAS MADE IN THE SECTION 5 OF SUCH ACT (60 STAT. 345), THAT "THE INCREASES IN PAY RESULTING FROM THE AMENDMENTS MADE BY THIS ACT TO THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, SHALL BE APPLICABLE TO THE * * * RETIRED * * * PAY OF ALL PERSONS WHOSE PAY IS GOVERNED BY, OR BY REFERENCE TO, THOSE SECTIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, WHICH ARE AMENDED BY THIS ACT.'

THUS, IT IS APPARENT THAT, FOR MANY YEARS, RETIRED PERSONNEL OF THE ARMED SERVICES GENERALLY HAVE HAD THEIR RETIRED PAY INCREASED EACH TIME THERE HAS BEEN AN INCREASE IN THE PAY OF PERSONNEL OF CORRESPONDING GRADES ON THE ACTIVE LIST AND THAT, IN RECENT YEARS, THERE HAS BEEN AN EXPRESS LEGISLATIVE RECOGNITION OF THE PRINCIPLE OF INCREASING THE PAY OF PERSONNEL ON THE RETIRED LIST COINCIDENTALLY WITH ANY INCREASE IN THE PAY OF PERSONNEL ON THE ACTIVE LIST OF THE ARMY, NAVY, ETC.

WHILE SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 369, REPEALED THOSE PORTIONS OF THE ACTS OF MARCH 2, 1907, SUPRA, AND JUNE 30, 1941, 55 STAT. 394, WHICH AUTHORIZED ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST, IT IS TO BE NOTED THAT THE SAID ACT OF JUNE 30, 1941, AUTHORIZING THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY AND THE PHILIPPINE SCOUTS FOR PHYSICAL DISABILITY CONTAINS A PROVISO, IN SECTION 3 THEREOF, AS FOLLOWS:

PROVIDED, THAT THE MONEY ALLOWANCES OF ENLISTED MEN OF THE PHILIPPINE SCOUTS PLACED ON THE RETIRED LIST UNDER THIS ACT SHALL BE THE SAME AS THOSE HERETOFORE OR FROM TIME TO TIME HEREAFTER PRESCRIBED BY THE SECRETARY OF WAR UNDER EXISTING LAW FOR ENLISTED MEN OF THAT ORGANIZATION RETIRED AFTER THIRTY YEARS OF SERVICE.

WHILE RATES OF PAY AND ALLOWANCES FOR ENLISTED MEN OF THE PHILIPPINE SCOUTS ARE NOT SPECIFICALLY "PROVIDED IN" THE PAY READJUSTMENT ACT OF 1942, SECTION 11 OF SUCH ACT, 56 STAT. 364 (QUOTED, IN ANOTHER PART, IN YOUR LETTER), EXPRESSLY EMPOWERS THE SECRETARY OF WAR TO FIX THE "PAY AND ALLOWANCES OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS," AND EXPRESSLY PROVIDES THAT THE PAY AND ALLOWANCES SO FIXED "SHALL NOT EXCEED OR BE OF OTHER CLASSES THAN THOSE NOW OR WHICH MAY HEREAFTER BE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE REGULAR ARMY.' THE REGULATIONS ISSUED UNDER SUCH SECTION AND NOT INCONSISTENT WITH ITS TERMS, FIXING OR CHANGING THE RATES OF PAY AND ALLOWANCES FOR ENLISTED MEN OF THE PHILIPPINE SCOUTS, HAVE THE FORCE AND EFFECT OF THE STATUTE UNDER WHICH THEY ARE MADE. 22 COMP. GEN. 895; 18 ID. 907; 15 ID. 869.

IN CONSIDERATION OF THE FOREGOING, IT IS CONCLUDED THAT THE PERTINENT STATUTORY PROVISIONS CONTEMPLATE THAT THE RATES OF PAY PRESCRIBED BY THE SECRETARY OF WAR FROM TIME TO TIME FOR ENLISTED MEN OF THE PHILIPPINE SCOUTS ON THE ACTIVE LIST SHALL FORM THE BASIS FOR COMPUTING THE RATES OF RETIRED PAY OF THE RETIRED ENLISTED MEN OF THE PHILIPPINE SCOUTS AND THAT ANY AUTHORIZED CHANGE MADE IN THE RATE OF PAY OF SUCH ENLISTED MEN OF A PARTICULAR GRADE ON THE ACTIVE LIST SHALL BE APPLIED IN COMPUTING THE RATE OF RETIRED PAY OF ENLISTED MEN OF THE PHILIPPINE SCOUTS WHO THERETOFORE WERE, OR THEREAFTER MAY BE, RETIRED IN SUCH GRADE.

ACCORDINGLY, YOUR QUESTION, AS PRESENTED IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER, IS ANSWERED IN THE AFFIRMATIVE.