#### EDWIN A. JONAS, v. THE UNITED STATES.

[No. 33674.

Decided February 25, 1918.]

*On the Proofs.*

*Army officers; longevity pay; statutes.*— Congress by tbe act of June 3, 1916, 39 Stat., 183 gave to retired officers of tbe Army detailed on active duty the longevity pay which would accrue to them by reason of their added active service after retirement, which pay they could not theretofore receive by reason of the act of March 2, 1903, 32 Stat., 932.

*The Reporter's*statement of tbe case:

*Mr. George A. King*for tbe plaintiff. *King da King*were on the briefs.

*Mr. Richard P.*~WKiteley, with whom was *Mr. Assistant Attorney General Huston*Thompson, for tbe defendants.

The first question which presents itself is whether a marine officer is entitled to promotion on the retired list by reason of service on active duty since retirement under the act of June 3, 1916, 39 Stat., 183, or under the act of August 29, 1916, 39 Stat., 581, and the second question is whether he is entitled to credit for increased longevity pay by reason of said active service after retirement under said acts.

Upon the presentation of the claim of an Army officer under the act of June 3, 1916, the Comptroller decided that said act provided only for the promotion of officers on the retired list who had served a sufficient length of time on active duty, but did not entitle them to increased longevity pay by reason of such service after retirement. This decision was based upon the ground that the act of June 3, 1916, does not expressly or by necessary implication repeal or modify any part of the act of March. 2, 1903, 32 Stat., 932, which provides:

“ That hereafter, except in cases of officers retired on account of wounds received in battle, no officer now on the *255retired list stall 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.”

Later, upon the presentation of the claim of a retired marine officer serving on active duty after retirement, the Comptroller held that the promotion of the said officer on the retired list by reason of such active duty service was provided for in the naval appropriation act of August 29, 1916, and not in the Army act of June 3,1916. 23 Comp. Dec. 289.

This court decided in the case of *Jonas*v. *United States,*50 C. Cls. 281, that the Marine Corps looks to Army statutes for its rate of pay and to the Navy for its laws and regulations, except where detached for service with the Army; and that section 1622, Revised Statutes, which provides for retirement of commissioned officers of the Marine Corps and says that they shall be retired in like cases and in the same manner under like conditions in all respects as are provided for officers of the Army, simply provides for the retirement of an officer of the Marine Corps, but in no way changes the jurisdiction to which he is subject or the conditions under which he may again be placed on active duty; and that when so retired the officer is subject to the laws and regulations established for the government of the Navy, R. S. 1621.

Under this decision the Judge Advocate General of the Navy and the Comptroller in his last-mentioned decision held that while a marine officer’s rate of pay is regulated by Army law, his right to promotion on the retired list for active duty service after retirement is to be found in the laws established for the government of the Navy — namely, in this instance, the act of August 29, 1916, and not in the laws established for the government of the Army, act of June 3, 1916.

However the previous question may be decided, the further question remains as to whether the plaintiff is entitled to any longevity increase under either of the said acts and prior to the act of May 21, 1917, which expressly provided that such longevity should be allowed.

*256The act of March 2, 1903, quoted, prohibits the payment of any increase in longevity pay to officers after retirement; and it has been .very recently held by this court, reaffirming a former decision, that longevity pay must be conferred by statute and not by judicial construction. *Teamans*v. *United*States, 52 C. Cls. 388, and reaffirming *Bowie*v. *United*States, 45 C. Cls. 48.

Under these decisions defendants contend that any longevity pay was expressly cut off from retired officers. That is. for any service on the retired list they did not become entitled to any longevity increase unless it should b.e so expressly provided in the later statute. The acts of June 3, 1196, and August 29, 1916, as the Comptroller points out, make no mention .of longevity increase, but merely provide for the promotion on the retired list of said officers and give them- the rank, pay, and allowances of the higher grade; this, of course, subject to any limitations of law. On May 12,1917, 40 Stat., 48, Congress expressly extended longevity increases to retired officers detailed to active duty, and since that time the plaintiff has received the said increases. This act is referred to by counsel as legislative construction of the acts of the preceding year, and as showing that Congress intended to confer increased longevity pay in the Army and Navy acts of 1916. It can as well be contended that the passage of the provision in the act of May 12,1917, expressly conferring longevity increases was a recognition and approval of the decision of the Comptroller that the 1916 acts had not conferred longevity increases, and a determination to make such provision.

Per Curiam:

The act of March 2, 1903, 32 Stat., 932, provides:

> “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 has accrued at the date of their retirement.”

*257The act of June 3, 1916, 39 Stat., 183, provides as follows:

> “ *And provided*further, That hereafter any retired officer who has been or shall be detailed on active duty, shall receive the rank, pay, and allowances of the grade, not above that of major, that'he would have attained in due course of promotion if he had remained on the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed on active duty since his retirement.”

The purpose of the provision in the act of June 3, 1916, was to increase the pay of retired officers who are detailed on active duty, as well as to provide for the promotion of certain grades of officers on the retired list who are detailed on active duty. A major on the retired list with 10 years’ service on the active list to his credit under the act of March 2,1903, supra, could not receive any longevity pay for service on active duty after his retirement from the active list, nor could any other officer of any grade after his retirement be allowed or receive any longevity pay for service performed after his retirement. Congress was advised of this law and sought by the act of June 3, 1916, to give to the retired officer detailed on active duty the pay which he might have earned by years of service on active duty after his retirement.

Longevity pay is an inherent part of the pay of an officer which he earns by service. It is fixed by law. A statute which provides that a retired officer detailed on active duty shall receive the pay of the grade that he would have attained in due course of promotion if he had remained oh the active list for a period beyond the date of his retirement equal to the total amount of time during which he has been detailed on active duty must intend to give him the pay which he would have received if he had never been retired. Otherwise the statute would have no meaning. The fact that an officer was a major on the retired list when he was detailed on active duty would not under this statute prevent him from earning by his active service the longevity pay provided therein for retired officers when detailed on active duty.

Judgment will therefore be entered for plaintiff in the sum of $284.17. And it is so ordered.