B-16312, MAY 8, 1941, 20 COMP. GEN. 750

B-16312, MAY 8, 1941, 20 COMP. GEN. 750

PAY - LONGEVITY - NATIONAL GUARD WARRANT OFFICERS IN ACTIVE FEDERAL SERVICE A WARRANT OFFICER OF THE NATIONAL GUARD ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES PURSUANT TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MAY NOT COUNT PRIOR NATIONAL GUARD SERVICE WHILE NOT IN FEDERAL SERVICE FOR LONGEVITY PURPOSES IN COMPUTING PAY UNDER SECTION 9 OF THE ACT OF JUNE 10, 1922.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO MAJ. B. H. GRABAN, UNITED STATES ARMY, MAY 8, 1941:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM THE CHIEF OF FINANCE, YOUR LETTER OF APRIL 4, 1941, TRANSMITTING FOR DECISION WHETHER PAYMENT THEREON IS AUTHORIZED, A VOUCHER STATED FOR $57.23 IN FAVOR OF MEYER N. GOLDMAN, REPRESENTING LONGEVITY PAY AS A WARRANT OFFICER OF THE 121ST ENGINEERS, NATIONAL GUARD, FOR THE PERIOD FEBRUARY 3, TO MARCH 31, 1941.

THE VOUCHER APPEARS TO HAVE BEEN COMPUTED ON THE DIFFERENCE BETWEEN THE BASE PAY OF A WARRANT OFFICER OF THE ARMY, AS PROVIDED IN SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 13, $148 PER MONTH, AND THE PAY OF A WARRANT OFFICER INCREASED BY 20 PERCENTUM, UNDER THE SAME SECTION, AS LONGEVITY PAY BY REASON OF HAVING COMPLETED OVER 16 YEARS' SERVICE AS A WARRANT OFFICER IN THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA. THE OFFICIAL NATIONAL GUARD REGISTER, 1939, AT PAGE 278, INDICATES THAT WARRANT OFFICER GOLDMAN AFTER SERVICE AS AN ENLISTED MAN IN THE MARYLAND AND DISTRICT OF COLUMBIA NATIONAL GUARD WAS APPOINTED A WARRANT OFFICER OCTOBER 1, 1922.

THE 29TH DIVISION OF THE NATIONAL GUARD, INCLUDING THE 121ST ENGINEERS, DISTRICT OF COLUMBIA NATIONAL GUARD, OF WHICH GOLDMAN WAS A MEMBER (HEADQUARTERS AND SERVICE COMPANY), WAS ORDERED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER EXECUTIVE ORDER NO. 96, APPROVED AUGUST 27, 1940, AND THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 166, AS AMENDED.

SECTION 2 OF PUBLIC RESOLUTION NO. 96, 54 STAT. 859, PROVIDES:

ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY, SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICES TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATIONS.

SECTION 14 OF THE ACT OF JUNE 10, 1922, 37 U.S.C. 23, PROVIDES THAT WARRANT OFFICERS OF THE NATIONAL GUARD SHALL RECEIVE NOT MORE THAN FOUR THIRTIETHS OF THE MONTHLY BASE PAY OF THEIR GRADE FOR THE SATISFACTORY PERFORMANCE OF THEIR APPROPRIATE DUTIES, WHILE SECTION 109 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 3, 1924, 43 STAT. 364, 32 U.S.C. 143, PROVIDES:

UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, CAPTAINS, LIEUTENANTS, AND WARRANT OFFICERS BELONGING TO ORGANIZATIONS OF THE NATIONAL GUARD SHALL RECEIVE COMPENSATION AT THE RATE OF ONE THIRTIETH OF THE MONTHLY BASE PAY PRESCRIBED FOR THEM IN SECTIONS 3 AND 9 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, FOR EACH REGULAR DRILL OR OTHER PERIOD OF INSTRUCTION AUTHORIZED BY THE SECRETARY OF WAR, * * *

SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, 37 U.S.C. 13, PROVIDES, IN PERTINENT PART:

THAT COMMENCING JULY 1, 1922, THE MONTHLY BASE PAY OF WARRANT OFFICERS * * * OF THE ARMY AND MARINE CORPS SHALL BE AS FOLLOWS: WARRANT OFFICERS OF THE ARMY AND MARINE CORPS, $148; * * * COMMENCING JULY 1, 1922, WARRANT OFFICERS OF THE ARMY AND MARINE CORPS * * *, SHALL RECEIVE, AS A PERMANENT ADDITION TO THEIR PAY, AN INCREASE OF 5 PERCENTUM OF THEIR BASE PAY FOR EACH FOUR YEARS OF SERVICE IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT NOT TO EXCEED 25 PERCENTUM. * * *

UNDER SECTION 9 OF THE ACT OF JUNE 10, 1922, PRIOR SERVICE IN THE NATIONAL GUARD BY WARRANT OFFICERS OF THE REGULAR ARMY IS NOT SERVICE "IN ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT," AND THE ABSENCE OF SPECIFIC STATUTORY PROVISION AUTHORIZING A DIFFERENT BASIS FOR COMPUTING LONGEVITY PAY, WARRANT OFFICERS OF THE NATIONAL GUARD WHILE IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES ARE ENTITLED TO NO GREATER PAY THAN WARRANT OFFICERS OF THE REGULAR ARMY OR THE REGULAR MARINE CORPS AND SINCE THESE LATTER OFFICERS ARE NOT ENTITLED TO COUNT PRIOR SERVICE IN THE NATIONAL GUARD NOT IN FEDERAL SERVICE FOR PURPOSES OF LONGEVITY PAY, IT APPEARS TO BE OBVIOUS THAT WARRANT OFFICERS OF THE NATIONAL GUARD ALSO ARE SO LIMITED.

SECTION 3 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 37 U.S.C. 7, PROVIDES:

THAT WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT 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. SUCH OFFICERS WHENEVER ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, SHALL RECEIVE AS LONGEVITY PAY, IN ADDITION TO BASE PAY PROVIDED BUT NOT EXCEEDING THE MAXIMUM PAY PRESCRIBED BY LAW, AN INCREASE THEREOF AT THE PERCENTUM AND TIME RATES UP TO THIRTY YEARS PROVIDED IN THE TENTH PARAGRAPH OF SECTION 1. 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, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE FORCE, WHEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE, WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE PERFORMED ACTIVE DUTY UNDER RESERVE COMMISSIONS, AND WITH ONE-HALF TIME FOR ALL OTHER PERIODS DURING WHICH THEY HAVE HELD RESERVE COMMISSIONS.

INASMUCH, HOWEVER, AS THE BENEFITS OF THIS SECTION ARE SPECIFICALLY LIMITED IN APPLICATION TO OFFICERS CORRESPONDING IN GRADES TO THOSE OF COLONEL TO SECOND LIEUTENANT OF THE ARMY, IT IS CLEAR THAT SAID PROVISION IS NOT SUFFICIENT TO AUTHORIZE A WARRANT OFFICER OF THE NATIONAL GUARD TO COUNT PRIOR NATIONAL GUARD SERVICE WHILE NOT IN FEDERAL SERVICE FOR LONGEVITY PURPOSES IN COMPUTING PAY UNDER SECTION 9 OF THE ACT OF JUNE 10, 1922, SUPRA. SEE 20 COMP. GEN. 136. YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE.