B-154368, JAN. 7, 1965

B-154368, JAN. 7, 1965

TO LIEUTENANT COLONEL BENJAMIN F. DIES, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER RELATIVE TO YOUR RETIRED PAY STATUS WHICH WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 4, 1964, B- 154368, 44 COMP. GEN. ----.

YOU TRANSMITTED A COPY OF A LETTER DATED NOVEMBER 26, 1962, FROM THE DIRECTORATE OF MILITARY PERSONNEL ADVISING YOU THAT AN OPINION HAD BEEN RECEIVED FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, UNITED STATES AIR FORCE, THAT YOUR SERVICE SUBSEQUENT TO TRANSFER TO THE RETIRED RESERVE (JULY 1, 1960, TO JULY 31, 1962), IS CREDITABLE IN THE COMPUTATION OF YOUR YEARS OF SERVICE FOR RETIREMENT AND BASIC PAY PURPOSES AND IN DETERMINING YOUR ELIGIBILITY FOR AN AMOUNT OF RETIREMENT PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331. THE LETTER ALSO INDICATES THAT YOU ARE ENTITLED TO ELECT TO RECEIVE RETIREMENT PAY BASED UPON YOUR PERCENTAGE OF DISABILITY, YOUR YEARS OF SERVICE AS DEFINED IN 10 U.S.C. 1208 OR ENTITLEMENT UNDER 10 U.S.C. 1331. YOU SUGGEST THAT WE ARE MISTAKEN IN OUR STATEMENT IN THE DECISION OF SEPTEMBER 4, 1964, THAT YOU WERE RETIRED FOR DISABILITY. YOU SAY THAT YOUR RETIREMENT WAS BASED ON YOUR REACHING THE AGE OF 60 ON JULY 19, 1962.

YOUR ATTENTION IS INVITED TO THE FACT THAT YOUR RETIREMENT WAS BASED ON A FINDING OF THE PHYSICAL EVALUATION BOARD ON JULY 20, 1962, THAT YOU WERE PHYSICALLY UNFIT FOR ACTIVE DUTY AND YOUR RETIREMENT ORDERS OF JULY 25, 1962, SPECIFICALLY PROVIDED THAT YOU WERE "RETIRED PER SEC. 1201 AND 1372, TITLE 10, USC" (PERMANENT DISABILITY).

OUR DECISION OF SEPTEMBER 4, 1964, WAS REACHED AFTER CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF YOUR CASE AND THE APPLICABLE LAWS AND DECISIONS, INCLUDING THE LETTER OF NOVEMBER 26, 1962, AND A COPY OF THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE REFERRED TO THEREIN. WE MUST ADVISE YOU THAT AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE ON A QUESTION SUCH AS IS HERE INVOLVED IS ADVISORY ONLY AND IS NOT BINDING ON THIS OFFICE. IN MATTERS CONCERNING THE EXPENDITURE OF FEDERAL FUNDS, SUCH AS IN YOUR CASE, THE DECISIONS OF THIS OFFICE ARE BINDING ON ALL OFFICERS AND EMPLOYEES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. IN ADDITION, YOUR ATTENTION IS INVITED TO THE CASE OF ROBERT T. MERRILL V. UNITED STATES, CT.CL. NO. 95-63, DECIDED NOVEMBER 13, 1964, QUOTING WITH APPROVAL OUR DECISION 41 COMP. GEN. 458 ON WHICH OUR DECISION OF SEPTEMBER 4, 1964, WAS BASED. ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN IN YOUR CASE MUST BE SUSTAINED.