A-92119, MARCH 31, 1945, 24 COMP. GEN. 707
Highlights
- AUTHORIZING FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH RETIRED PERSONNEL ARE SERVING ON ACTIVE DUTY. A NAVY ENLISTED MAN ADVANCED IN RATING BETWEEN THE DATE HE WOULD HAVE BEEN RETIRED BUT FOR THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23. THE DATE OF RETIREMENT UNDER SAID STATUTE IS ENTITLED. 1945: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. THE AUDIT ACTION WAS BASED UPON THE DECISION OF THIS OFFICE DATED DECEMBER 13. WHICH WAS RENDERED AT THE REQUEST OF THE SECRETARY OF THE NAVY FOR A DETERMINATION OF THE ACTIVE DUTY PAY LEGALLY AUTHORIZED TO BE PAID BURKE. IN THAT DECISION IT WAS HELD THAT BURKE WAS ENTITLED. WAS AUTHORIZED TO BE EFFECTIVE DECEMBER 31. ORDERS WERE ISSUED DIRECTING HIS TRANSFER TO THE RETIRED LIST EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING RECEIPT OF SUCH ORDERS.
A-92119, MARCH 31, 1945, 24 COMP. GEN. 707
PAY - ACTIVE DUTY - RETIRED PERSONNEL UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942--- EFFECTIVE JUNE 1, 1942--- AUTHORIZING FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH RETIRED PERSONNEL ARE SERVING ON ACTIVE DUTY, A NAVY ENLISTED MAN ADVANCED IN RATING BETWEEN THE DATE HE WOULD HAVE BEEN RETIRED BUT FOR THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23, 1930, AND THE DATE OF RETIREMENT UNDER SAID STATUTE IS ENTITLED, WHEN SERVING ON ACTIVE DUTY IN THE RATING TO WHICH SO ADVANCED, TO THE PAY AND ALLOWANCES OF SUCH RATING, NOTWITHSTANDING THE HOLDING TO THE CONTRARY IN 21 COMP. GEN. 564, UNDER STATUTES IN EFFECT PRIOR TO JUNE 1, 1942.
ASSISTANT COMPTROLLER GENERAL YATES TO LT. COM. SEYMOUR DELONG, U.S. NAVY, MARCH 31, 1945:
REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1944, RELATIVE TO NOTICE OF EXCEPTION DATED AUGUST 8, 1944, WITHHOLDING CREDIT ON VOUCHER C-1267, IN YOUR MARCH 1943 ACCOUNTS, OF PAYMENT TO THOMAS BURKE, CHIEF MACHINIST'S MATE, PERMANENT APPOINTMENT, RETIRED, OF THE DIFFERENCE BETWEEN THE ACTIVE DUTY PAY AND ALLOWANCES AUTHORIZED FOR MACHINIST'S MATE, FIRST CLASS, AND THOSE AUTHORIZED FOR CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, FOR THE PERIOD JULY 21, 1941, THROUGH MARCH 31, 1943.
THE AUDIT ACTION WAS BASED UPON THE DECISION OF THIS OFFICE DATED DECEMBER 13, 1941, 21 COMP. GEN. 564, COPY HEREWITH, WHICH WAS RENDERED AT THE REQUEST OF THE SECRETARY OF THE NAVY FOR A DETERMINATION OF THE ACTIVE DUTY PAY LEGALLY AUTHORIZED TO BE PAID BURKE, A RETIRED ENLISTED MAN, UPON HIS RECALL TO ACTIVE DUTY ON JULY 21, 1941. IN THAT DECISION IT WAS HELD THAT BURKE WAS ENTITLED, WHILE ON SUCH ACTIVE DUTY, TO THE FULL PAY AND ALLOWANCES OF A MACHINIST'S MATE, FIRST CLASS--- THE PAY GRADE WHICH HE HELD ON THE RETIRED LIST. SEE ALSO 24 COMP. DEC. 79, AND THE ACT OF AUGUST 29, 1916, 39 STAT. 591, 34 U.S.C. 433.
THE RECORDS DISCLOSE THAT ON NOVEMBER 29, 1937, BURKE, WHILE SERVING AS MACHINIST'S MATE, FIRST CLASS, MADE APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, HAVING COMPLETED, AT THAT TIME, OVER 30 YEARS' SERVICE; THAT ON DECEMBER 7, 1937, HIS ADVANCEMENT TO CHIEF MACHINIST- MATE, ACTING APPOINTMENT, WAS AUTHORIZED TO BE EFFECTIVE DECEMBER 31, 1937; THAT ON DECEMBER 13, 1937, ORDERS WERE ISSUED DIRECTING HIS TRANSFER TO THE RETIRED LIST EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING RECEIPT OF SUCH ORDERS; THAT ON JANUARY 1, 1938--- PURSUANT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253--- BURKE WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY; AND THAT ON JULY 21, 1941, HE WAS RECALLED TO ACTIVE DUTY.
THE SAID DECISION OF DECEMBER 13, 1941, CONSIDERED THE EFFECT OF BURKE'S ADVANCEMENT BETWEEN THE DATE HE MADE APPLICATION FOR RETIREMENT AND THE EFFECTIVE DATE OF HIS RETIREMENT UNDER THE PROVISIONS OF THE SAID UNIFORM RETIREMENT DATE ACT UPON HIS ACTIVE DUTY PAY STATUS UPON RECALL TO ACTIVE DUTY, AND IT WAS HELD THAT SUCH ADVANCEMENT WAS NOT EFFECTIVE TO CHANGE HIS PAY STATUS IN ANY WAY AND THAT HIS ACTIVE DUTY PAY AS A RETIRED ENLISTED MAN WAS REQUIRED TO BE COMPUTED AS THOUGH SUCH ADVANCEMENT HAD NOT BEEN MADE.
HOWEVER, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH WAS ENACTED SUBSEQUENT TO THE DATE OF THE SAID DECISION OF DECEMBER 13, 1941, PROVIDES THAT---
* * * RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE AND RETIRED WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY * * *.
IN ACCORDANCE WITH THAT PROVISION, EFFECTIVE JUNE 1, 1942, RETIRED PERSONNEL THEREIN MENTIONED, WHEN ON ACTIVE DUTY, ARE ENTITLED TO "THE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY," AND, SINCE BURKE WAS RECALLED TO ACTIVE DUTY AS A CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, HE IS ENTITLED, ON AND AFTER JUNE 1, 1942, TO THE FULL PAY AND ALLOWANCES AUTHORIZED FOR THE RATING OF CHIEF MACHINIST'S MATE WHEN ON ACTIVE DUTY.
ACCORDINGLY, THE NOTICE OF EXCEPTION WILL BE RESTATED TO COVER ONLY THE DIFFERENCE IN PAY BETWEEN THAT AUTHORIZED FOR MACHINIST'S MATE, FIRST CLASS, AND CHIEF MACHINIST'S MATE, ACTING APPOINTMENT, FOR THE PERIOD JULY 21, 1941, THROUGH MAY 31, 1942.