B-53418, APRIL 10, 1947, 26 COMP. GEN. 767

B-53418, APRIL 10, 1947, 26 COMP. GEN. 767

PAY - RETIRED - ENLISTED MEN RETIRED UNDER ACT OF JUNE 30, 1941 - COMMISSIONED AND ENLISTED SERVICE PAY FOR SIX MONTHS PRIOR TO RETIREMENT UNDER SECTION 3 OF THE ACT OF JUNE 30, 1941, REQUIRING THE RETIRED PAY OF ARMY ENLISTED MEN RETIRED UNDER SECTION 2 OF SAID ACT FOR DISABILITY AFTER 20 YEARS' SERVICE TO BE COMPUTED ON THE AVERAGE PAY RECEIVED FOR 6 MONTHS PRIOR TO RETIREMENT, AN ENLISTED MAN WHO, DURING THE 6 MONTHS PRECEDING HIS DISABILITY RETIREMENT, HAD REENLISTED IN HIS FORMER ENLISTED STATUS PURSUANT TO THE ACT OF JULY 19, 1939, IMMEDIATELY FOLLOWING RELIEF FROM ACTIVE DUTY AS A TEMPORARY COMMISSIONED OFFICER IS ENTITLED TO RETIRED PAY COMPUTED ON THE AVERAGE PAY RECEIVED AS AN OFFICER AND AS AN ENLISTED MAN DURING SUCH 6-MONTH PERIOD.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, APRIL 10, 1947:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1946, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF MASTER SGT. SAMUEL C. MORRELL, RETIRED, R -1718553, COVERING THE DIFFERENCE BETWEEN THE RETIRED PAY RECEIVED FOR THE PERIOD AUGUST 1, 1944, TO OCTOBER 31, 1946, BASED ON THE AVERAGE PAY HE RECEIVED DURING THE PERIOD OF HIS LAST 6 MONTHS' SERVICE AS AN ENLISTED MAN AND THE RETIRED PAY HE WOULD HAVE RECEIVED IF COMPUTED ON THE AVERAGE PAY OF AN ENLISTED MAN AND A COMMISSIONED OFFICER DURING THE 6 MONTHS OF SERVICE IMMEDIATELY PRIOR TO RETIREMENT.

BY GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 1436036, DATED OCTOBER 7, 1946, THERE WAS CERTIFIED DUE SAMUEL C. MORRELL THE SUM OF $153.41, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN $150.08 PER MONTH AND $303.49 PER MONTH FOR THE MONTH OF JULY 1944, BY REASON OF HAVING SERVED AS A COMMISSIONED OFFICER WITHIN THE 6-MONTH PERIOD PRIOR TO RETIREMENT JUNE 30, 1944, AS A MASTER SERGEANT, U.S. ARMY. YOU EXPRESS DOUBT AS TO WHETHER PAYMENT OF THE CLAIM SETTLEMENT ITSELF IS SUFFICIENT FOR CONTINUED PAYMENT OF THE HIGHER AMOUNT IN THIS CASE AND WHETHER THE PRINCIPLES GOVERNING PAYMENT OF THE CLAIM SETTLEMENT IN THIS CASE WILL GOVERN SIMILAR CASES.

THE ADJUTANT GENERAL OF THE ARMY HAS MADE THE FOLLOWING REPORT IN THE CASE:

2. THE RECORDS OF THIS OFFICE SHOW THAT COLONEL MORRELL WAS RELIEVED FROM ACTIVE DUTY 10 MAY 1944, BY REASON OF PHYSICAL INCAPACITY; THAT THE CAUSE OF SAID INCAPACITY WAS NOT AN INCIDENT OF COMMISSIONED SERVICE, HAVING EXISTED PRIOR TO HIS ENTRY ON EXTENDED ACTIVE DUTY, 20 NOVEMBER 1940, AND THAT SAID INCAPACITY FIRST MANIFESTED ITSELF IN THE MILITARY SERVICE ON OR ABOUT APRIL 1940; THAT HE REENLISTED 11 MAY 1944 IN HIS FORMER ENLISTED GRADE OF MASTER SERGEANT, WITHOUT REGARD TO ANY PHYSICAL DISQUALIFICATION INCURRED, OR HAVING ITS INCEPTION, WHILE ON ACTIVE DUTY IN LINE OF DUTY; AND THAT HE WAS PLACED ON THE RETIRED ENLISTED MEN'S LIST EFFECTIVE 30 JUNE 1944, BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED 30 JUNE 1941,

3. SERGEANT MORRELL COMPLETED 27 YEARS, 8 MONTHS AND 8 DAYS OF HONORABLE SERVICE TO AND INCLUDING 30 JUNE 1944, DATE OF RETIREMENT.

IT APPEARS THAT FOLLOWING HIS RELEASE FROM ACTIVE DUTY ON MAY 10, 1944, AS A COLONEL, AUS, BY REASON OF PHYSICAL INCAPACITY, AFTER HAVING SERVED 3 1/2 YEARS AS A COMMISSIONED OFFICER, MASTER SERGEANT MORRELL WAS REENLISTED THE FOLLOWING DAY PURSUANT TO THE ACT OF JULY 14, 1939, 53 STAT. 1001, WHICH PROVIDES AS FOLLOWS:

THAT HEREAFTER ANY WARRANT OFFICER OR ENLISTED MAN OF THE REGULAR ARMY WHO SHALL SERVE ON ACTIVE DUTY AS A RESERVE OFFICER OF THE ARMY OF THE UNITED STATES OR WHO SHALL BE DISCHARGED TO ACCEPT A COMMISSION IN THE ARMY OF THE UNITED STATES AND WHOSE ACTIVE SERVICE AS A COMMISSIONED OFFICER SHALL TERMINATE HONORABLY, SHALL BE ENTITLED, WITHOUT REGARD TO ANY PHYSICAL DISQUALIFICATION INCURRED, OR HAVING ITS INCEPTION, WHILE ON ACTIVE DUTY IN LINE OF DUTY, TO REAPPOINTMENT AS WARRANT OFFICER OR TO REENLISTMENT IN THE GRADE HELD PRIOR TO SUCH COMMISSIONED SERVICE, WITHOUT LOSS OF SERVICE OR SENIORITY AND WITHOUT REGARD TO WHETHER A VACANCY EXISTS IN THE GRADE OF WARRANT OFFICER OR IN THE APPROPRIATE ENLISTED GRADE: PROVIDED, THAT APPLICATION FOR REAPPOINTMENT OR REENLISTMENT SHALL BE MADE WITHIN SIX MONTHS AFTER THE TERMINATION OF SUCH COMMISSIONED SERVICE IN EACH CASE: PROVIDED FURTHER, THAT WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY SHALL BE ENTITLED TO COUNT ACTIVE COMMISSIONED SERVICE IN THE ARMY OF THE UNITED STATES AS WARRANT OR ENLISTED SERVICE FOR ALL PURPOSES.

HAVING BEEN REENLISTED DESPITE HIS PHYSICAL CONDITION, AS AUTHORIZED BY SUCH ACT, MASTER SERGEANT MORRELL WAS RETIRED 1 MONTH AND 20 DAYS LATER FOR PHYSICAL DISABILITY PURSUANT TO THE ACT OF JUNE 30, 1941, 55 STAT. 394, 395, WHICH PROVIDES IN PART AS FOLLOWS:

SEC. 2. AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECAME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST.

SEC. 3. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT

SEC. 5. ALL PERIODS OF SERVICE WHICH ARE NOW COUNTED UNDER PROVISIONS OF EXISTING LAW IN COMPUTING THE TIME NECESSARY TO ENABLE AN ENLISTED MAN TO RETIRE UPON COMPLETION OF THIRTY YEARS OF SERVICE SHALL BE CREDITED IN THE COMPUTATION OF THE THIRTY YEARS OF SERVICE SHALL BE CREDITED IN THE COMPUTATION OF THE TWENTY YEARS OF SERVICE NECESSARY TO CONFER ELIGIBILITY FOR RETIREMENT HEREUNDER.

WHILE THE STATUTE DEALS WITH THE RETIREMENT OF ENLISTED MEN, THE SAID SECTION 3 NEITHER EXPRESSLY NOR BY NECESSARY IMPLICATION LIMITS THE COMPUTATION OF THE RETIRED PAY TO PAY PREVIOUSLY RECEIVED AS AN ENLISTED MAN. IN THAT RESPECT THE PROVISION IS IN MARKED CONTRAST WITH THE SIMILAR PROVISION CONTAINED IN SECTION 4 OF THE SUBSEQUENTLY ENACTED ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, 59 STAT. 538, 539, AUTHORIZING THE RETIREMENT OF ANY ENLISTED MAN OF THE REGULAR ARMY AFTER 20 YEARS' SERVICE, WHICH SPECIFICALLY PROVIDES FOR THE COMPUTATION OF RETIRED PAY ON THE BASIS OF "THE AVERAGE ANNUAL ENLISTED PAY" HE WAS RECEIVING FOR THE 6 MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT. NO SUCH LIMITATION IS CONTAINED IN THE SAID 1941 ACT AUTHORIZING RETIREMENT FOR PHYSICAL DISABILITY AND NOTHING IS FOUND IN THE LEGISLATIVE HISTORY OF THE LATTER ACT SHOWING THAT ANY SUCH LIMITATION WAS INTENDED. THE LEGISLATIVE HISTORY SHOWS THAT THE "AVERAGE" PROVISION WAS ADOPTED TO GUARD AGAINST THE ABUSE OF PROMOTING ENLISTED MEN IMMEDIATELY BEFORE RETIREMENT TO INCREASE THEIR RETIRED PAY, BUT THAT PROVIDES NO BASIS TO DISREGARD SUCH EXPRESSLY PRESCRIBED STATUTORY METHOD OF COMPUTATION IN CASES SUCH AS THE PRESENT ONE WHERE IT WORKS TO THE ADVANTAGE OF THE ENLISTED MAN. ALTHOUGH THE FRAMERS OF THE STATUTE MAY NOT HAVE PARTICULARLY VISUALIZED THE CASE OF AN ENLISTED MAN SERVING AS A COMMISSIONED OFFICER DURING A PART OF THE 6-MONTHS' PERIOD PRECEDING RETIREMENT (CF. CROOKS V. HARRELSON, 282 U.S. 55), IT CANNOT BE ATTRIBUTED TO THE CONGRESS THAT, IN ENACTING THE STATUTE, IT WAS UNMINDFUL OF THE THEN RECENTLY ENACTED 1939 STATUTE, SUPRA, GRANTING ENLISTED MEN OF THE REGULAR ARMY THE RIGHT TO REENLIST, WITHOUT REGARD TO PHYSICAL DISQUALIFICATION, FOLLOWING SERVICE AS A COMMISSIONED OFFICER, AND PROVIDING THAT THEIR COMMISSIONED SERVICE COULD BE COUNTED AS ENLISTED SERVICE FOR ALL PURPOSES. READING THE TWO STATUTES TOGETHER, AND CONSIDERING, INTER ALIA, THAT SUCH COMMISSIONED SERVICE WAS TO BE COUNTED TOWARD RETIREMENT UNDER THE 1941 STATUTE, THERE APPEARS NO SUFFICIENT BASIS TO HOLD AS A MATTER OF LAW THAT, NOTWITHSTANDING THE UNQUALIFIED LANGUAGE USED IN THE LATTER STATUTE, THE CONGRESS INTENDED NEVERTHELESS TO EXCLUDE PAY RECEIVED FOR SUCH COMMISSIONED SERVICE DURING THE STIPULATED 6-MONTHS' PERIOD PRIOR TO RETIREMENT IN THE COMPUTATION OF THE AVERAGE PAY RECEIVED FOR SUCH PERIOD.

SECTION 3 OF THE ACT OF JUNE 30, 1941, SUPRA, SPECIFICALLY PROVIDES WITHOUT QUALIFICATION THAT WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE ACT "HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR 6 MONTHS PRIOR TO HIS RETIREMENT.' ACCORDINGLY, IN THE CASE OF MASTER SERGEANT MORRELL, AND IN SIMILAR CASES, RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF THE AVERAGE PAY PROPERLY RECEIVED IN THE MILITARY SERVICE FOR SUCH 6 MONTHS' SERVICE INCLUDING IN THE COMPUTATION PAY RECEIVED AS A COMMISSIONED OFFICER AND AS AN ENLISTED MAN. PAYMENT ON THE VOUCHER RETURNED HEREWITH IS AUTHORIZED IF OTHERWISE CORRECT.