B-150358, DEC. 31, 1962

B-150358, DEC. 31, 1962

TO CAPTAIN DORLAND H. KONICHEK, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 12, 1962, WITH ENCLOSURE, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL DISABILITY RETIRED PAY FROM OCTOBER 1, 1954, WHICH WAS DISALLOWED BY SETTLEMENT OF OCTOBER 11, 1962.

IT APPEARS THAT YOU WERE TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE COAST AND GEODETIC SURVEY ON OCTOBER 1, 1954, WITH A DISABILITY RATING OF 60 PERCENT. YOU WERE ADVISED OF YOUR RIGHT TO A CHOICE OF ALTERNATIVE METHODS OF COMPUTING RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 818. UNDER METHOD A YOUR RETIRED PAY, BASED ON YEARS OF SERVICE, AMOUNTED TO $364.57, COMPUTED BY MULTIPLYING THE BASIC PAY OF A COMMANDER WITH OVER 26 YEARS SERVICE FOR BASIC PAY PURPOSES ($607.62) BY THE NUMBER OF YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT (24 YEARS BY 2 1/2 PERCENT EQUALS 60 PERCENT). UNDER METHOD B, BASED ON PERCENTAGE OF DISABILITY, YOUR RETIRED PAY ALSO WAS $364.57, SINCE YOUR PERCENTAGE OF PHYSICAL DISABILITY HAD BEEN DETERMINED AS 60 PERCENT AND THE BASIC PAY WAS THE SAME AS UNDER METHOD A. ALTHOUGH THE TWO METHODS RESULTED IN THE SAME RETIRED PAY, AN ELECTION WAS REQUIRED AND YOU ELECTED METHOD B, RETIRED PAY COMPUTED ON THE BASIS OF PERCENTAGE OF PHYSICAL DISABILITY.

YOU WERE TRANSFERRED FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE OCTOBER 1, 1959, IN ACCORDANCE WITH TITLE 10, U.S. CODE, SECTION 1201 AND 1210, BUT WITH A DISABILITY RATING OF 50 PERCENT. YOU WERE INFORMED THAT UNDER THE PROVISIONS OF SAID SECTION 1401, YOU WERE ENTITLED TO AN ELECTION BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF YEARS OF SERVICE OR PERCENTAGE OF DISABILITY. YOU ELECTED RETIRED PAY COMPUTED ON THE BASIS OF YEARS OF SERVICE, AS FOLLOWS: THE MONTHLY BASIC PAY OF A COMMANDER WITH OVER 26 YEARS SERVICE ($670.80) MULTIPLIED BY 2 1/2 PERCENT OF 24 YEARS ACTIVE SERVICE (60 PERCENT), PLUS THE SIX PERCENT INCREASE PROVIDED BY SECTION 4 OF THE ACT OF MAY 20, 1958, PUB.L. 85 422, 72 STAT. 128, TOTALLING $42.63 MONTHLY.

YOU CONTEND THAT THE COMPUTATIONS OF YOUR RETIRED PAY FROM OCTOBER 1, 1954, ON THE BASIS OF YEARS OF SERVICE FAILED TO CREDIT YOU WITH THREE YEARS OF INACTIVE ENLISTED SERVICE IN THE NORTH DAKOTA NATIONAL GUARD, AND THAT IF SUCH SERVICE HAD BEEN INCLUDED, THE PERCENTAGE MULTIPLIER WOULD HAVE BEEN 67 1/2 PERCENT. YOU STATE THAT IF YOU HAD BEEN PROPERLY ADVISED YOU WOULD HAVE ELECTED METHOD A WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND THAT YOUR CURRENT RETIRED PAY ON THE PERMANENT DISABILITY RETIRED LIST SHOULD ALSO BE COMPUTED AT 67 1/2 PERCENT. IT APPEARS FROM A CERTIFICATE DATED FEBRUARY 12, 1943, EXECUTED BY THE ASSISTANT ADJUTANT GENERAL, STATE OF NORTH DAKOTA, THAT THE RECORDS OF THE NORTH DAKOTA NATIONAL GUARD SHOW THAT YOU HAD INACTIVE ENLISTED SERVICE IN COMPANY F, 165TH INFANTRY, NORTH DAKOTA NATIONAL GUARD, FROM JUNE 6, 1924, THROUGH JUNE 5, 1927. IT ALSO APPEARS THAT YOU HAD CERTAIN ARMY OFFICERS' RESERVE CORPS SERVICE, OF WHICH 14 DAYS WERE ACTIVE DUTY, AS WELL AS 24 YEARS AND 2 MONTHS OF ACTIVE DUTY IN THE COAST AND GEODETIC SURVEY.

THE SETTLEMENT OF OCTOBER 11, 1962, DISALLOWED YOUR CLAIM ON THE BASIS THAT YOUR ACTIVE SERVICE TOTALLED ONLY 24 YEARS (FOR PERCENTAGE MULTIPLE PURPOSES), AND THERE WAS NO AUTHORITY TO COMPUTE YOUR RETIRED PAY AT 67 1/2 PERCENT.

YOUR ATTENTION IS INVITED TO THE FACT THE PERCENTAGE MULTIPLE USED IN COMPUTING DISABILITY RETIRED PAY BY THE YEARS OF SERVICE METHOD PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, WAS DETERMINED BY MULTIPLYING 2 1/2 PERCENT BY "A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE.'

THE TERM "ACTIVE SERVICE" WAS DEFINED IN SECTION 412 OF THE 1949 ACT, FOR MEMBERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES, AS INCLUDING:

"* * * ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL TIME TRAINING OR OTHER FULL-TIME DUTY * * *.'

SINCE INACTIVE NATIONAL GUARD SERVICE WAS NOT INCLUDED IN THAT DEFINITION, SUCH SERVICE WAS NOT CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLIER FACTOR IN COMPUTING DISABILITY RETIRED PAY UNDER TITLE IV OF THE 1949 ACT. HOWEVER, SUCH INACTIVE SERVICE WAS CREDITABLE IN DETERMINING BASIC PAY.

IT THUS APPEARS THAT YOU WERE CORRECTLY ADVISED CONCERNING TEMPORARY DISABILITY RETIRED PAY AND THAT YOU WERE CORRECTLY PAID ON THE BASIS OF YOUR SERVICE.

YOU WERE TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST PURSUANT TO SECTIONS 1210 (B) AND 1201 OF TITLE 10, U.S.C. WITH RETIRED PAY COMPUTED UNDER FORMULA NO. 1, OF SECTION 1401, WHICH PROVIDES IN SO FAR AS PERTINENT HERE THAT THE MEMBER'S MONTHLY BASIC PAY COMPUTED AT THE RATE APPLICABLE ON DATE OF RETIREMENT, ADJUSTED TO REFLECT LATER CHANGES IN APPLICABLE PERMANENT RATES) BE MULTIPLIED, AS THE MEMBER MAY ELECT, BY (1) 2 1/2 PERCENT OF YEARS OF SERVICE CREDITED TO HIM UNDER SECTION 1208; OR (2) THE PERCENTAGE OF DISABILITY ON DATE WHEN RETIRED. SECTION 1208, REFERRED TO ABOVE, PROVIDES IN PERTINENT PART:

"SEC. 1208. COMPUTATION OF SERVICE

"/A) FOR THE PURPOSE OF THIS CHAPTER, A MEMBER OF A REGULAR COMPONENT SHALL BE CREDITED WITH THE SERVICE DESCRIBED IN CLAUSE (1) OR THAT DESCRIBED IN CLAUSE (2), WHICHEVER IS GREATER:

"/1) THE SERVICE THAT HE IS CONSIDERED TO HAVE FOR THE PURPOSE OF SEPARATION OR MANDATORY ELIMINATION FROM THE ACTIVE LIST.

"/2) THE SUM OF---

"/A) HIS ACTIVE SERVICE AS A MEMBER OF THE ARMED FORCES * * *

"/B) HIS ACTIVE SERVICE AS A MEMBER OF THE COAST AND GEODETIC SURVEY OR IN THE PUBLIC HEALTH SERVICE; AND

"/C) HIS SERVICE WHILE PARTICIPATING IN EXERCISES OR PERFORMING DUTIES UNDER SECTIONS 502, 503, 504, AND 505 OF TITLE 32. * * *.'

IT WILL BE NOTED THAT HERE AGAIN ONLY ACTIVE SERVICE IS CREDITABLE IN THE COMPUTATION OF THE PERCENTAGE MULTIPLIER FACTOR. IT APPEARS THAT YOUR PERMANENT DISABILITY RETIRED PAY HAS BEEN COMPUTED ON THE BASIC PAY OF A COMMANDER WITH OVER 26 YEARS SERVICE, MULTIPLIED BY 2 1/2 PERCENT TIMES THE NUMBER OF YEARS OF ACTIVE SERVICE, PLUS APPROPRIATE INCREASES,IN ACCORDANCE WITH APPLICABLE STATUTES.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 11, 1962, DISALLOWING YOUR CLAIM FOR ADDITIONAL RETIRED ..END :