and enlisted men of the National Guard drafted into the service of the United States shall have the same pay and allowances as officers and enlisted men of the Regular Army of the same grade and the same prior service, construed to mean the same length of service in the Organized Militia or National Guard. (1917) 24 Comp. Dec. 120. Officers so drafted are entitled to count all service on the active list in the Organized Militia or National Guard, whether as officers or enlisted men, for the purpose of computing longevity pay. Id. Enlisted men so drafted are entitled to count all continuous service on the active list in the Organized Militia or National Guard for the purposes of continuous-service pay from and after Aug. 5, 1917; but service on the reserve list, whether under State laws or under sec. 69 of the act of June 3, 1916, may not be so counted, except to determine the continuity of active service. Id. The right to count prior State service on the active list in the National Guard or Organized Militia for the purpose of the longevity increase of pay remains with officers of the National Guard entitled thereto whenever in the Federal service without regard to the continuity of such service. (1918) 25 Comp. Dec. 66. Volunteer service.-Under sec. 15, act of July 5, 1838 (5 Stat. 258) which provided that every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the Army of the United States, in connection with sec. 1, act of Mar. 2, 1867 (14 Stat. 434), which provided that "in computing the length of service of any officer of the Army, in order to determine what allowance and payment of additional or longevity ration he is entitled to," there should be taken into consideration his service as a commissioned officer either in the Regular Army or, since April 19, 1861, in the volunteer service, it was held that service in the volunteer forces during the Mexican War could not be included in computing his right to such longevity ration. U. S. v. Sweeny (1895), 15 Sup. Ct. 608, 157 U. S. 281, 39 L. Ed. 702. Militia officers.-An officer of State militia is not entitled to longevity pay, under this section, for the period during which he was an officer of such militia, for serv ice with his organization with a part of the Regular Army, at an encampment authorized by 2574, post. Bowie v. U. S. (1909), 45 Ct. Cl. 42. Effect of discharge from service.-The discharge of an officer of the Army does not take effect, so as to relieve the Government from its obligations, until he is notified of the fact and actually discharged from service. Gould v. U. S. (1884), 19 Ct. Cl. 593. Computation.-Since the passage of sec. 1641, post, the method of computing current year, under this section, has been as prescribed thereby. Plummer v. U. S. (1912), 32 Sup. Ct. 467, 469, 224 U. S. 137, 56 L. Ed. 697, reversing (1909), 45 Ct. Cl. 614. This section was not affected in principle by 1641, post, which simply provides a numerical measure of compensation. La Tourette v. U. S. (1891), 26 Ct. Cl. 296. 66 The method of computing longevity pay is not by taking one-tenth of the officer's fixed annual pay, but one-tenth of his current yearly pay "; 1. e., his second longevity pay will include 10 per cent of his first longevity pay, etc., subject, however, to the provision of 1638, post. Tyler v. U. S. (1880), 16 Ct. Cl. 223. Longevity pay.-Longevity pay is founded upon the equivalent of increased judgment and capacity acquired by the experience of continued service. Brown v. U. S., 18 Ct. Cls. 545. Acts authorizing longevity pay are remedial statutes, and officers are entitled to a liberal interpretation of them, the language used being given as broad a meaning as Congress may be presumed to have intended. Hendee v. U. S., 22 Ct. Cls. 134; 19 id. 153. See also notes to 1641 and 1643, post. 1638. Maximum rate of longevity pay.-The total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of the grade as provided by law. R. S. 1263. See notes to 1639, post. 1639. Maximum pay for colonel, lieutenant-colonel, and major.-In no case shall the pay of a colonel exceed five thousand dollars a year; the pay of a lieutenant-colonel exceed four thousand five hundred dollars a year, or the pay of a major exceed four thousand dollars a year. R. S. 1267, as amended by act of May 11, 1908 (35 Stat. 108), making appropriations for the support of the Army. This section, as enacted in the Revised Statutes, was as follows: "In no case shall the pay of a colonel exceed four thousand five hundred dollars a year, or the pay of a lieutenant-colonel exceed four thousand dollars a year." For temporary increase in these grades, see 1628, ante. Notes of Decisions. Retired pay.-A retired officer is only entitled, by 1648, post, to receive 75 per cent of the sum which he was entitled to receive upon the active list at the time of his retirement. Marshall v. U. S. (1888), 124 U. S. 391, affirming (1885), 20 Ct. Cl. 370; affirmed on rehearing (1888), 131 U. S. 391; Roberts v. U. S. (1874), 10 Ct. Cl. 283. 1640. Service as cadet not to be counted toward longevity. That hereafter the service of a cadet who may hereafter be appointed to the United States Military Academy or to the Naval Academy shall not be counted in computing for any purpose the length of service of any officer of the Army. Sec. 6, act of Aug. 24, 1912 (37 Stat. 594), making appropriations for the support of the Army. 1641. Service in the Navy included in computing longevity pay.-For * additional pay to officers for length of service, to be paid with their current monthly pay, and the actual time of service in the Army or Navy, or both, shall be allowed all officers in computing their pay: Provided, That from and after the first day of July, eighteen hundred and eighty-two, the ten per centum increase for length of service allowed to certain officers by section twelve hundred and sixty-two of the Revised Statutes shall be computed on the yearly pay of the grade fixed by sections twelve hundred and sixty-one and twelve hundred and seventy-four of the Revised Statutes; * Act of June 30, 1882 * * (22 Stat. 118), making appropriations for the support of the Army. R. S. 1261 and 1262, mentioned in this provision, prescribing rates of pay for various grades of officers, are set forth, 1627, 1637, ante, and R. S. 1274, also mentioned therein, providing that retired officers should receive 75 per cent of the pay of the rank upon which they were retired, is set forth, 1648, post. Notes of Decisions. See, also, notes to 1637, ante, and 1643, post. Actual time of service-Service as cadet in Military Academy.-Prior to the enactment of 1640, ante, time spent in the Military Academy by a cadet had to be considered as actual time of service in the Army, in computing his increase of pay. U. S. v. Morton (1884), 5 Sup. Ct. 1, 3, 112 U. S. 1, 28 L. Ed. 613, affirming 19 Ct. Cl. 200; U. S. v. Watson (1889), 9 Sup. Ct. 430, 130 U. S. 80, 32 L. Ed. 852; (1889) 19 Op. Atty. Gen. 439; contra, see (1881) 17 Op. Atty. Gen. 93. Service as civil engineer.-Where an officer served as an assistant civil engineer in the employ of the War Department on the Florida coast and elsewhere, the actual time of his service in that capacity should not be allowed in computing his longevity pay. (1881) 17 Op. Atty. Gen. 93. Service as clerk and messenger.-Employment as clerk and messenger in the quartermaster's and subsistence depart ments is not "service in the army," within the meaning of this section. Schreiner v. U. S. (1908), 43 Ct. Cl. 480, distinguishing U. S. r. Hendee, 124 U. S. 309. Reopening settlement.-See (1889) 19 Op. Atty. Gen. 439, * Provided, 1642. Longevity pay based on service outside the Army.— 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. Sec. 11, act of May 18, 1920 (41 Stat. 604). 1643. Service as enlisted man and in volunteer forces to be included in computing longevity.--That on and after the passage of this act, all officers of the Army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men in computing their service for longevity pay and retirement. * * Sec. 7, act of June 18, 1878 (20 Stat. 150). Notes of Act is prospective in operation.--(1883) 17 Op. Atty. Gen. 555, 560. Officers included-Service as enlisted men. The term "enlisted men," in this section, refers only to certain classes of enlisted men, including Indian scouts and hospital stewards. It refers only to those officers who have risen from the ranks. It does not include cadets at the Military Academy, Babbitt v. U. S. (1880), 16 Ct. Cl. 202; (1878) 16 Op. Atty. Gen. 611. And see U. S. v. Babbitt (1881), 104 U. S. 767, 768, 26 L. Ed. 921. During the war of the rebellion. The phrase "during the war of the rebellion," in this section, is a limitation upon the provisions thereof only with respect to of ficers of the Army who have served as officers in the volunteer forces. It does not apply to those officers of the Army who have served as enlisted men in either the volunteer or regular forces. Hence, in computing the service of officers of the latter description for longevity pay and retirement, service performed by them as enlisted men previous to the war of the rebellion must be taken into account. (1878) 16 Op. Atty. Gen. 611. Retired officers.--This section makes no discrimination against officers on the retired list. Tyler v. U. S. (1880), 16 Ct. Cl. 223. Decisions. Longevity pay.-An officer once in actual service, under color of office, is entitled to have the time credited to him in the computation of longevity pay. Gould v. U. S.. 19 Ct. Cls. 593. The time of actual service is to be credited to an officer in the computation of his longevity pay, without regard to a defect in his title to the office. Palen v. U. S., 19 id. 389. Service as chaplain prior to the act of Mar. 2, 1867 (14 Stat. 423), can be reckoned in computing longevity pay, chaplains being in the military service prior to that date. U. S. v. LaTourette, 151 U. S. 572. Service as a contract surgeon can not be reckoned in such computation. Byrnes v. U. S., 26 Ct. Cls. 302; Hendee v. U. S., 124 U. S., 309. Before the passing of the act of July 28, 1866, as well as afterwards, the corps of cadets of the Military Academy was a part of the Army of the United States, and a person serving as a cadet was serving in the Army; and the time during which a person has served as a cadet was, therefore, actual time of service by him. In the line of the Army. Morton v. U. S. 112 U. S., 1, 7. 1644. Service in the National Guard, etc., to be included in computing longevity pay. 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 upon the same footing as to pay and allowance as the members of said forces who were drafted under the provisions of said section. Act of July 9, 1918 (40 Stat. 875). See notes to 1637, ante. But see 1694, post. 1645. Longevity pay of retired officers.-- ** Provided, That 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. Act of Mar. 2, 1903 (32 Stat. 932), making appropriations for the support of the Army. See notes to 1637, ante. 1646. Longevity pay of retired officers detailed to active duty.-Provided, further, That hereafter any retired officer of the Army who has been detailed to active duty, and who has since his retirement, served on active detail shall be entitled to increases of longevity pay to be computed as provided by existing statute for the computation of longevity pay, for the time of his service before retirement and on active detail since his retirement. Act of May 12, 1917 (40 Stat. 48), making appropriations for the support of the Army. 1647. Bonus paid to wholly retired officers.-Officers wholly retired from the service shall be entitled to receive, upon their retirement, one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement. R. S. 1275. But see 2406, post. 1648. Rate of pay of retired officers.-Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired. R. S. 1274. * Provided further, That the increases provided in this Act shall not enter into the computation of the retired pay of officers or enlisted men who may be retired prior to July 1, 1922: * Sec. 13, act of May 18, 1920 ** * (41 Stat. 604). See 2406, post. For status of officers retired before the separation of the Field and Coast Artillery, see 2436, post. See, also, notes to 1637, ante. Notes of Decisions. Nature of pay.-An officer on the retired list owes no service to the Government, and his retired pay is an honorary form of pension. Geddes v. U. S. (1903), 38 Ct. Cl. 428. Pay always follows rank; but rank is not an office. Cloud v. U. S. (1907), 43 Ct. Cl. 69. Amount of pay. This section intended three-fourths of the full pay the retired officer was entitled to receive when retired, and not three-fourths of allowances which * * he was debarred from receiving by 1638, 1639, ante. Roberts v. U. S. (1874), 10 Ct. Cl. 283. And see Tyler v. U. S. (1880) 16 Ct. Cl. 223; Wood v. U. S. (1883), 2 Sup. Ct. 551, 554, 107 U. S. 414, 27 L. Ed. 542; Marshall v. U. S. (1888), 8 Sup. Ct. 520, 124 U. S. 391, 31 L. Ed. 475; Marshall v. U. S. (1885), 20 Ct. Cl. 370. The President can not fix by the order of retirement a rate of pay different from that provided by this section, (1878) 15 Op. Atty. Gen. 442, 1649. Officers over forty-five years of age when originally appointed. Any person originally appointed under the provisions of this Act at an age greater than forty-five years shall, when retired, receive retired pay at the rate of 4 per centum of active pay for each complete year of commissioned service in the United States Army, the total to be not more than 75 per centum. Sec. 24, act of June 3, 1916 (39 Stat. 182-183), as amended by sec. 24, act of June 4, 1920 (41 Stat. 771). * * * 1650. Retired officers of Philippine Scouts.-- * * * 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. * Sec. 22a, added to the act of ** June 3, 1916, by sec. 22, act of June 4, 1920 (41 Stat. 770). By sec. 26, act of June 3, 1916 (39 Stat. 185), retirement of officers of the Philippine Scouts with the retired pay and allowances of master signal electricians of the Army, was provided for. That section was stricken out by sec. 26, act of June 4, 1920 (41 Stat. 775). 1651. Rate of pay of retired officers while on active duty.— * * Hereafter retired officers below the grade of brigadier general and retired warrant officers and enlisted men shall, when on active duty, receive full pay and allowances. Sec. 40b, added to the act of June 3, 1916, by sec. 33, act of June 4, 1920 (41 Stat. 777). Sec. 24, act of June 3, 1916 (39 Stat. 183), as amended by sec. 4, act of July 9, 1918 (40 Stat. 890), provided that retired officers on active duty should receive the rank, pay and allowances of the grade, not above colonel, that they would have attained in due course of promotion had they remained on the active list for a period beyond the date of their retirement equal to the total amount of time during which they had been detailed on active duty since their retirement. This provision was stricken out by sec. 24, act of June 4, 1920 (41 Stat. 771). Said sec. 24, as originally enacted, also provided that in time of war retired officers on active duty should receive the full pay and allowances of their grades. 1652. Active duty pay of retired officers above the grade of major.— * Provided, That retired officers of the Army above the grade of major, heretofore or hereafter assigned to active duty, shall hereafter receive their full retired pay and shall receive no further pay or allowances from the United States: Act of Mar. 2, 1905 (33 Stat. 831). For provision now applicable to all officers below grade of brigadier general, see 1651, ante. 1653. Pay of retired officers detailed to educational institutions.-Provided, That the Act approved November third, eighteen hundred and ninety-three, authorizing the detail of officers of the Army and Navy to educational institutions, be amended so as to provide that retired officers, when so detailed, shall receive the full pay and allowances of their rank, except that the limitations on the pay of officers of the Army above the grade of major as provided in the Acts of March second, nineteen hundred and five, and June twelfth, nineteen hundred and six, shall remain in force. Act of Mar. 3, 1909 (35 Stat. 738), amending act of Nov. 3, 1893 (28 Stat. 7). For the provisions of act of Mar. 2, 1905, mentioned as limiting the pay of officers above the grade of major, see 1652, ante. Act of June 12, 1906, also mentioned, was superseded by sec. 24, act of June 3, 1916 (39 Stat. 183), which was amended by sec. 4, act of July 9, 1918 (40 Stat. 890), and stricken out by sec. 24, act of June 4, 1920 (41 Stat. 771). See 1651, ante. 1654. Pay of supernumerary officer when discharged at his own request.Provided further, That any officer who is supernumerary to the permanent organization of the Army as provided by law may, at his own request, be honorably discharged from the Army, and shall thereupon receive one year's pay for each five years of his service, but no officer shall receive more than three years' pay in all: Act of June 30, 1882 (22 Stat. 118), * * * making appropriations for the support of the Army. |