B-149487, APRIL 3, 1967, 46 COMP. GEN. 727

B-149487, APRIL 3, 1967, 46 COMP. GEN. 727

PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - PERMANENT V. TEMPORARY RANK THE RULE IN FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, THAT A MEMBER OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY LIST, SHOULD BE ADVANCED TO THE HIGHEST GRADE OR RANK IN WHICH THE MEMBER PREVIOUSLY SERVED SATISFACTORILY, WHETHER THE GRADE OR RANK WAS TEMPORARY OR PERMANENT, IS APPLICABLE RETROACTIVELY NOT ONLY TO THE DISABILITY SEVERANCE PAY CASES UNDER 10 U.S.C. 1212 (A) (2) (B) (II), BUT ALSO TO THE CASES WITHIN THE PURVIEW OF 10 U.S.C. 1372 (2), NOTWITHSTANDING THE SECTION LIMITS THE ADVANCEMENT OF A MEMBER RETIRED FOR DISABILITY TO THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH IT IS DETERMINED HE SERVED SATISFACTORILY. 46 COMP. GEN. 17, MODIFIED. PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - AIR CORPS TERMINATION DATE IN APPLYING THE FRIESTEDT RULE, 173 CT. CL. 447, NOON ON SEPTEMBER 26, 1947, IS THE DATE ON WHICH THE AIR CORPS CEASED TO BE AN INTEGRAL PART OF THE ARMY AND BECAME A PART OF THE UNITED STATES AIR FORCE, FOR THE PURPOSE OF DETERMINING SATISFACTORY SERVICE UNDER 10 U.S.C. 1372. PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - ARMY SERVICE OF AIR FORCE RETIREE FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, HOLDING THAT A HIGHER GRADE HELD IN A BRANCH OF THE ARMY OTHER THAN THE AIR CORPS BEFORE THE ESTABLISHMENT OF THE UNITED STATES AIR FORCE AT NOON ON SEPTEMBER 26, 1947, MAY BE CONSIDERED IN DETERMINING THE GRADE OF A MEMBER RETIRING FROM THE AIR FORCE UNDER 10 U.S.C. 1372, THE CONCLUSION IN B-134566, FEBRUARY 28, 1958, IS MODIFIED TO THE EXTENT THAT SATISFACTORY SERVICE PERFORMED BY A MEMBER OF THE UNIFORMED SERVICES IN A HIGHER GRADE IN THE ARMY PRIOR TO SEPTEMBER 26, 1947, WHILE THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY, MAY BE DETERMINED TO BE SATISFACTORY BY THE SECRETARY OF THE AIR FORCE UPON THE SUBSEQUENT RETIREMENT OF THE MEMBER. PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - BRANCH OF SERVICE OTHER THAN FROM WHICH RETIRED THE CONCLUSION IN FRIESTEDT V. UNITED STATES, 173 CT. CL. 447, THAT A MEMBER OF THE UNIFORMED SERVICES WHO SERVED IN A HIGHER GRADE IN A BRANCH OF THE ARMY OTHER THAN THE AIR CORPS BEFORE SEPTEMBER 26, 1947, THE EFFECTIVE DATE OF THE ESTABLISHMENT OF THE UNITED STATES AIR FORCE, MAY HAVE THAT SERVICE CONSIDERED IN DETERMINING HIS GRADE UPON RETIRING FROM THE AIR FORCE UNDER 10 U.S.C. 1372, WARRANTS MODIFICATION OF 33 COMP. GEN. 10 ONLY TO THE EXTENT THAT THE SATISFACTORY SERVICE PERFORMED IN A HIGHER GRADE IN THE ARMY WHILE THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY MAY BE CERTIFIED BY THE SECRETARY OF THE AIR FORCE FOR THE PURPOSE OF A HIGHER RETIRED GRADE AND RETIRED PAY IN THE CASE OF A MEMBER RETIRED FROM THE AIR FORCE FROM AND AFTER SEPTEMBER 26, 1947. THEREFORE, 33 COMP. GEN. 10 CONTINUES IN EFFECT AS TO ALL OTHER MEMBERS WHO FORMERLY SERVED IN A BRANCH OF THE SERVICE OTHER THAN FROM WHICH RETIRED OR SEPARATED.

TO THE SECRETARY OF DEFENSE, APRIL 3, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 7, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), PRESENTING FOR DECISION SEVERAL ADDITIONAL QUESTIONS CONCERNING THE EFFECT TO BE GIVEN TO THE HOLDING IN THE CASE OF FRIESTEDT V. UNITED STATES, 173 CT. CL. 447. THESE ADDITIONAL QUESTIONS AND THE DISCUSSION PERTAINING THERETO ARE SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 392 RECEIVED AS AN ENCLOSURE.

IN DECISION OF JULY 8, 1966, 46 COMP. GEN. 17, THIS OFFICE CONSIDERED THREE QUESTIONS PRESENTED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 374. THE FIRST OF THOSE THREE QUESTIONS AS TO WHETHER THE RULE OF THE FRIESTEDT CASE SHOULD BE APPLIED "TO ALL DISABILITY RETIREMENTS TO WHICH 10 U.S.C. 1372 (2) IS APPLICABLE" WAS ANSWERED IN THE AFFIRMATIVE. THE SECOND QUESTION AS TO WHETHER THE FRIESTEDT RULE PROPERLY COULD BE APPLIED TO OTHER STATUTORY PROVISIONS SUCH AS 10 U.S.C. 1212 (A) (2) (B) (II), 3963 (A), 3964, 6151, 8963 (A) AND 8964, WAS ANSWERED IN THE AFFIRMATIVE AS TO 10 U.S.C. 1212 (A) (2) (B) (II) ONLY.

THE THIRD QUESTION CONSIDERED IN THE DECISION OF JULY 8, 1966, WAS AS FOLLOWS:

3. IF THE ANSWER TO ONE OR BOTH OF THE FIRST TWO QUESTIONS IS YES, ARE OFFICERS AND ENLISTED MEN PREVIOUSLY RETIRED OR PAID SEVERANCE PAY UNDER THE CITED STATUTES IN GRADES BELOW THEIR HIGHEST PERMANENT GRADES ENTITLED TO RELIEF UNDER THE FRIESTEDT RULE? IT WAS HELD:

QUESTION 3 IS ANSWERED AFFIRMATIVELY AS TO THOSE CASES WHICH LIE WITHIN THE PURVIEW OF 10 U.S.C. 1212 (A) (2) (B) (II) AND IN THE NEGATIVE AS TO ALL OTHER CASES. THE FIRST QUESTION PRESENTED UNDER COMMITTEE ACTION NO. 392 IS:

1. IS THE FRIESTEDT RULE APPLICABLE TO MEMBERS PREVIOUSLY RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1372 (2), TITLE 10, U.S. CODE?

WITH RESPECT TO THE ABOVE QUESTION THE COMMITTEE ACTION DISCUSSION STATES:

WE UNDERSTAND THROUGH INFORMAL CONTACTS THAT IT WAS NOT THE COMPTROLLER GENERAL'S INTENT BY THIS ANSWER TO EXCLUDE DISABILITY RETIREMENT CASES UNDER 10 U.S.C. 1372 (2) FROM THE RETROACTIVE APPLICATION OF THE FRIESTEDT RULE. HOWEVER, WRITTEN CLARIFICATION OF THIS POINT WOULD BE HELPFUL IN SERVICE IMPLEMENTATION OF THIS RULE.

THE COMMITTEE'S UNDERSTANDING OF THE MATTER IS CORRECT. THE FRIESTEDT RULE IS APPLICABLE RETROACTIVELY NOT ONLY TO CASES WHICH AROSE UNDER 10 U.S.C. 1212 (A) (2) (B) (II), BUT ALSO TO THOSE CASES WHICH COME WITHIN THE PURVIEW OF 10 U.S.C. 1372 (2). THE ANSWER TO THE THIRD QUESTION IN DECISION OF JULY 8, 1966, IS AMENDED ACCORDINGLY. QUESTION 1 IN COMMITTEE ACTION NO. 392 IS, THEREFORE, ANSWERED IN THE AFFIRMATIVE.

THE SECOND QUESTION IN COMMITTEE ACTION NO. 392 IS:

2. IN APPLYING THE FRIESTEDT RULE, WHAT IS THE DATE ON WHICH THE COMPTROLLER GENERAL WILL CONSIDER THAT THE AIR CORPS CEASED TO BE AN INTEGRAL PART OF THE ARMY AND UNDER THE SAME COMMAND?

IT IS BELIEVED THAT THIS QUESTION WAS PROMPTED BY THE LANGUAGE OF THE COURT IN THE FRIESTEDT DECISION (SEE PAGE 4 OF THE SLIP OPINION OF NOVEMBER 12, 1965), AS FOLLOWS:

DEFENDANT THEN ARGUES THAT PLAINTIFF MUST FAIL BECAUSE THERE HAS BEEN NO DETERMINATION OF SATISFACTORY SERVICE. TRUE, THE AIR FORCE REGULATIONS PROVIDED, AND STILL PROVIDE, THAT SERVICE IN THE ARMY AND NAVY COULD NOT BE CONSIDERED IN DETERMINING SATISFACTORY SERVICE UNDER 10 U.S.C. SEC. 1372. WHILE THE AIR FORCE TODAY WOULD NOT LOOK TO PLAINTIFF'S ARMY SERVICE FOR A DETERMINATION OF SATISFACTORY SERVICE, AT THE TIME PLAINTIFF SERVED IN THE ARMY THE AIR CORPS (NOW THE AIR FORCE) WAS AN INTEGRAL PART OF THE ARMY AND UNDER THE SAME COMMAND. UNDER THESE CIRCUMSTANCES, WE THINK PLAINTIFF'S ARMY SERVICE COULD BE REVIEWED BY THE SECRETARY AND A DETERMINATION MADE AS TO WHETHER IT WAS SATISFACTORY OR NOT.

THE AIR CORPS CEASED TO BE AN INTEGRAL PART OF THE ARMY AND BECAME A PART OF THE UNITED STATES AIR FORCE EFFECTIVE AT NOON ON SEPTEMBER 26, 1947. SEE TRANSFER ORDER NO. 1 ISSUED SEPTEMBER 26, 1947, BY THE SECRETARY OF DEFENSE PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 208, NATIONAL SECURITY ACT OF 1947, CH. 343, 61 STAT. 503, AND PUBLISHED IN DEPARTMENT OF THE ARMY BULLETIN NO. 1, DATED NOVEMBER 12, 1947. QUESTION 2 IS ANSWERED ACCORDINGLY.

THE THIRD QUESTION IS AS FOLLOWS:

3. DOES THE FRIESTEDT CASE, AS INTERPRETED BY MS COMP. GEN. B 149487, 8 JULY 1966, OVERRULE THE HOLDING OF MS COMP. GEN. B-734566, 28 FEBRUARY 1958, THAT A HIGHER GRADE HELD IN A BRANCH OF THE ARMY OTHER THAN THE AIR CORPS BEFORE THE EFFECTIVE DATE OF THE ESTABLISHMENT OF THE U.S. AIR FORCE CANNOT BE CONSIDERED IN DETERMINING THE GRADE OF A MEMBER RETIRING FROM THE AIR FORCE UNDER 10 U.S.C. 1372?

IN THE DECISION OF FEBRUARY 28, 1958, B-134566, REFERRED TO IN QUESTION 3, IT WAS HELD THAT A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE OF SATISFACTORY TEMPORARY SERVICE IN THE CAVALRY, ARMY OF THE UNITED STATES, MAY NOT BE ACCEPTED AS AUTHORIZING INCREASED RETIRED PAY UNDER 10 U.S.C. 1372 (2). THE FRIESTEDT DECISION OF NOVEMBER 12, 1965, IS INCONSISTENT WITH THE CONCLUSION REACHED IN B 134566, FEBRUARY 28, 1958, SINCE IN THE LATTER CASE THE INDIVIDUAL CONCERNED (SERGEANT JONES) HAD PERFORMED TEMPORARY SERVICE IN THE HIGHER GRADE OF TECHNICAL SERGEANT, CAVALRY, ARMY OF THE UNITED STATES, DURING THE PERIOD JUNE 13, 1944, TO OCTOBER 21, 1945, WHILE THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY AND UNDER THE SAME COMMAND. THE DECISION OF FEBRUARY 28, 1958, IS MODIFIED TO THE EXTENT THAT SATISFACTORY SERVICE PERFORMED IN A HIGHER GRADE IN THE ARMY PRIOR TO SEPTEMBER 26, 1947, WHILE THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY MAY BE CERTIFIED BY THE SECRETARY OF THE AIR FORCE UPON THE SUBSEQUENT RETIREMENT OF SUCH AN INDIVIDUAL FROM THE AIR FORCE.

THE FOURTH QUESTION IS AS FOLLOWS:

4. ASSUMING AN AFFIRMATIVE ANSWER TO QUESTION 3, WOULD NOT THIS RESULT ALSO CONSTITUTE A PARTIAL MODIFICATION OF THE DECISION IN 33 COMP. GEN. 10 AND THUS, IN THE INTERESTS OF EQUITABLE TREATMENT OF THE MEMBERS OF ALL SERVICES, JUSTIFY A RECONSIDERATION OF THAT ENTIRE DECISION?

IN DECISION OF JULY 8, 1953, 33 COMP. GEN. 10, IT WAS HELD (QUOTING THE SYLLABUS):

A MEMBER OF THE UNIFORMED SERVICES, WHO IS RETIRED OR SEPARATED FROM THE SERVICE FOR PHYSICAL DISABILITY UNDER SECTION 402 (D) OR SECTION 403, OF THE CAREER COMPENSATION ACT OF 1949, AND WHO SATISFACTORILY HELD A HIGHER RANK, GRADE, OR RATING IN A BRANCH OF THE SERVICE OTHER THAN THAT FROM WHICH RETIRED OR SEPARATED, IS NOT ENTITLED TO RETIRED OR SEVERANCE PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE OR RATING.

THE DECISION OF JULY 8, 1953, IS MODIFIED ONLY TO THE EXTENT THAT SATISFACTORY SERVICE PERFORMED IN A HIGHER GRADE IN THE ARMY WHILE THE AIR CORPS WAS AN INTEGRAL PART OF THE ARMY MAY BE CERTIFIED BY THE SECRETARY OF THE AIR FORCE FOR PURPOSES OF HIGHER RETIRED GRADE AND RETIRED PAY IN THE CASE OF A MEMBER RETIRED FROM THE AIR FORCE FROM AND AFTER SEPTEMBER 26, 1947. WE FIND NOTHING IN THE FRIESTEDT CASE WHICH SUGGESTS THAT THE HOLDING IN 33 COMP. GEN. 10 SHOULD BE COMPLETELY OVERRULED. THIS IS A MATTER MORE PROPERLY FOR CONSIDERATION BY THE CONGRESS. VARIOUS BILLS WHICH WOULD HAVE ACCOMPLISHED THAT RESULT HAVE BEEN INTRODUCED OVER A PERIOD OF SEVERAL YEARS BUT NONE HAS BEEN ENACTED INTO LAW.