June 28, 1940 (referred to by the Committee), numerous reemployments in those Departments were effected the day following separation for retirement. Moreover, in discussing this measure Senator Norris quoted the provision regarding reemployments and asked for its meaning. The following is quoted from the Congressional Record of January 19, 1942, page 467:

"Mr. NORRIS. I should like to read a little further. What does this language mean: 'Unless the appointing authority determines that he is possessed of special qualifications, in which event payment of his annuity shall be terminated during the period of his appointment.'

"I do not quite understand what that means."

"Mr. MEAD. That means that although the employee has arrived at the age of 70, when his annuity begins

"Mr. NORRIS. Yes.

"Mr. MEAD. The annuity can be terminated at the same instant if his immediate superior, or any superior, for that matter, over him in the department wishes to retain his services and notifies the retirement commission that the employee has special qualifications. Therefore his annuity at 70 is suspended until he retires, say, at 75, and if during the intervening years his annuity benefits have been raised by law he will, when he retires at 75, enjoy the increased benefits which may have accrued during his 5 years of added service.

"Mr. NORRIS. Does it mean, then, that if he should retire, let us say, at the age of 75, he would not get the benefit of any increase to which his additional service had entitled him-he would get the same benefit as though he had retired at the age of 70?

"Mr. MEAD. He would get the benefit of any increase that resulted from legislation, and he would get the actuarial benefit resulting from his increased years of service. He would have, then, 5 years more of his own contributions to enjoy as well as 5 years more of the Government's payments to him.

"Mr. NORRIS.

Would he have to go through the formality of being reappointed? "Mr. MEAD. Not necessarily; no.

"Mr. NORRIS. The bill says, reading further from the amendment:

Any such person whose annuity is terminated

I do not understand that it is actually terminated. It is merely suspended; is it not?

Any such person whose annuity is terminated shall, upon the termination of his appointment

What appointment does that mean?

"Mr. MEAD. It means his subsequent continuation in the service.

"Mr. NORRIS. Then, that is construed to be an appointment, I should judge. "Mr. MEAD. That is correct; and we use the word 'terminated' because it applies more generally to all the others who have gone out of the service, who will not come back into the service. It is merely technical language. The information given to the committee by the retirement experts was that it covers the case we had in mind-the case of the man with special talent or special qualifications-and it adds to the authority of the President to continue him in the service the authority of his superior.

*

Your decision as to whether an employee separated for retirement under the provisions of section 1 of the Civil Service Retirement Act as amended by the act of January 24, 1942 may be reemployed the following day under the terms of section 2 (b) of the said act, or whether there must be an actual break in service during which an annuity is paid, is respectfully requested.

The requirement of a break in service would involve a useless expenditure of time and effort in adjudicating applications for annuity, and payments for short periods, which will be immediately terminated upon reemployment.

For purposes of this case it is desirable to quote here in its entirety section 2 of the act of January 24, 1942, Public Law 411, 56 Stat. 14, as follows:

SEC. 2. Strike out all of section 2 of the act of May 29, 1930, as amended, and insert in lieu thereof the following:

"(a) Except as provided in section 204 of the act of June 30, 1932 (47 Stat. 404), and section 3 of the act of July 13, 1937 (50 Stat. 512), all officers or employees to whom this act applies shall, on the last day of the month in which they attain retirement age as defined in the preceding section; and having rendered at least fifteen years of service, be automatically separated from the service, and all salary, pay, or compensation shall cease from that date, and it

shall be the duty of the head of each department, branch, or independent office of the Government concerned to notify each such employee under his direction of the date of his separation from the service at least sixty days in advance thereof: Provided, however, That no provision of this or any other act relating to automatic separation from the service shall have any application whatever to any elective officer.

"(b) No person separated from the service who is receiving an annuity under the provisions of section 1 of this act shall be eligible again to appointment to any appointive office, position, or employment under the United States or of the Government of the District of Columbia unless the appointing authority determines that he is possessed of special qualifications, in which event payment of his annuity shall be terminated during the period of his appointment. Any such person whose annuity is terminated shall, upon the termination of his appointment, have his subsequent annuity rights determined under the provisions of law in effect at the time of such termination." [Italics supplied.]

Section 204 of the act of June 30, 1932, 47 Stat. 404, provides, in pertinent part, as follows:

On and after July 1, 1932, no person rendering civilian service in any branch or service of the United States Government or the municipal government of the District of Columbia who shall have reached the retirement age prescribed for automatic separation from the service, applicable to such person, shall be continued in such service, notwithstanding any provision of law or regulation to the contrary: Provided, That the President may, by Executive Order, exempt from the provisions of this section any person when, in his judgment, the public interest so requires:

Said provision of the statute was amended by section 3 of the act of July 13, 1937, 50 Stat. 513, entitled, "An act to extend the benefits of the Civil Service Retirement Act of May 29, 1930, as amended, to certain employees in the legislative and judicial branches of the Government," as follows:

The provisions of section 2 of such act of May 29, 1930, and of section 204 of the Economy Act of June 30, 1932, and any Executive orders pursuant thereto, relating to automatic separation, shall not apply to any officer or employee to whom the provisions of such act are extended by this act, nor hereafter to employees of the Office of the Architect of the Capitol.

Under these provisions of law which were in force prior to January 24, 1942, and which were continued in force by express provisions of section 2 (a) of said 1942 act, an officer or employee subject to retirement who otherwise would have been automatically separated from the service by reason of age could have been retained in the service beyond the age of retirement only by the President through the issuance of an Executive order. Of course, officers and employees for whom no "retirement age" was "prescribed [by statute] for automatic separation from the service" (quoting from sec. 204 of the act of June 30, 1932, supra) were not required to be separated automatically from the service upon reaching any particular age. As a result of those provisions of law there are now in the service officers and employees who, prior to January 24, 1942, had attained the age of 70, the age fixed by the new retirement act for automatic separation of all classes of personnel (see sec. 1) including those who were not, and could not have been, subjected to the provisions of section 204 of the act of June 30, 1932, as amended, prior to January 24, 1942, but who

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now are subject to the provisions of section 2 of the retirement act, as amended by the act of January 24, 1942 (see sec. 3), and to the provisions of section 204 of the act of June 30, 1932, as amended. Of course, said section 2 of the statute is applicable, also, to officers and employees who were, prior to the act, subject to retirement and whose retention in the service beyond retirement age prior to January 24, 1942, could have been authorized only by the President through issuance of an Executive order.

When the above italicized portion of section 2 (b) is considered in connection with section 2 (a) its intended meaning is not clear from its terms alone. Furthermore, a literal construction of the terms used would result in a vain and useless procedure amounting to an absurdity. Hence, there appears justified here a reference to the legislative history of the enactment, particularly to the committee report and the debates, to determine the legislative intent. (See Blake v. National City Bank, 23 Wall. 307; United States v. Dickerson, 310 U. S. 554; United States v. American Trucking Association, 310 U. S. 534.) In the last cited decision, wherein the Supreme Court of the United States referred to the congressional committee reports and the debates on the floor of the Senate as aids in construction of the statute, the court stated:

There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the Act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of the legislation as a whole" this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination."

The portion of the committee report quoted in your letter specifically states that "This provision would enable the Government to retain in its employ or to call back into service persons of outstanding ability and long experience in a particular field." (Italics supplied.) The portions of the debates on the bill quoted in your letter show clearly that the member who had charge of the bill on the floor of the Senate for the Senate committee which had considered and reported the bill understood the provision in question as not requiring any actual break in service or the elapsing of so much as a day between the automatic separation for retirement purposes and the reappointment. Also, this view would appear to have been the basis upon which was issued that portion of Civil Service Commission Retirement Circular No. 100, dated January 29, 1942, reading as follows:

REEMPLOYMENT OF ANNUITANTS

An officer or employee retired under the age or optional provision of the law may be reemployed only in the event the appointing authority determines that

he is possessed of special qualifications. If an annuitant is reemployed under this authority his annuity is terminated, but he again becomes subject to the retirement law with a new retirement right under the law in effect at the time of subsequent separation from service. The Commission should be immediately notified of any such reemployment. In case the person is immediately reemployed, the records (including Retirement Account, Form 2806) should be properly noted, as for example, "Retired (age) March 31, 1942," "Reemployed April 1, 1942, under Act of January 24, 1942." Reappointment of an annuitant to the position from which retired may be made without prior approval of the Civil Service Commission, but reappointment to another position must be governed by the law and regulations applicable thereto. [Italics supplied.]

In the light of the foregoing, I have to advise that I would not construe section 2 (b) of the statute in question as requiring that there be an actual break in service, or period for which an annuity is payable, before an employee separated for retirement under the provisions of section 1 of the Civil Service Retirement Act, as amended by the 1942 statute, may be reemployed under the terms of section 2 (b) of said latter act. In other words, I agree that under the said statute an employee may be separated from the service effective on the last day of one month and reemployed effective on the first day of the succeeding month.

(B-22712)

PAY-RETIRED ARMY ENLISTED MEN-COMPUTATION UNDER ACT, JUNE 30, 1941

Under section 3 of the act of June 30, 1941, requiring the retired pay of Army enlisted men who are retired under section 2 of said act for disability after 20 years' service to be computed on the basis of the average pay received for 6 months prior to retirement, there should be included in determining such average pay any pay received as a specialist during said 6-month period even though a specialist's rating be not held at the time of retirement.

Under section 3 of the act of June 30, 1941, requiring the retired pay of Army enlisted men who are retired under section 2 of said act for disability after 20 years' service to be computed on the basis of the average pay received for 6 months prior to retirement, the retired pay of an enlisted man who has had a break in service during the 6 months immediately preceding retirement and who was able-bodied on his last enlistment should be computed on the basis of the average pay for his last 6 months of actual service, and not the 6 calendar months immediately prior to retirement. Assistant Comptroller General Elliott to Col. W. M. Dixon, United States Army, February 26, 1942:

There has been considered your letter of December 9, 1941, as follows:

Attached is a voucher covering difference in retired pay to enlisted men retired for disability after twenty years' service, which is before the undersigned, a disbursing officer, for payment.

The Act of Congress approved June 30, 1941 (Pub. Law 140, 77th Cong.) provides that when an enlisted man is placed on the retired list pursuant thereto, "he shall receive 75 per centum of the average pay he was receiving for six months prior to his retirement, plus a money allowance of $9.50 per month in lieu of rations and clothing, and $6.25 per month in lieu of quarters, fuel and light."

Private William H. Goodhart, serial No. R-150,252, served as private first class, specialist sixth class, for the period February 1-July 15, 1941, and as private from July 16-September 30, 1941. He has been paid as private (grade 7) with over twenty years' service for the period October 1-November 30, 1941, in the amount $43.87 per month. Payment was made on vouchers No. 29871 and 50333, respectively, November 1941 accounts of the undersigned.

Private Herbert Lake, serial No. R-351,745, served as a sergeant from February 10-June 22, 1941, and as private from June 23-September 30, 1941. He has been paid as private (grade 7) with over twenty years' service for the period October 1-November 30, 1941, in the amount $43.87 per month. Payment was made on vouchers No. 29871 and 50333, respectively, November 1941 accounts of the undersigned.

Technical Sergeant Leonard Bristow, serial No. R-325,993, served as staff sergeant from October 1, 1940-April 9, 1941, and as technical sergeant from April 10-September 30, 1941. He has been paid as staff sergeant (grade 3) with over twenty years' service, for the period October 1-November 30, 1941, in the amount $83.25 per month. Payment was made on vouchers No. 29871 and 50333, November 1941 accounts of the undersigned.

Private first class, specialist second class, John F. Reeve, serial No. R-129,943, served as private first class, specialist fourth class, from March 3, 1941-May 30, 1941, as private first class, specialist second class from June 1September 30, 1941. He has been paid as private first class, specialist fourth class (grade 6) with over twenty years' service, for the period October 1November 30, 1941, in the amount $63.56 per month. Payment was made on voucher No. 9125, December 1941 accounts of the undersigned.

Private first class, specialist sixth class, William Gilliland, serial No. R-585,496, served as private first class, specialist fourth class, from September 3, 1940-November 26, 1940; as private (grade 7) from November 27, 1940December 24, 1940. As indicated by the attached copy of letter from The Adjutant General under date December 3, 1941, he was out of the service from December 25, 1940-May 2, 1941. From May 3, 1941-May 19, 1941, he served as private (grade 7) and from May 20, 1941-September 30, 1941, as private first class, specialist sixth class. He has been paid as private (grade 7) with over twenty years' service, for the period October 1-November 30, 1941, in the amount $43.87 per month. Payment was made on Voucher No. 10898, December 1941 accounts of the undersigned.

As the undersigned is in doubt as to the proper method of computation of retired pay under the above-mentioned act of Congress your decision in the cases set forth is respectfully requested.

S. 239, Seventy-seventh Congress (H. R. 2277), appears to have been introduced at the request of the War Department and originally provided in section 3 that enlisted men retired under the provisions of section 2 shall receive 75 per centum of the pay they were receiving immediately prior to retirement. Section 3 was amended by the House Committee on Military Affairs in order to prevent an increase in the rank of enlisted men with attendant increase in pay immediately preceding their retirement. As amended the bill was enacted into law as Public No. 140, approved June 30, 1941, 55 Stat. 394, sections 2, 3, 5, and 6 thereof being as follows:

SEC. 2. An enlisted man of the Regular Army or of the Philippine Scouts who has served twenty years or more in the military forces of the United States and who has become permanently incapacitated for active service due to physical disability incurred in line of duty shall be placed on the retired list. SEC. 3. When an enlisted man is placed on the retired list pursuant to the provisions of the next preceding section he shall receive 75 per centum of the average pay he was receiving for six months prior to his retirement plus a money allowance of $9.50 per month in lieu of rations and clothing and $6.25 per month in lieu of quarters, fuel and light: Provided, That the money allowances of enlisted men of the Philippine Scouts placed on the retired list under this Act shall be the same as those heretofore or from time to time hereafter