B-126123, MAR. 27, 1956

B-126123, MAR. 27, 1956

TO MAJOR IRVING E. PUGH, AUS, RETIRED:

YOUR LETTER OF NOVEMBER 1, 1955, REQUESTS REVIEW OF SETTLEMENT DATED APRIL 4, 1955, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL DISABILITY RETIRED PAY. YOU CONTEND THAT OUR DECISIONS, B-102149, DATED AUGUST 13, 1951 (31 COMP. GEN. 28), AND B-106458, DATED DECEMBER 14, 1951 (31 COMP. GEN. 213), PROVIDE ADEQUATE AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. THERE WAS ALSO RECEIVED YOUR LETTER OF NOVEMBER 26, 1955, REGARDING THE MATTER.

YOU WERE RELIEVED FROM ACTIVE DUTY EFFECTIVE APRIL 14, 1946, BY REASON OF PHYSICAL DISABILITY AND YOU WERE CERTIFIED FOR RETIREMENT PAY EFFECTIVE APRIL 15, 1946, PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 3, 1939, AS A MAJOR WITH OVER 24 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, INCLUDING 8 YEARS' ACTIVE SERVICE AND SERVICE PRIOR TO NOVEMBER 12, 1918. IT HAS BEEN DETERMINED THAT YOU WERE 40 PERCENT DISABLED AT THE TIME YOU WERE RETIRED OR GRANTED RETIREMENT PAY.

THERE IS ENCLOSED A COPY OF THE DECISION OF AUGUST 13, 1951, TO WHICH YOU REFER, IN WHICH IT WAS CONCLUDED THAT AN OFFICER WHO RETIRED AFTER SEPTEMBER 30, 1949, COULD HAVE HIS DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AND, IN ADDITION, RECEIVE THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THAT DECISION HELD, ALSO, THAT A MEMBER RETIRED PRIOR TO OCTOBER 1, 1949, COULD NOT RECEIVE THE BENEFIT OF THE HIGHER RATES OF PAY AUTHORIZED IN THE CAREER COMPENSATION ACT OF 1949 AND ALSO RECEIVE THE BENEFITS OF THE FOURTH PARAGRAPH OF THE CITED SECTION 15. IT WAS OBSERVED IN THE DECISION THAT WHILE THE CONCLUSIONS REACHED MIGHT SEEM TO DISCRIMINATE BETWEEN OFFICERS RETIRED BEFORE OCTOBER 1, 1949, AND THOSE RETIRED ON OR AFTER THAT DATE, IT APPEARED THAT SUCH DISCRIMINATION AS MAY EXIST WAS FORESEEN BY THE CONGRESS. SINCE YOU WERE RETIRED PRIOR TO OCTOBER 1, 1949, YOU MAY NOT, FOR THE REASONS SET FORTH IN THE DECISION OF AUGUST 13, 1951, RECEIVE THE BENEFIT OF THE HIGHER RATES OF PAY AUTHORIZED IN THE CAREER COMPENSATION ACT OF 1949 AND ALSO RECEIVE THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

THE CITED DECISION OF DECEMBER 14, 1951, TO WHICH YOU ALSO REFER PERTAINS TO A MEMBER WHOSE NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OR AFTER OCTOBER 1, 1949, AND WOULD HAVE NO BEARING ON YOUR CASE SINCE YOU WERE RETIRED PRIOR TO THAT DATE.

UNDER THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, YOU WERE RECEIVING RETIREMENT PAY AT THE RATE OF $336.88 A MONTH (75 PERCENT OF THE PAY AUTHORIZED FOR A MAJOR WITH OVER 24 YEARS' SERVICE, OR $449.17) AS OF SEPTEMBER 30, 1949. UNDER THE PROVISIONS OF SECTIONS 411 AND 511 OF THE CAREER COMPENSATION ACT OF 1949 (QUOTED IN PERTINENT PART IN THE ENCLOSED DECISION OF AUGUST 13, 1951), YOU WOULD HAVE BEEN ENTITLED AS OF OCTOBER 1, 1949, UNDER THE RATES OF PAY AUTHORIZED BY THE 1949 ACT TO RETIRED PAY AT THE RATE OF $199.50 A MONTH BASED ON THE PERCENTAGE OF YOUR DISABILITY AT THE TIME YOU WERE RETIRED (40 PERCENT OF THE PAY AUTHORIZED FOR A MAJOR WITH OVER 22 BUT LESS THAN 26 YEARS' SERVICE, OR $498.75), OR $99.75 A MONTH BASED ON YOUR 8 YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT (20 PERCENT OF $498.75). THUS, AS OF OCTOBER 1, 1949, YOU WERE NOT ENTITLED TO RETIRED PAY AT A RATE IN EXCESS OF $336.88 A MONTH AND SINCE YOU WERE IN RECEIPT OF RETIREMENT PAY AT THAT RATE THERE IS NO AUTHORITY FOR THE PAYMENT OF ADDITIONAL DISABILITY RETIRED PAY ON THE BASIS OF YOUR MILITARY SERVICE.