B-6653, DECEMBER 13, 1939, 19 COMP. GEN. 573

B-6653, DECEMBER 13, 1939, 19 COMP. GEN. 573

PAY AND ALLOWANCES - ACTIVE DUTY - RETIRED OFFICERS - EFFECT OF SAVING CLAUSE OF ACT OF JUNE 10, 1922 A MARINE CORPS OFFICER, RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, AND ON THE RETIRED LIST ON JUNE 30, 1922, THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, WAS, BY SECTION 17 OF SAID ACT SAVED HIS RIGHT TO BOTH ACTIVE AND RETIRED PAY ON THE BASIS OF PAY LAWS IN EFFECT ON JUNE 30, 1922, AND HIS "FULL PAY," WHICH SAID SECTION 17 PROVIDES FOR RETIRED OFFICERS "WHEN ON ACTIVE DUTY," IS THE FULL PAY BASED ON RETIRED PAY COMPUTED UNDER THE ACT OF MAY 11, 1908, 35 STAT. 108, AND SECTION 1262, REVISED STATUTES, WHERE HIGHER THAN THE PAY PROVIDED BY THE ACT OF JUNE 10, 1922, BUT THE "FULL * * * ALLOWANCES" UNDER THE TERMS OF SAID SECTION ARE THE ALLOWANCES PRESCRIBED BY THE ACT OF JUNE 10, 1922, FOR THE OFFICER'S RANK AND LENGTH OF SERVICE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF THE NAVY, DECEMBER 13, 1939:

THERE HAS BEEN RECEIVED YOUR REQUEST OF OCTOBER 18, 1939, FOR DECISION OF A QUESTION PRESENTED IN LETTER DATED OCTOBER 17, 1939, FROM THE PAYMASTER, HEADQUARTERS, UNITED STATES MARINE CORPS, AS FOLLOWS:

1. THERE IS BEFORE THIS OFFICE THE QUESTION AS TO WHAT IS THE PROPER PAY AND ALLOWANCES PAYABLE TO CAPTAIN DAVIS A. HOLLADAY, U.S. MARINE CORPS, RETIRED, WHILE EMPLOYED ON ACTIVE DUTY SINCE SEPTEMBER 27, 1939, AS A RESULT OF THE EXECUTIVE ORDER OF THE PRESIDENT, DATED SEPTEMBER 8, 1939, PURSUANT TO THE NATIONAL EMERGENCY PROCLAMATION OF THE SAME DATE.

2. THE RECORDS OF THIS OFFICE SHOW THAT DAVIS A. HOLLADAY ENROLLED IN THE MARINE CORPS RESERVE AS A SECOND LIEUTENANT ON APRIL 7, 1917, AND THAT HE REPORTED FOR DUTY ON MAY 25, 1917; DISENROLLED FROM THE MARINE CORPS RESERVE SEPTEMBER 10, 1917, TO ACCEPT A PROBATIONARY APPOINTMENT AS SECOND LIEUTENANT IN THE MARINE CORPS; ACCEPTED APPOINTMENT AS SECOND LIEUTENANT SEPTEMBER 11, 1917; TEMPORARILY PROMOTED A FIRST LIEUTENANT OCTOBER 3, 1917, WITH RANK FROM AUGUST 11, 1917; TEMPORARILY PROMOTED CAPTAIN SEPTEMBER 6, 1918, WITH RANK FROM JULY 1, 1918; RETIRED SEPTEMBER 29, 1919, FOR GUNSHOT WOUND, RIGHT KNEE, WHICH WOUND WAS RECEIVED IN ACTION AGAINST THE ENEMY JULY 19, 1918, IN THE AISNE-MARNE OFFENSIVE ( SOISSONS).

3. THE PRESIDENT OF THE UNITED STATES, UNDER DATE OF SEPTEMBER 29, 1919, PLACED THE FOLLOWING ENDORSEMENT ON THE RECORD OF PROCEEDINGS OF THE MARINE RETIRING BOARD:

"THE PROCEEDINGS AND FINDINGS OF THE RETIRING BOARD IN THIS CASE ARE APPROVED, AND CAPTAIN DAVIS A. HOLLADAY, U.S. MARINE CORPS, WILL BE RETIRED FROM ACTIVE SERVICE AND PLACED ON THE RETIRED LIST WITH THE RANK HE NOW HOLDS, THAT OF CAPTAIN, U.S.M.C., IN CONFORMITY WITH SECTIONS 1622 AND 1251 OF THE REVISED STATUTES, AND THE ACT OF MAY 22, 1917.'

4. CAPTAIN HOLLADAY HAS BEEN PAID UNDER THE ACT OF MAY 8, 1908, ON THE RETIRED LIST SINCE RETIREMENT, AND CREDITED WITH LONGEVITY INCREASES IN PAY UNDER THE ACT OF MARCH 2, 1903, WHICH PROVIDES, IN PART, "HEREAFTER, EXCEPT IN CASE OF OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, NO OFFICER NOW ON THE RETIRED LIST SHALL BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY, AND OFFICERS HEREAFTER RETIRED, EXCEPT AS HEREIN PROVIDED, SHALL NOT BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY ABOVE THAT WHICH HAD ACCRUED AT DATE OF THEIR RETIREMENT.'

5. SECTION 17 OF THE ACT OF JUNE 10, 1922, PROVIDES, IN PART, AS FOLLOWS:

"RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY BELOW THE GRADE OF BRIGADIER GENERAL OR COMMODORE AND RETIRED WARRANT OFFICERS AND ENLISTED MEN OF THOSE SERVICES, SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES.'

6. IT IS RECOMMENDED THAT THE COMPTROLLER GENERAL OF THE UNITED STATES BE REQUESTED TO DECIDE WHAT PAY (PERIOD AND LONGEVITY) AND ALLOWANCES MAY BE PROPERLY PAID TO CAPTAIN DAVIS A. HOLLADAY, U.S. MARINE CORPS, RETIRED, WHILE EMPLOYED ON ACTIVE DUTY IN ACCORDANCE WITH REFERENCE (A).

THE COPY OF REFERENCE (A) SHOWS THAT UNDER DATE OF SEPTEMBER 23, 1939, BY DIRECTION OF THE ACTING SECRETARY OF THE NAVY AND WITH HIS CONSENT, CAPT. DAVIS A. HOLLADAY, UNITED STATES MARINE CORPS, RETIRED, WAS ASSIGNED TO ACTIVE DUTY. IF, AS REPORTED, DAVIS A. HOLLADAY REPORTED FOR ACTIVE DUTY MAY 25, 1917, AND WAS RETIRED SEPTEMBER 29, 1919, FOR WOUNDS RECEIVED IN BATTLE, HIS TOTAL SERVICE, MAY 25, 1917, TO SEPTEMBER 29, 1919, ON THE ACTIVE LIST, AND SEPTEMBER 30, 1919, TO SEPTEMBER 22, 1939, ON THE RETIRED LIST, INACTIVE, AUTHORIZED TO BE COUNTED FOR LONGEVITY UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1903, 32 STAT. 932, IS 22 YEARS, 3 MONTHS, AND 28 DAYS.

UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE PAY OF AN OFFICER WITH THE RANK OF CAPTAIN LESS THAN 7 YEARS' SERVICE, BUT WHOSE PRESENT RANK DATES FROM JULY 1, 1920, OR EARLIER, WOULD BE THE BASE PAY OF THE THIRD PERIOD, $2,400 INCREASED BY 5 PERCENTUM FOR EACH 3 YEARS' SERVICE UP TO 30 YEARS, AND ALTHOUGH HIS PAY COULD BE INCREASED BY LONGEVITY UNDER THE ACT OF MARCH 2, 1903, 32 STAT. 932, HE COULD NEVER RECEIVE PAY OF THE FOURTH PERIOD UNLESS ASSIGNED TO ACTIVE DUTY. 7 COMP. GEN. 735; LEONARD V. UNITED STATES, 64 CT.1CLS. 384, AFFIRMED BY THE SUPREME COURT, 279 U.S. 40. THEREFORE, THE ACTIVE DUTY PAY OF CAPTAIN HOLLADAY, IF PAID UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1922, WOULD BE $2,400, INCREASED BY 35 PERCENTUM, FOR 7 PERIODS OF 3 YEARS, OR $3,240 PER YEAR OR $270 PER MONTH. ON JUNE 30, 1922, THE DAY BEFORE THE ACT OF JUNE 10, 1922, TOOK EFFECT, HE WAS PAID AT THE RATE OF $150 PER MONTH, BEING 75 PERCENTUM OF THE BASE PAY OF A CAPTAIN AS PROVIDED BY THE ACT OF MAY 11, 1908, 35 STAT. 108. UPON COMPLETION OF EACH PERIOD OF 5 YEARS' SERVICE CAPTAIN HOLLADAY HAS BEEN CREDITED WITH 10 PERCENTUM INCREASE IN HIS RETIRED PAY UNDER THE PROVISIONS OF SECTION 1262, REVISED STATUTES, AND SINCE MAY 24, 1937, THE DATE HE COMPLETED 20 YEARS' SERVICE, HIS RETIRED PAY HAS BEEN $210 PER MONTH, BEING 75 PERCENTUM OF $3,360 (BASE PAY FIXED BY ACT OF MAY 11, 1908, INCREASED BY 40 PERCENTUM).

WHERE AN OFFICER OF THE ARMY WAS ON THE RETIRED LIST JUNE 30, 1922, AND RECEIVING RETIRED PAY UNDER THE ACT OF MAY 11, 1908, AND SECTION 1262, REVISED STATUTES, AND THAT PAY IS HIGHER THAN PROVIDED FOR IN THE ACT OF JUNE 10, 1922, SECTION 17 OF THE ACT SAVES THE OFFICER'S RIGHT TO BOTH ACTIVE AND RETIRED PAY ON THE BASIS OF THE PAY LAWS IN EFFECT JUNE 30, 1922. SEE THE CASE OF RUDD V. UNITED STATES, 71 CT.1CLS. 432.

UNDER THE PROVISIONS OF SECTION 17 OF THE ACT OF JUNE 10, 1922, CAPTAIN HOLLADAY IS ENTITLED WHEN ON ACTIVE DUTY TO "RECEIVE FULL PAY AND ALLOWANCES.' HIS FULL PAY OR 100 PERCENTUM OF HIS RETIRED PAY IS $3,360 PER YEAR OR $280 PER MONTH. THE ALLOWANCES AUTHORIZED BY SECTIONS 5 AND 6 OF THE ACT OF JUNE 10, 1922, FOR OFFICERS OF THE SEVERAL SERVICES RECEIVING THE BASE PAY OF THE DIFFERENT PERIODS ARE PROVIDED FOR "EACH COMMISSIONED OFFICER ON THE ACTIVE LIST, OR ON ACTIVE Y.' THE ALLOWANCES TO WHICH AN OFFICER IS ENTITLED WHO IS RECEIVING SAVED PAY ARE THE ALLOWANCES PRESCRIBED BY THE ACT OF JUNE 10, 1922, FOR HIS RANK AND LENGTH OF SERVICE ON JUNE 30, 1922. ROCKWOOD V. UNITED STATES, 60 CT.1CLS. 829. SINCE CAPTAIN HOLLADAY HELD HIS PRESENT RANK ON JULY 1, 1920, OR EARLIER, HIS PAY PERIOD UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 10, 1922, WOULD BE THE THIRD; HE IS THEREFORE ENTITLED TO THE ALLOWANCES PRESCRIBED BY SECTIONS 5 AND 6 OF THE ACT OF JUNE 10, 1922, FOR OFFICERS RECEIVING THE BASE PAY OF THE THIRD PERIOD.