B-143540, AUG. 23, 1960

B-143540, AUG. 23, 1960

TO COLONEL JOHN A. O-KEEFE, AGC (RET):

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1960, IN WHICH YOU REQUEST, IN EFFECT, RECONSIDERATION OF YOUR CLAIM FOR DIFFERENCE IN RETIRED PAY BETWEEN THAT OF COLONEL AND THAT OF BRIGADIER GENERAL FROM MAY 31, 1951, DISALLOWED BY THIS OFFICE MAY 8, 1958.

YOUR LETTER STATES THAT THOMAS J. GRAYSON, WHO WAS THE PLAINTIFF IN THE CASE OF GRAYSON V. UNITED STATES, 137 CT.CL. 779, SERVED AS BRIGADIER GENERAL IN THE MISSISSIPPI NATIONAL GUARD. SINCE YOU ALSO SERVED AS BRIGADIER GENERAL IN THE MISSISSIPPI NATIONAL GUARD, YOU BELIEVE THAT THE DECISION IN THE GRAYSON CASE ALSO APPLIES TO YOU, AND THAT YOU ARE ENTITLED TO RETIRED PAY COMPUTED ON THE GRADE OF BRIGADIER GENERAL, THE HIGHEST GRADE IN WHICH YOU SERVED SATISFACTORILY. IN SUBSTANTIATION OF YOUR SATISFACTORY SERVICE, YOU ENCLOSED A MEMORANDUM DATED MAY 18, 1960, FROM MR. HARRY H. WOODRING, FORMER SECRETARY OF WAR, WHICH INDICATES THAT HE DETERMINED YOUR SERVICE AS BRIGADIER GENERAL HAD BEEN SATISFACTORY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, 10 U.S.C. 1002 (1952 ED.) PROVIDED FOR RETIRED PAY FOR A COMMISSIONED OFFICER TO BE COMPUTED ON THE HIGHEST TEMPORARY GRADE IN WHICH HE SATISFACTORILY SERVED ON ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS DURING THE PERIOD FROM SEPTEMBER 9, 1940, TO JUNE 30, 1946; THAT YOUR APPOINTMENT AS BRIGADIER GENERAL TERMINATED ON OR ABOUT JANUARY 4, 1940, AND THAT DURING YOUR TERM OF OFFICE AS BRIGADIER GENERAL, YOU SERVED A TOTAL OF 60 DAYS ON ACTIVE DUTY.

SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085 PROVIDED, AS FOLLOWS:

"EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICER'S RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT RETIRED PAY OF SUCH HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST.'

THE OFFICIAL NATIONAL GUARD REGISTER (1943) SHOWS, ON PAGE 886 THEREOF, THAT YOU SERVED AS BRIGADIER GENERAL OF THE MISSISSIPPI NATIONAL GUARD FROM JANUARY 22, 1936, TO NOVEMBER 19, 1939, AND AS LIEUTENANT COLONEL COMMENCING NOVEMBER 20, 1939. EXTENDED ACTIVE FEDERAL SERVICE COMMENCED JUNE 16, 1940, AT WHICH TIME YOU WERE A LIEUTENANT COLONEL. YOU WERE PROMOTED TO COLONEL, AUS, EFFECTIVE AUGUST 7, 1942. A STATEMENT OF SERVICE FORWARDED BY THE DEPARTMENT OF THE ARMY SHOWS THAT FROM JANUARY 22, 1936, TO NOVEMBER 19, 1939, YOU SERVED ON ACTIVE DUTY AS OLLOWS: AUGUST 9-23, 1936; JULY 6-20, 1937; JULY 31-AUGUST 14, 1938; JULY 2-16, 1939 AND NOVEMBER 13-18, 1939, FOR A TOTAL OF 66 DAYS. YOU DID NOT SERVE AS BRIGADIER GENERAL DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, NOR DID YOU SERVE ON ACTIVE DUTY IN THAT GRADE FOR A PERIOD OF SIX MONTHS. THEREFORE, YOU WERE NOT ELIGIBLE FOR ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF BRIGADIER GENERAL OR FOR RETIRED PAY COMPUTED ON THAT GRADE. SEE 37 COMP. GEN. 538. THE DELETION OF THE WORDS "DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946," FROM SUBSECTION 203 (A) OF THE 1948 ACT BY THE ACT OF MAY 31, 1956, 70 STAT. 222, DOES NOT PROVIDE ANY BASIS FOR ALLOWANCE OF ANY PORTION OF YOUR CLAIM, SINCE YOU DID NOT SERVE ON ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL FOR A PERIOD OF SIX MONTHS.

ACCORDINGLY, THE DISALLOWANCE OF MAY 8, 1958, WAS CORRECT AND IS SUSTAINED.