« ForrigeFortsett »
ing the period in question formed a definite rule for fixing an allowance, and, being apparently just and reasonable, it can not be said to be unauthorized. In so far as the decision in 26 Comp. Dec., 195, is in conflict herewith, it will not be followed.
RELEASE FROM ACTIVE DUTY-ARMY OFFICER. The assignment of a retired Army officer to active duty and his right to the
full pay and allowances of his grade by virtue of act of May 18, 1917, 40 Stat., 76, terminate upon the date of the order relieving him from active duty if the conditions named in the order are otherwise fulfilled, and the
date the officer receives the order is immaterial. Decision by Comptroller General McCarl, August 12, 1921:
Col. John A. Dapray, United States Army, retired, applied June 29, 1921, for revision of the action of the Auditor for the War Department in disallowing by settlement No. 99198, dated July 29, 1920, his claim for the active-duty pay and allowances of his grade January 27 to February 24, 1919, less retired pay received during the period, because of his failure to receive notice until February 24, 1919, of his relief from active duty by order dated January 24, 1919, at which date he was ill and not in actual performance of duty.
Claimant was placed on active duty by paragraph 337 of Special Orders, No. 208, dated War Department, Washington, D. C., September 5, 1918, as follows:
By direction of the President, Col. John A. Dapray, United States Army, retired, is relieved from duty as professor of military science and tactics at the Catholic University of America, Washington, D. C. He is assigned, under section 1, paragraph 3, act of Congress approved May 18, 1917, to active duty as commanding officer of the Students' Army Training Corps unit at that institution.
The statute cited, 40 Stat., 76, entitled "An act to authorize the President to increase temporarily the Military Establishment of the United States,” authorized the President, by paragraph 3, section 1, to secure officers for the increased forces therein provided, among other methods, “by assigning retired officers of the Regular Army to active duty with such force with their rank on the retired list and the full pay and allowances of their grade.”
Pursuant to the order of September 5, 1918, Col. Dapray took command of the unit of the Students' Army Training Corps at the university named. On or about November 29, 1918, he became ill and was confined to his home in the city of Washington for several months, being reported as “sick in quarters ” on the reports of his organization so long as it existed.
Claimant's command was during December, 1918, and January, 1919, demobilized, subordinate officers with the command were either relieved or discharged, and finally, on February 20, 1919, the contract of the contract surgeon employed for duty with the command was terminated. Claimant states that this contract surgeon is the last person upon whom the command of the organization devolved during his absence on account of illness. Because of inquiry by telephone in February from the Zone Finance Office as to his status claimant wrote The Adjutant General as to the matter and on February 24, 1919, received in response a copy of paragraph 154, Special Orders, No. 20–0, dated War Department, Washington, D. C., January 24, 1919, as follows:
Each of the following-named retired officers is relieved from duty at the institution specified after his name, and from further duty with the Committee on Education and Special Training, and will proceed to his home, and upon arrival there will report by telegraph to The Adjutant General of the Army. Each of the officers named is relieved from active duty, to take effect upon his arrival at his home: Colonel John A. Dapray, Catholic University of America, Washington, D. C.
Claim is for active-duty pay and allowances to the date of receipt of this order in the circumstances already indicated, and the contention is made that claimant was assigned to active duty until the actual receipt of the order relieving him therefrom.
The statute under which he was placed on active duty authorizes the full pay and allowances of his grade while assigned to active duty. It has been held, 8 Comp. Dec., 50, under the act of November 3, 1893, 28 Stat., 7, authorizing the full pay and allowances of their grade to retired officers detailed as professors of military science and tactics “ when so detailed” that they were entitled to the activeduty pay and allowances from the date of promulgation of the order so detailing them.
By the same reasoning, under a statute authorizing the full pay and allowances to retired officers assigned to active duty, active-duty pay accrues while so assigned, and only while so assigned, and the failure to receive notice of relief from active duty in the circumstances of this case can not continue the assignment of the officer to active duty.
The fact of assignment to active duty is established by the orders of the War Department. In this case the order of September 5, 1918, assigned claimant to active duty and the order of January 24, 1919, relieved him from active duty effective upon his arrival home. As claimant was then confined to his home because of illness the latter order might be construed as a relief from active duty on the date of its promulgation. However that may be, I shall not now question the allowance by the disbursing officer in paying claimant's January voucher of two days for the receipt of the order and compliance therewith.
Upon a review of the matter no differences are found and the settlement is sustained.
LONGEVITY PAY-NATIONAL GUARD SERVICE. An Army officer who entered the Federal service otherwise than through draft
with the National Guard, either as an officer or private, before July 9, 1918, is entitled under the act of that date, 40 Stat., 875, to count prior service in the National Guard or State militia for the purpose of computing longevity pay from July 9, 1918, until the date of the act of June 4, 1920, 41 Stat., 785, which act limits credit for longevity pay purposes to active-duty service under appointment from the United States Government
in the Regular, provisional, or temporary forces. Decision by Comptroller General McCarl, August 16, 1921:
Richard J. Arnold, of 2380 Fairfax Street, Denver, Colo., applied July 22, 1921, for revision of the action of the Auditor for the War Department in the settlement (No. 758096, dated April 14, 1921) disallowing his claim for longevity pay as a commissioned officer of Infantry, National Army.
The adjutant general of the State of New York has certified as follows:
This is to certify that according to the records of this office Richard J. Arnold enlisted in Co. B, 23rd Infantry, National Guard, N. Y., April 2, 1906; promoted corporal Nov. 1, 1909; full and honorable discharge, January 2, 1912.
The military records on file in the War Department Division of this office show that he enlisted September 22, 1917, at Camp Upton, N. Y., as private in Company C, Three hundred and fifth Infantry; promoted sergeant November 1, 1917; left the United States for foreign service April 16, 1918, and was discharged in France July 12, 1918, to accept commission as second lieutenant, National Army; and that he was paid on said discharge as of the first enlistment period up to and including July 12, 1918.
The following is an extract from Special Orders, No. 182, General Headquarters, American Expeditionary Forces, France, dated July 1, 1918:
Pursuant to authority contained in War Department cable No. 1431, May 31, 1918, the following-named graduates of the Third Officers' Training School are temporarily appointed second lieutenants, National Army, as of June 1, 1918, subject to confirmation by the War Department, and will report as indicated therein for assignment to duty: * * * To commanding general 28th Division, for assignment to Infantry: R. J. Arnold, sergeant, Co. C., 305th Inf. * * * The travel directed is necessary in the military service. By command of General Pershing.
By Col. Stanton, disbursing officer, Quartermaster Corps (voucher 3918), said Arnold was paid as second lieutenant of less than five years of service from July 13 to 31, 1918, inclusive, and in said voucher over his signature is his certificate in writing, as follows:
I certify that I have accepted a commission as 2nd Lt, Infantry, N. A., July 13, 1918.
He was promoted to first lieutenant, effective November 9, 1918, arrived in the United States May 30, 1919, and was honorably discharged from the service August 31, 1920. He was paid as an officer of less than five years of service.
Claimant contends that in computing his pay under laws relating to increase of pay for length of service his State service in the Na. tional Guard, covering a period of five years, nine months, and one day, should be counted, and that during the period of his service as & commissioned officer he should be paid the longevity pay to which an officer of over five years and less than ten years of service is entitled.
Prior to July 9, 1918, only those officers and enlisted men who were in the Federal service by way of draft with the National Guard were entitled to count prior National Guard or Organized Militia State service in computing increase of pay based on length of seryice. 24 Comp. Dec., 120, 292, 560.
The act of July 9, 1918, 40 Stat., 875, provides : Longevity Pay for men other than the Regular Army: That officers and enlisted men of the forces of the Army of the United States other than the Regular Army who have had service in the National Guard and Organized Militia of any State, Territory, or District but who have entered the service in the forces of the Army of the United States, otherwise than through draft under the provisions of section one hundred and eleven of the Act of June third, nineteen hundred and sixteen, known as the national defense Act, shall be on the same footing as to pay and allowance as the members of said forces who were drafted under the provisions of said section.
The purpose of this act was to operate as a benefit to those who had entered the branches of the military service not excepted, other than by way of draft, before July 9, 1918. The words “but who have entered" limit and restrict and do not apply to the specified class who were not in the service on July 9, 1918. 27 Comp. Dec., 754. Claimant was in the service as an enlisted man on and before July 9, 1918, and during the period from July 9 to 12, 1918, is entitled to
f of ($47.60 less $44.) $3.60, amounting to 48 cents, continuousservice pay, being pay as of the second enlistment period less the pay of the first enlistment period he received for that time.
Having been in the service continuously from a date prior to July 9, 1918, his right to count for longevity pay purposes his State service in the National Guard continued on his promotion and appointment as second lieutenant.
For the period from July 13, 1918, to November 8, 1918, during which he served as second lieutenant in foreign service, counting the prior service as an enlisted man in the National Guard and in the Federal service there is on account of longevity pay a credit of $60.24, being 3 months at ($171.41, less $155.83 paid) $15.58 per month.
And for the period from November 9, 1918, to May 30, 1919, during which he was a first lieutenant in foreign service, there is on account of longevity pay a credit of $123.45, being 6 months at ($201.66% less $183.33% paid) $18.333 per month.
Section 11 of the act of May 18, 1920, 41 Stat., 604, contains a proviso as follows:
Provided, That hereafter longevity pay for officers in the Army, Navy, Marine Corps, Coast Guard, Public Health Service, and Coast and Geodetic Survey shall be based on the total of all service in any or all of said services.
This provision of law which became effective on May 18, 1920, indicates the service which shall be credited in computing longevity pay; and the service therein contemplated is active duty or service on the active list. Prior State service must be excluded. 27 Comp. Dec., 287. There is, however, a saving clause embodied in said act as section 14, 41 Stat., 604, which reads as follows:
Sec. 14. That nothing contained in this Act shall operate to reduce the pay or allowances of any officer or enlisted man on the active or retired list: Provided, That the allowances and gratuities now authorized by existing law are not changed hereby, except as otherwise specified in this Act.
This saved to said Arnold the right in the computation of longevity pay to continue to count his prior service in the National Guard until June 4, 1920, when by the sixth paragraph of section 127a of the act of June 4, 1920, 41 Stat., 785, Congress declared
In determining * • increase of pay for length of service, * * *, active duty performed while under appointment from the United States Government, whether in the Regular, provisional, or temporary forces, shall be credited to the same extent as service under a Regular Army commission.
This excludes service that is not Federal service on the active list, and precludes payment of longevity pay in this case for any time on or after June 4, 1920. 27 Comp. Dec., 290.
By reading section 49 of the Army reorganization act of June 4, 1920, 41 Stat., 784, in connection with the longevity pay paragraph of the act of July 9, 1918, it seems clear that it is only those who enter the service in the forces of the Army of the United States in time of war, to serve during the war, who are entitled to count their prior State service on the active list in the National Guard in computing increase of pay for length of service. 27 Comp. Dec., 248.
For the period from May 31, 1919, to June 3, 1920, during which he was a first lieutenant serving in the United States, there is on account of longevity pay a credit of $201.59, being 12 months at $16.66 per month. The sum of the credits, 48 cents, $60.24, $123.45, and $201.59 hereinbefore stated, is $385.76.
The settlement is reversed.
vice under an are our temporary United States G
RETAINER PAY-FLEET NAVAL RESERVE.
Enlisted men who enter the Fleet Naval Reserve by transfer from the Regular
Navy are limited by the act of August 29, 1916, 39 Stat., 590, to retainer pay computed upon the base pay they were receiving at the close of their Jast naval service plus all permanent additions, and are not entitled, therefore, to count for retainer pay purposes previous service in the Marine Corps for which they were not entitled to credit in computing their pay while in the Regular Navy.