B-73090, JULY 15, 1948, 28 COMP. GEN. 22

B-73090, JULY 15, 1948, 28 COMP. GEN. 22

PAY - RETIRED -ARMY NURSE CORPS OFFICER SERVING IN HIGHER TEMPORARY RANK - SERVICE PRIOR TO NOV. 12, 1918 AN ARMY NURSE WHO HAD SERVED ON ACTIVE DUTY PRIOR TO NOVEMBER 12, 1918, AND HAS COMPLETED MORE THAN 29 YEARS' SERVICE IS NOT ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, RELATING TO THE YEARS' SERVICE; NEITHER DOES THE PROVISO IN SUCH SECTON, AUTHORIZING THE COMPUTATION OF RETIRED PAY AT 75 PERCENT OF THE ACTIVE-DUTY ANNUAL PAY OF OFFICERS APPLICATION TO OFFICERS RETIRED UNDER PROVISIONS OF LAW OTHER THAN THOSE CONTAINED IN SAID SECTION AS AMENDED. A CHIEF OF THE ARMY NURSE CORPS RETIRED WITH THE TEMPORARY RANK OF COLONEL WITH THE RETIRED PAY BASED UPON SUCH TEMPORARY RANK IN ACCORDANCE WITH SECTION 108B OF THE ARMY-NAVY NURSES ACT OF 1947 IS NOT ENTITLED TO HAVE HER RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF HER ACTIVE- DUTY PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THE PROVISIONS OF WHICH ARE APPLICABLE ONLY TO THE PAY OF AN OFFICER'S PERMANENT GRADE OR RANK AND NOT THAT OF THE TEMPORARY GRADE OR RANK.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, JULY 15, 1948:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF JANUARY 22, 1948, YOUR LETTER OF JANUARY 8, 1948, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER SUBMITTED THEREWITH IN FAVOR OF COLONEL FLORENCE A. BLANCHFIELD, U.S. ARMY, RETIRED, SERIAL NO. N-1, IN THE AMOUNT OF $39.87 COVERING ADJUSTMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 1 THROUGH DECEMBER 31, 1947. SUCH PROPOSED ADJUSTMENT IN RETIRED PAY APPARENTLY IS BASED ON THE PROPOSITION THAT SINCE COLONEL BLANCHFIELD (WHO HAS COMPLETED OVER 29 BUT LESS THAN 30 YEARS' SERVICE) SERVED ON ACTIVE DUTY AS A RESERVE NURSE, ARMY NURSE CORPS, PRIOR TO NOVEMBER 12, 1918, SHE IS ENTITLED UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED (10 U.S.C.A. 97LB), TO RETIRED PAY OF 75 PER CENTUM--- RATHER THAN 72 1/2 PER CENTUM NOW RECEIVED--- OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 27 BUT LESS THAN 30 YEARS' SERVICE.

ATTACHED TO THE VOUCHER IS A MILITARY HISTORY WHICH INDICATES THAT THE OFFICER HAD SERVICE AS FOLLOWS: 21 JULY 1917 ( RES NURSE, ANC) ( SEPARATED 13 MAY 1919) 6 JAN 1920 ( NURSE, ANC) 7 APR 1920 ( CHIEF NURSE, ANC) 1 FEB 1939 ( ASST SUPER, ANC) 13 MAR 1942 ( ASST SUPER, ANC) 1 JUN 1943 ( SUPERINTENDENT, ANC) 10 JUL 1944 ( COL. ANC, AUS) 16 JUL 1947 ( LT COL, ANC-RA) 21 JUL 1947 ( CHIEF OF ANC, RA)

IT APPEARS THAT BY PARAGRAPH 24, WAR DEPARTMENT SPECIAL ORDERS NO. 159, DATED AUGUST 13, 1947, COLONEL BLANCHFIELD WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 30, 1947, AND THAT SUCH SPECIAL ORDERS STATED THAT RETIREMENT WAS IN ACCORDANCE WITH SECTION 108 OF THE ARMY NAVY NURSES ACT OF 1947, PUBLIC LAW 36, APPROVED APRIL 16, 1947 61 STAT. 44, AND SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 407, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380. ALSO, IN A LETTER TO THE FINANCE OFFICER, U.S. ARMY, WASHINGTON, D.C., COLONEL BLANCHFIELD STATES THAT SHE SERVED ON ACTIVE DUTY AS A MEMBER OF THE ARMY NURSE CORPS FROM AUGUST 20, 1917, TO MAY 13, 1919, AND FROM JANUARY 19, 1920, TO SEPTEMBER 30, 1947, AND THAT " I THEREFORE WAS ELIGIBLE FOR RETIREMENT UNDER EITHER * * * LAW (SECTION 5 OF THE 1935 ACT, AS AMENDED, OR SECTION 108, OF THE 1947 ACT) BOTH OF WHICH WERE CITED IN MY APPLICATION FOR RETIREMENT AND MY RETIREMENT ORDER.'

THE ABOVE-CITED SECTION 108 OF THE ACT OF APRIL 16, 1947, 61 STAT. 44, 45, PROVIDES AS FOLLOWS:

(A) AN OFFICER ON THE ACTIVE LIST OF EITHER THE ARMY NURSE CORPS OR THE WOMEN'S MEDICAL SPECIALIST CORPS, REGULAR ARMY, AFTER TWENTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, MAY UPON HER REQUEST, AT THE DISCRETION OF THE SECRETARY OF WAR, BE RETIRED AND SHALL RECEIVE RETIRED PAY EQUAL TO 2 1/2 PER CENTUM OF THE BASE AND LONGEVITY PAY SHE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF SUCH ACTIVE FEDERAL SERVICE. PROVIDED, THAT IN COMPUTING THE NUMBER OF YEARS OF SUCH SERVICE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE OF ACTIVE- DUTY PAY, AND FOR NO OTHER PURPOSE, ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE SHALL BE COUNTED AS A COMPLETE YEAR: PROVIDED FURTHER, THAT IN NO EVENT SHALL SUCH RETIRED PAY EXCEED 75 PER CENTUM OF SUCH BASE AND LONGEVITY PAY: AND PROVIDED FURTHER, THAT REGARDLESS OF THE YEARS OF SERVICE COMPLETED, AT ANY TIME AFTER SUCH AN OFFICER SHALL HAVE ATTAINED THE AGE OF FIFTY, IF HER PERMANENT GRADE IS BELOW THAT OF MAJOR, OR AT ANY TIME AFTER SUCH AN OFFICER SHALL HAVE ATTAINED THE AGE OF FIFTY-FIVE, IF HER PERMANENT GRADE IS MAJOR OR HIGHER, SHE MAY, AT THE DISCRETION OF THE SECRETARY OF WAR WITHOUT HER CONSENT, BE RETIRED AND UPON SUCH RETIREMENT SHE SHALL RECEIVE RETIRED PAY EQUAL TO 2 1/2 PER CENTUM OF THE BASE AND LONGEVITY PAY SHE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN THE GRADE IN WHICH RETIRED, MULTIPLIED BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF HER ACTIVE FEDERAL SERVICE, BUT IN NO EVENT SHALL SUCH RETIRED PAY EXCEED 75 PER CENTUM OF SUCH BASE AND LONGEVITY PAY.

(B) UNLESS ENTITLED TO HIGHER RETIRED RANK OR PAY UNDER ANY PROVISION OF LAW, EACH COMMISSIONED OFFICER WHO SHALL HAVE SERVED FOR FOUR YEARS AS CHIEF OF THE ARMY NURSE CORPS, REGULAR ARMY, OR AS CHIEF OF THE WOMEN'S MEDICAL SPECIALIST CORPS, REGULAR ARMY, OR AS AN ASSISTANT CHIEF OF THE WOMEN'S MEDICAL SPECIALIST CORPS, REGULAR ARMY, SHALL UPON RETIREMENT BE RETIRED WITH THE RANK HELD BY HER WHILE SO SERVING, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH SHE WOULD RECEIVE IF SERVING ON ACTIVE DUTY WITH SUCH RANK, AND IF THEREAFTER RECALLED TO ACTIVE SERVICE, SHALL BE RECALLED IN SUCH RANK AND SHALL CONSTITUTE AN ADDITIONAL NUMBER THEREIN: P*OVIDED, THAT THE COMMISSIONED OFFICER FIRST APPOINTED AS CHIEF OF THE ARMY NURSE CORPS AND THE COMMISSIONED OFFICER FIRST APPOINTED AS CHIEF OF THE WOMEN'S MEDICAL SPECIALIST CORPS, PURSUANT TO THIS ACT, SHALL, WITHOUT LIMITATION AS TO THE TIME THEY SHALL SERVE IN SUCH CAPACITIES, UPON RETIREMENT BE RETIRED WITH THE RANK HELD WHILE SO SERVING, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY THEY WOULD RECEIVE IF SERVING ON ACTIVE DUTY WITH SUCH RANK.

(C) IN DETERMINING ELIGIBILITY FOR RETIREMENT AND THE PERCENTAGE OF ACTIVE-SERVICE PAY TO BE EMPLOYED IN COMPUTING THE AMOUNT OF RETIRED PAY UNDER ANY PROVISION OF LAW, EACH COMMISSIONED OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO IS COMMISSIONED IN ANY OF THE CORPS ESTABLISHED BY THIS ACT, SHALL BE DEEMED TO HAVE AT LEAST THE SAME LENGTH OF CONTINUOUS ACTIVE COMMISSIONED SERVICE IN THE REGULAR ARMY AS ANY OFFICER JUNIOR TO HER RANK IN THE MEDICAL DEPARTMENT OF THE REGULAR ARMY.

SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, 10 U.S.C.A. 971B, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

THAT WHENEVER ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILLIPPINE SCOUTS SHALL HAVE COMPLETED NOT LESS THAN FIFTEEN NOR MORE THAN TWENTY-NINE YEARS' SERVICE, HE MAY UPON HIS OWN APPLICATION BE RETIRED, IN THE DISCRETION OF THE SECRETARY OF WAR WITH ANNUAL PAY EQUAL TO 2 1/2 PER CENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT, MULTIPLIED BY A NUMBER EQUAL TO THE YEARS OF HIS ACTIVE SERVICE NOT IN EXCESS OF TWNETY-NINE YEARS: PROVIDED, THAT THE NUMBER OF YEARS OF SERVICE TO BE CREDITED IN COMPUTING THE RIGHT TO RETIREMENT AND RETIREMENT PAY HEREINBEFORE PROVIDED IN THIS SECTION SHALL INCLUDE ALL SERVICE NOW OR HEREAFTER CREDITED FOR ACTIVE-DUTY PAY PURPOSES, ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE TO BE COUNTED AS A COMPLETE YEAR: PROVIDED FURTHER, THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILLIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PER CENTUM OF HIS ACTIVE-DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE AS HEREINAFTER PROVIDED, EXCEPT THAT OFFICERS WITH LESS THAN TWENTY YEARS' SERVICE AND OFFICERS WHO ARE UNDER INVESTIGATION OR WHO ARE AWAITING TRIAL BY COURTS MARTIAL OR THE RESULT OF SUCH TRIAL, OR WHOSE CASES ARE PENDING BEFORE COURTS OF INQUIRY SHALL BE RETIRED ONLY WHEN THE APPLICATION FOR RETIREMENT IN EACH CASE HAS BEEN APPROVED BY THE SECRETARY OF WAR * * *.

CF. SECTION 202 OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1084, FURTHER AMENDING THE SAID SECTION 5, AS AMENDED.

PRESUMABLY, IT IS THE VIEW THAT THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, SUPRA, ARE APPLICABLE IN COLONEL BLANCHFIELD'S CASE BY REASON OF THE GENERAL ASSIMILATION PROVISION CONTAINED IN SECTION 109 OF THE ARMY-NAVY NURSES ACT OF 1947, 61 STAT. 45, AS FOLLOWS:

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, ALL LAWS NOW OR HEREAFTER APPLICABLE TO MALE COMMISSIONED OFFICERS OF THE REGULAR ARMY, TO FORMER MALE COMMISSIONED OFFICERS OF THE REGULAR ARMY, AND TO THEIR DEPENDENTS AND BENEFICIARIES, SHALL IN LIKE CASES BE APPLICABLE RESPECTIVELY TO COMMISSIONED OFFICERS OF ANY OF THE CORPS ESTABLISHED BY THIS ACT, REGULAR ARMY, AND TO THEIR DEPENDENTS AND BENEFICIARIES.

UNDER THE SAID SECTION 109 ALL LAWS APPLICABLE TO MALE COMMISSIONED OFFICERS OF THE REGULAR ARMY ARE MADE APPLICABLE "IN LIKE CASES" TO FEMALE COMMISSIONED OFFICERS APPOINTED IN THE REGULAR ARMY UNDER THE 1947 ACT,"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED.' THUS,"EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED" OFFICERS OF THE ARMY NURSE CORPS, REGULAR ARMY, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF PROVISIONS OF LAW APPLICABLE TO OFFICERS OF THE REGULAR ARMY, IF OTHERWISE APPLICABLE. SEE PAGE 384 OF HEARINGS BEFORE SUBCOMMITTEE NO. 9, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVE, ON H.R. 1943, WHICH BECAME THE ARMY-NAVY NURSES ACT OF 1947. HOWEVER, THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, ARE APPLICABLE ONLY TO OFFICERS ON THE ACTIVE LIST OF THE REGULAR ARMY WHO HAVE COMPLETED NOT LESS THAN 15 NOR MORE THAN 29 YEARS' SERVICE; AND, IT HAS BEEN RECOGNIZED BY BOTH THE JUDGE ADVOCATE GENERAL OF THE ARMY AND THIS OFFICE THAT AN OFFICER OF THE REGULAR ARMY IS NOT ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF THE SAID SECTION 5, AFTER THE COMPLETION OF 29 YEARS' SERVICE. SEE 10P. J.A.G. 1912-1940, PAGE 136; B-71972, MAY 9, 1948, 27 COMP. GEN. 705. SINCE IT IS STATED THAT COLONEL BLANCHFIELD HAD COMPLETED 29 YEARS, 5 MONTHS AND 6 DAYS' SERVICE AT THE TIME OF RETIREMENT, IT IS NOT UNDERSTOOD ON WHAT BASIS IT ADMINISTRATIVELY WAS DETERMINED THAT THE OFFICER WAS ELIGIBLE FOR RETIREMENT OR ENTITLED TO ANY RETIRED PAY BENEFITS UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED. CLEARLY, THE ESTABLISHED RULES OF STATUTORY CONSTRUCTION REQUIRE THE CONCLUSION THAT THE PROVISO IN THE SAID SECTION 5, AS AMENDED, RELATING TO OFFICERS WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, HAS NO APPLICATION TO THE CASES OF OFFICERS RETIRED UNDER PROVISIONS OF LAW OTHER THAN THOSE CONTAINED IN SUCH SECTION AS AMENDED.

IT MIGHT BE URGED, IN VIEW OF THE ASSIMILATION PROVISIONS OF SECTION 109 OF THE ARMY-NAVY NURSES ACT OF 1947, SUPRA, THAT COLONEL BLANCHFIELD IS ENTITLED TO THE BENEFITS OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, WHICH ARE AS FOLLOWS:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

IT CONSISTENTLY HAS BEEN HELD THAT SUCH PROVISIONS WERE INTENDED TO APPLY ONLY TO THE PAY OF AN OFFICER'S PERMANENT GRADE OR RANK AND NOT THAT OF HIS TEMPORARY GRADE OR RANK. 25 COMP. GEN. 274; 26 ID. 932; B 74361, JUNE 28, 1948, 27 ID. 779. SECTION 101B OF THE ARMY-NAVY NURSES ACT OF 1947, 61 STAT. 41, SPECIFICALLY PROVIDES THAT THE CHIEF OF THE ARMY NURSE CORPS SHALL HAVE THE "TEMPORARY RANK," PAY AND ALLOWANCES OF A COLONEL WHILE SO SERVING; AND SECTION 108B OF THE SAID ACT AUTHORIZES THE COMMISSIONED OFFICER FIRST APPOINTED AS CHIEF OF THE ARMY NURSE CORPS, WITHOUT LIMITATION AS TO THE TIME SHE MAY SERVE IN SUCH CAPACITY, TO BE RETIRED WITH THE RANK HELD WHILE SO SERVING (NAMELY, TEMPORARY RANK OF COLONEL), WITH THE RETIRED PAY OF SUCH TEMPORARY RANK. IT FOLLOWS, THEREFORE, THAT SINCE COLONEL BLANCHFIELD WAS RETIRED WITH THE TEMPORARY RANK OF COLONEL AND IS RECEIVING RETIRED PAY BASED UPON SUCH TEMPORARY RANK, SHE IS NOT ENTITLED TO HAVE HER RETIRED PAY COMPUTED ON THE BASIS OF 75 PER CENTUM OF HER ACTIVE DUTY PAY COMPUTED ON THE BASIS OF 75 PER CENTUM OF HER ACTIVE DUTY PAY UNDER THE FOURTH PARAGRAPH OF THE SAID SECTION 15, IRRESPECTIVE OF THE QUESTION WHETHER OR NOT SERVICE AS A RESERVE NURSE OF THE ARMY NURSE CORPS PRIOR TO NOVEMBER 12, 1918, PROPERLY MAY BE REGARDED AS SERVICE AS "A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES," WITHIN THE MEANING OF THE SAID FORTH PARAGRAPH.

ACCORDINGLY, PAYMENT ON THE VOUCHER IN FAVOR OF COLONEL BLANCHFIELD IS NOT AUTHORIZED AND SUCH VOUCHER IS RETAINED IN THIS OFFICE.