A-40048, JANUARY 19, 1932, 11 COMP. GEN. 275

A-40048, JANUARY 19, 1932, 11 COMP. GEN. 275

PAY - RETIRED - ENLISTED MEN OF THE PHILIPPINE SCOUTS THERE IS NO AUTHORITY IN THE ACT OF MARCH 2, 1907, 34 STAT. 1217, PROVIDING FOR THE RETIREMENT OF NONCOMMISSIONED OFFICERS, PETTY OFFICERS, AND ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS, NOR IN ANY OTHER LAW, FOR THE RETIREMENT AFTER 30 YEARS OF SERVICE OF ENLISTED MEN OF THE PHILIPPINE SCOUTS.

COMPTROLLER GENERAL MCCARL TO MAJ. S.R. BEARD, UNITED STATES ARMY, JANUARY 19, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 5, 1931, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A PAYROLL VOUCHER TRANSMITTED THEREWITH IN THE SUM OF $50.81, REPRESENTING RETIRED PAY AND ALLOWANCES OF SANTOS MIGUEL, MASTER SERGEANT, PHILIPPINE SCOUTS, RETIRED, FOR THE MONTH OF OCTOBER 1931, WHO IS STATED TO HAVE BEEN PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 31, 1931, IN ACCORDANCE WITH PARAGRAPH 35, WAR DEPARTMENT SPECIAL ORDERS NO. 207, OF SEPTEMBER 3, 1931.

A STATEMENT OF THE SOLDIER'S SERVICE SHOWS THAT HE FIRST ENLISTED IN THE PHILIPPINE SCOUTS OCTOBER 1, 1901, SERVING CONTINUOUSLY THEREIN UNTIL OCTOBER 31, 1931, WHEN HE WAS RETIRED PURSUANT TO PARAGRAPH 35 OF WAR DEPARTMENT SPECIAL ORDERS NO. 207, DATED SEPTEMBER 3, 1931. THE RETIREMENT BENEFITS WHICH IT IS PROPOSED TO ALLOW ARE BASED PARTLY ON THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, AND PARTLY UNDER THE AUTHORITY VESTED IN THE SECRETARY OF WAR UNDER THE PROVISIONS OF SECTION 36 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 757, AS AMENDED BY THE ACT OF MAY 10, 1926, 44 STAT. 496. THAT IS TO SAY, THE VOUCHER COMPUTES THE RETIRED "PAY" AT THREE-FOURTHS OF $53.75, THE PAY HE WAS RECEIVING ON OCTOBER 31, 1931, AS A MASTER SERGEANT, PHILIPPINE SCOUTS ($40.31), PLUS $10.50, REPRESENTING TWO-THIRDS OF THE ALLOWANCE AUTHORIZED BY THE ACT OF MARCH 2, 1907, TO BE PAID TO ENLISTED MEN OF THE ARMY, NAVY, OR MARINE CORPS, WHO HAVE BEEN RETIRED AFTER 30 YEARS' SERVICE UNDER SECTION 2, WAR DEPARTMENT CIRCULAR NO. 41, DATED SEPTEMBER 21, 1931.

SECTION 36 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 757, PROVIDES:

THAT WHEN IN HIS OPINION THE CONDITIONS IN THE PHILIPPINE ISLANDS JUSTIFY SUCH ACTION THE PRESIDENT IS AUTHORIZED TO ENLIST NATIVES OF THOSE ISLANDS FOR SERVICE IN THE ARMY, TO BE ORGANIZED AS SCOUTS, WITH SUCH OFFICERS AS HE SHALL DEEM NECESSARY FOR THEIR PROPER CONTROL, OR AS TROOPS OR COMPANIES, AS AUTHORIZED BY THIS ACT, FOR THE REGULAR ARMY. THE PRESIDENT IS FURTHER AUTHORIZED, IN HIS DISCRETION, TO FORM COMPANIES, ORGANIZED AS ARE COMPANIES OF THE REGULAR ARMY, IN SQUADRONS OR BATTALIONS, WITH OFFICERS AND NONCOMMISSIONED OFFICERS CORRESPONDING TO SIMILAR ORGANIZATIONS IN THE CAVALRY AND INFANTRY ARMS. THE TOTAL NUMBER OF ENLISTED MEN IN SAID NATIVE ORGANIZATIONS SHALL NOT EXCEED 12,000, AND THE TOTAL ENLISTED FORCE OF THE LINE OF THE ARMY, TOGETHER WITH SUCH NATIVE FORCE, SHALL NOT EXCEED AT ANY ONE TIME 100,000.

THE MAJORS TO COMMAND THE SQUADRONS AND BATTALIONS SHALL BE SELECTED BY THE PRESIDENT FROM CAPTAINS OF THE LINE OF THE REGULAR ARMY, AND WHILE SO SERVING THEY SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF THE GRADE OF MAJOR. THE CAPTAINS OF THE TROOPS OR COMPANIES SHALL BE SELECTED BY THE PRESIDENT FROM FIRST LIEUTENANTS OF THE LINE OF THE REGULAR ARMY, AND WHILE SO SERVING THEY SHALL HAVE THE RANK, PAY, AND ALLOWANCES OF CAPTAIN OF THE ARM TO WHICH ASSIGNED. THE SQUADRON AND BATTALION STAFF OFFICERS, AND FIRST AND SECOND LIEUTENANTS OF COMPANIES, MAY BE SELECTED FROM THE NONCOMMISSIONED OFFICERS OR ENLISTED MEN OF THE REGULAR ARMY OF NOT LESS THAN TWO YEARS' SERVICE, OR FROM OFFICERS OR NONCOMMISSIONED OFFICERS OR ENLISTED MEN SERVING, OR WHO HAVE SERVED, IN THE VOLUNTEERS SUBSEQUENT TO APRIL TWENTY FIRST, EIGHTEEN HUNDRED AND NINETY-EIGHT, AND OFFICERS OF THOSE GRADES SHALL BE GIVEN PROVISIONAL APPOINTMENTS FOR PERIODS OF FOUR YEARS EACH, AND NO SUCH APPOINTMENTS SHALL BE CONTINUED FOR A SECOND OR SUBSEQUENT TERM UNLESS THE OFFICER'S CONDUCT SHALL HAVE BEEN SATISFACTORY IN EVERY RESPECT. THE PAY AND ALLOWANCES OF PROVISIONAL OFFICERS OF NATIVE ORGANIZATIONS SHALL BE THOSE AUTHORIZED FOR OFFICERS OF LIKE GRADES IN THE REGULAR ARMY. THE PAY, RATIONS, AND CLOTHING ALLOWANCES TO BE AUTHORIZED FOR THE ENLISTED MEN SHALL BE FIXED BY THE SECRETARY OF WAR, AND SHALL NOT EXCEED THOSE AUTHORIZED FOR THE REGULAR ARMY.

WHEN, IN THE OPINION OF THE PRESIDENT, NATIVES OF THE PHILIPPINE ISLANDS SHALL, BY THEIR SERVICES AND CHARACTER, SHOW FITNESS FOR COMMAND, THE PRESIDENT IS AUTHORIZED TO MAKE PROVISIONAL APPOINTMENTS TO THE GRADES OF SECOND AND FIRST LIEUTENANTS FROM SUCH NATIVES, WHO, WHEN SO APPOINTED, SHALL HAVE THE PAY AND ALLOWANCES TO BE FIXED BY THE SECRETARY OF WAR, NOT EXCEEDING THOSE OF CORRESPONDING GRADES OF THE REGULAR ARMY.

SECTION 22 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 181, PROVIDES THAT ALL EXISTING LAWS PERTAINING TO THE PHILIPPINE SCOUTS, SHALL CONTINUE AND REMAIN IN FORCE, EXCEPT AS THEREIN SPECIFICALLY PROVIDED OTHERWISE. SECTION 26 PROVIDES:

RETIREMENT OF OFFICERS OF PHILIPPINE SCOUTS.--- CAPTAINS AND LIEUTENANTS OF PHILIPPINE SCOUTS WHO ARE CITIZENS OF THE UNITED STATES SHALL HEREAFTER BE ENTITLED TO RETIREMENT UNDER THE LAWS GOVERNING THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY, EXCEPT THAT THEY SHALL BE RETIRED IN THE GRADE HELD BY THEM AT THE DATE OF RETIREMENT, SHALL BE ENTITLED TO RETIREMENT FOR DISABILITY UNDER THE SAME CONDITIONS AS OFFICERS OF THE REGULAR ARMY, AND THAT THEY SHALL RECEIVE, AS RETIRED PAY, THE AMOUNTS ALLOWED BY LAW, AS RETIRED PAY AND ALLOWANCES, OF MASTER SIGNAL ELECTRICIANS OF THE UNITED STATES ARMY, AND NO MORE: PROVIDED, THAT DOUBLE TIME FOR SERVICE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL NOT BE COUNTED FOR THE PURPOSE OF THIS SECTION SO AS TO REDUCE THE ACTUAL PERIOD OF SERVICE BELOW TWENTY YEARS: PROVIDED FURTHER, THAT FORMER OFFICERS OF THE PHILIPPINE SCOUTS WHO, BECAUSE OF DISABILITY OCCASIONED BY WOUNDS RECEIVED IN ACTION, HAVE RESIGNED OR BEEN DISCHARGED FROM THE SERVICE, OR WHO HAVE HERETOFORE SERVED AS SUCH FOR A PERIOD OF MORE THAN FIVE YEARS AND HAVE BEEN RETIRED AS ENLISTED MEN, SHALL BE PLACED UPON THE RETIRED LIST AS OFFICERS OF PHILIPPINE SCOUTS AND THEREAFTER RECEIVE THE RETIRED PAY AND ALLOWANCES PROVIDED BY THIS SECTION FOR OTHER OFFICERS OF PHILIPPINE SCOUTS: AND PROVIDED FURTHER, THAT ANY FORMER OFFICER OF PHILIPPINE SCOUTS WHO VACATED HIS OFFICE IN THE PHILIPPINE SCOUTS BY DISCHARGE OR RESIGNATION ON ACCOUNT OF DISABILITY CONTRACTED IN THE LINE OF DUTY AND WHO WAS SUBSEQUENTLY RETIRED AS AN ENLISTED MAN, EXCEPT ANY FORMER OFFICER OF PHILIPPINE SCOUTS WHO HAS BEEN RETIRED AS AN ENLISTED MAN BY SPECIAL ACT OF CONGRESS, SHALL BE TRANSFERRED TO THE RETIRED LIST CREATED BY THIS SECTION AND SHALL THEREAFTER RECEIVE THE RETIRED PAY AND ALLOWANCES AUTHORIZED BY THIS SECTION, AND NO MORE. OFFICERS OF PHILIPPINE SCOUTS RETIRED UNDER THE PROVISIONS OF THIS SECTION SHALL NOT FORM PART OF THE LIMITED RETIRED LIST NOW AUTHORIZED BY LAW.

SAID SECTION 26 WAS REPEALED BY THE ACT OF JUNE 4, 1920, 41 STAT. 775, AND IN LIEU THEREOF, THERE WAS ADDED SECTION 22 (A), 41 STAT. 770, WHICH PROVIDED THAT---

THE PRESIDENT IS AUTHORIZED TO FORM THE PHILIPPINE SCOUTS INTO SUCH BRANCHES AND TACTICAL UNITS AS HE MAY DEEM EXPEDIENT, WITHIN THE LIMIT OF STRENGTH PRESCRIBED BY LAW, ORGANIZED SIMILARLY TO THOSE OF THE REGULAR ARMY, THE OFFICERS TO BE DETAILED FROM THOSE AUTHORIZED IN SECTION 4 HEREOF. ON JULY 1, 1920, ALL OFFICERS OF THE PHILIPPINE SCOUTS ON THE ACTIVE LIST WHO ARE CITIZENS OF THE UNITED STATES, AND ARE FOUND QUALIFIED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SHALL BE RECOMMISSIONED IN SOME ONE OF THE BRANCHES PROVIDED FOR BY THIS ACT, AND THOSE NOT SO RECOMMISSIONED SHALL CONTINUE TO SERVE UNDER THEIR COMMISSIONS AS OFFICERS OF THE PHILIPPINE SCOUTS. NO FURTHER APPOINTMENTS SHALL BE MADE AS OFFICERS OF THE PHILIPPINE SCOUTS EXCEPT OF CITIZENS OF THE PHILIPPINE ISLANDS, WHO MAY BE APPOINTED IN THE GRADE OF SECOND LIEUTENANT, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE. OFFICERS COMMISSIONED IN THE PHILIPPINE SCOUTS SHALL BE SUBJECT TO PROMOTION, CLASSIFICATION, AND ELIMINATION AS HEREINAFTER PRESCRIBED FOR OFFICERS OF THE REGULAR ARMY. THOSE NOW ON THE RETIRED LIST SHALL HEREAFTER RECEIVE THE SAME PAY AS A RETIRED SECOND LIEUTENANT OF EQUAL SERVICE. OFFICERS OF THE PHILIPPINE SCOUTS SHALL HEREAFTER BE RETIRED UNDER THE SAME CONDITIONS, AND THOSE HEREAFTER PLACED ON THE RETIRED LIST SHALL RECEIVE THE SAME RETIRED PAY, AS OTHER OFFICERS OF LIKE GRADES AND LENGTH OF SERVICE, AND SHALL BE EQUALLY ELIGIBLE FOR ADVANCEMENT ON ACCOUNT OF ACTIVE DUTY PERFORMED SINCE RETIREMENT. NOTHING IN THIS ACT SHALL BE CONSTRUED TO ALTER IN ANY RESPECT THE PRESENT STATUS OF ENLISTED MEN OF THE PHILIPPINES SCOUTS.

SECTION 17 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDES THAT OFFICERS AND FORMER OFFICERS OF THE PHILIPPINE SCOUTS WHO WERE PLACED ON THE RETIRED LIST PRIOR TO JUNE 4, 1920, SHALL BE ENTITLED TO PROMOTION ON THE RETIRED LIST FOR ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT IN ACCORDANCE WITH SECTION 127 (A) OF THE ACT OF JUNE 3, 1916, AS AMENDED, AND TO THE SAME PAY AND BENEFITS RECEIVED BY OTHER OFFICERS OF THE ARMY OF LIKE GRADE AND LENGTH OF SERVICE ON THE RETIRED LIST, AND SECTION 21 THEREOF PROVIDED---

THAT NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS OR REGULATIONS MADE IN PURSUANCE OF LAW GOVERNING PAY AND ALLOWANCES OF * * * THE ENLISTED MEN OF THE PHILIPPINE SCOUTS * * *.

THE ACT OF MARCH 2, 1907, 34 STAT. 1217, PROVIDING FOR THE RETIREMENT OF NONCOMMISSIONED OFFICERS, PETTY OFFICERS, AND ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, IS WORDED AS FOLLOWS:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY AND ALLOWANCES HE MAY THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHALL BE AS FOLLOWS: NINE DOLLARS AND FIFTY CENTS PER MONTH IN LIEU OF RATIONS AND CLOTHING AND SIX DOLLARS AND TWENTY-FIVE CENTS PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT: PROVIDED, THAT IN COMPUTING THE NECESSARY THIRTY YEARS' TIME ALL SERVICE IN THE ARMY, NAVY, AND MARINE CORPS SHALL BE CREDITED.

IT SEEMS CLEAR FROM THIS LEGISLATIVE HISTORY THAT IN AUTHORIZING THE ENLISTMENT IN THE ARMY OF NATIVES OF THE PHILIPPINE ISLANDS TO BE ORGANIZED AS SCOUTS AND WHEN DEEMED NECESSARY "AS TROOPS OR COMPANIES AS AUTHORIZED * * * FOR THE REGULAR ARMY" THAT IT WAS NOT CONTEMPLATED THAT ANY MEMBER OF SUCH ORGANIZATION OF NATIVES OF THE PHILIPPINE ISLANDS SHOULD BE ENTITLED TO RETIREMENT, EITHER OFFICERS OR ENLISTED MEN. SECTION 22 OF THE ACT OF JUNE 3, 1916, PROVISION WAS MADE FOR PLACING ON THE RETIRED LIST CAPTAINS AND LIEUTENANTS OF THE PHILIPPINE SCOUTS CITIZENS OF THE UNITED STATES UNDER THE LAWS GOVERNING THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY. THIS PROVISION FOR THE RETIREMENT OF OFFICERS OF THE PHILIPPINE SCOUTS HAS BEEN CHANGED BY SUBSEQUENT LEGISLATION BUT IT HAS BEEN SPECIFICALLY PROVIDED THAT NOTHING THEREIN SHOULD ALTER IN ANY RESPECT THE PRESENT STATUS OF ENLISTED MEN OF THE PHILIPPINE SCOUTS. NO LAW HAS MODIFIED THE STATUS OF ENLISTED MEN OF THE PHILIPPINE SCOUTS AS FIXED BY THE ACT OF 1901. THE INAPPLICABILITY OF THE LAWS RELATING TO THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY TO THE PHILIPPINE SCOUTS IS MADE APPARENT BY SECTION 26 OF THE ACT OF JUNE 3, 1916, IN RESTRICTING THE COUNTING OF DOUBLE TIME BY THE OFFICERS OF THE PHILIPPINE SCOUTS THEREIN AUTHORIZED TO BE RETIRED AS ENLISTED MEN OF THE REGULAR ARMY, AND THIS INAPPLICABILITY IS FURTHER APPARENT IN THE ACT OF 1907 PROVIDING FOR THE RETIREMENT OF ENLISTED MEN OF THE REGULAR ARMY WHICH FIXES THE COMMUTED VALUE FOR RATIONS, CLOTHING, QUARTERS, FUEL, AND LIGHT IN EXCESS OF THE PAY PAID ENLISTED MEN OF THE PHILIPPINE SCOUTS IN THE LOWER GRADES. THERE IS FOR NOTING, ALSO, THAT THIS IS A MILITARY ORGANIZATION COMPOSED OF NATIVES OF A TERRITORY UNDER THE SOVEREIGNTY OF THE UNITED STATES ORGANIZED PRIMARILY FOR DUTY IN THAT TERRITORY AND THAT IT IS THE DECLARED PURPOSE OF THE UNITED STATES "TO WITHDRAW THEIR SOVEREIGNTY OVER THE PHILIPPINE ISLANDS AND TO RECOGNIZE THEIR INDEPENDENCE AS SOON AS A STABLE GOVERNMENT CAN BE ESTABLISHED THEREIN.' ACT OF AUGUST 29, 1916, 39 STAT. 545. IT IS TO BE OBSERVED THAT IN THE RETIREMENT OF THESE NATIVES OF THE PHILIPPINE ISLANDS THE AMERICAN TAXPAYER IS BEING ASKED, IN ADDITION TO SUPPORTING A NATIVE FORCE IN THE PHILIPPINE ISLANDS FOR THE MAINTENANCE OF ORDER THERE FOR THE BENEFIT OF THE INHABITANTS OF THOSE ISLANDS, TO ALSO SUPPORT ENLISTED MEMBERS OF THAT FORCE FOR THE REMAINDER OF THEIR LIVES AT A SUBSTANTIAL RETIRED PAY AFTER THEY WERE AFFORDED SUCH EMPLOYMENT FOR 30 YEARS. THE RETIREMENT OF ENLISTED MEN OF THE PHILIPPINE SCOUTS IS NOT AUTHORIZED EVEN BY THE REMOTEST IMPLICATION OF THE LAWS.

YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER, WHICH WILL BE RETAINED IN THE FILES OF THIS OFFICE.