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B-123643, MARCH 5, 1957, 36 COMP. GEN. 628

B-123643 Mar 05, 1957
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THAT A MEMBER OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY IS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF HIS PERMANENT GRADE RATHER THAN ON THE ACTIVE DUTY PAY GRADE HELD WHEN RETIRED. THE DECISION WILL NOT BE USED AS PRECEDENT IN SIMILAR CASES UNTIL THE COURT HAS OPPORTUNITY TO REEXAMINE ITS CONCLUSION IN SEVERAL PENDING CASES. RESERVE OFFICERS WHO ARE RETIRED FOR PHYSICAL DISABILITY SUBSEQUENT TO THE ENACTMENT OF TITLE 10 ON AUGUST 10. ARE NOT ENTITLED TO RETIREMENT PAY BASED ON A PERMANENT RESERVE RANK HIGHER THAN THE TEMPORARY GRADE IN WHICH THE MEMBER IS SERVING ON ACTIVE DUTY ON THE DATE OF RETIREMENT. 1957: FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 7. RETIRED FOR PHYSICAL DISABILITY WHO HOLD A PERMANENT RESERVE RANK WHICH IS HIGHER THAN THE TEMPORARY RANK IN WHICH THEY ARE SERVING ON ACTIVE DUTY ON THE DATE OF THEIR RETIREMENT.

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B-123643, MARCH 5, 1957, 36 COMP. GEN. 628

MILITARY PERSONNEL - PAY - DISABILITY RETIREMENT - GRADE AT TIME OF RETIREMENT - TRACY V. UNITED STATES ALTHOUGH THE HOLDING IN TRACY V. UNITED STATES, DECIDED BY THE COURT OF CLAIMS ON JUNE 5, 1956, C.1CLS. NO. 113-55, THAT A MEMBER OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY IS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF HIS PERMANENT GRADE RATHER THAN ON THE ACTIVE DUTY PAY GRADE HELD WHEN RETIRED, AS PROVIDED IN SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, HAS MADE THE ISSUES RES JUDICATA, AND THE RULE OF ESTOPPEL BY JUDGMENT PRECLUDES THE DENIAL OF RETIRED PAY TO THE MEMBER, COMPUTED ON THE BASIS OF THE DECISION, FOR THE PERIOD SUBSEQUENT TO JUDGMENT; THE DECISION WILL NOT BE USED AS PRECEDENT IN SIMILAR CASES UNTIL THE COURT HAS OPPORTUNITY TO REEXAMINE ITS CONCLUSION IN SEVERAL PENDING CASES. THE DISABILITY RETIREMENT PROVISIONS IN 10 U.S.C. 1372 RECENTLY ENACTED INTO POSITIVE LAW REPRESENT A RESTATEMENT, WITHOUT SUBSTANTIVE CHANGE, OF THE PROVISIONS IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 AND, THEREFORE, RESERVE OFFICERS WHO ARE RETIRED FOR PHYSICAL DISABILITY SUBSEQUENT TO THE ENACTMENT OF TITLE 10 ON AUGUST 10, 1956, ARE NOT ENTITLED TO RETIREMENT PAY BASED ON A PERMANENT RESERVE RANK HIGHER THAN THE TEMPORARY GRADE IN WHICH THE MEMBER IS SERVING ON ACTIVE DUTY ON THE DATE OF RETIREMENT.

TO THE SECRETARY OF DEFENSE, MARCH 5, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 7, 1957, WITH ENCLOSURE ( MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 164), RECEIVED FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION CONCERNING THE EFFECT OF THE DECISION RENDERED ON JUNE 5, 1956, BY THE COURT OF CLAIMS IN THE CASE OF LOUIS STANDISH TRACY V. UNITED STATES, C.1CLS. NO. 113-55, ON THE RETIREMENT PAY STATUS OF OFFICERS OF THE ARMED FORCES, RETIRED FOR PHYSICAL DISABILITY WHO HOLD A PERMANENT RESERVE RANK WHICH IS HIGHER THAN THE TEMPORARY RANK IN WHICH THEY ARE SERVING ON ACTIVE DUTY ON THE DATE OF THEIR RETIREMENT.

THE RECORD BEFORE THIS OFFICE DISCLOSES THE FOLLOWING BASIC FACTS CONCERNING THE MILITARY SERVICE OF THE PLAINTIFF, TRACY: (1) HE ENLISTED IN THE CONNECTICUT NATIONAL GUARD APRIL 4, 1917; WAS MUSTERED INTO FEDERAL SERVICE ON JULY 25, 1917, AND WAS HONORABLY DISCHARGED ON APRIL 29, 1919; (2) HE WAS APPOINTED A COMMISSIONED OFFICER IN THE OFFICERS' RESERVE CORPS ON JULY 24, 1924; (3) HE BECAME A COMMISSIONED OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES ON APRIL 4, 1934, TERMINATING HIS COMMISSION IN THE OFFICERS' RESERVE CORPS; (4) HE WAS INDUCTED INTO FEDERAL SERVICE ON JANUARY 6, 1941, IN THE GRADE OF LIEUTENANT COLONEL, NATIONAL GUARD OF THE UNITED STATES; (5) HE WAS APPOINTED A LIEUTENANT COLONEL IN THE ARMY OF THE UNITED STATES ON OCTOBER 27, 1947; (6) HE WAS APPOINTED A COLONEL IN THE OFFICERS' RESERVE CORPS ON DECEMBER 17, 1947, AND THIS LATTER APPOINTMENT TERMINATED THE COMMISSIONS HELD BY HIM IN THE CONNECTICUT NATIONAL GUARD AND IN THE NATIONAL GUARD OF THE UNITED STATES; AND (7) HE WAS RETIRED FROM ACTIVE SERVICE ON APRIL 30, 1950, IN THE GRADE OF LIEUTENANT COLONEL, ARMY OF THE UNITED STATES (THE GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY AT THE TIME OF HIS RETIREMENT) BY REASON OF PHYSICAL DISABILITY UNDER THE AUTHORITY OF SECTIONS 402 AND 409, CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272, 279.

THE COURT, IN ITS OPINION OF JUNE 5, 1956, HELD THAT UNDER THE AUTHORITY OF 37 U.S.C. 1952 SED., 115 "THE PERCENTAGE TO BE USED IN COMPUTING HIS (PLAINTIFF-S) RETIRED PAY IS 75" AND THAT THE PLAINTIFF IS FURTHER ENTITLED, UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 1952 USED., 272 (D), TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS PERMANENT GRADE OF COLONEL IN THE OFFICERS' RESERVE CORPS, RATHER THAN ON THE BASIS OF THE ACTUAL ACTIVE DUTY PAY GRADE OF LIEUTENANT COLONEL IN THE ARMY OF THE UNITED STATES HELD BY HIM AT THE TIME OF HIS RETIREMENT ON APRIL 30, 1950.

WE CONCUR IN THE COURT'S OPINION TO THE EXTENT THAT IT HELD THE PLAINTIFF, AS A MEMBER OF A RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES RETIRED FOR PHYSICAL DISABILITY, TO BE ENTITLED BY VIRTUE OF THE PROVISIONS OF SECTION 402 (I), CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, 37 U.S.C. 1952 USED., 272 (I/--- NOW SECTION 1215, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 100--- TO THE BENEFITS PRESCRIBED IN 37 U.S.C. 1952 USED., 115 (FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368), HE HAVING SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. 31 COMP. GEN. 28 AND 213. COMPARE 31 COMP. GEN. 293.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, EXPRESSLY PROVIDES THAT THE RETIRED PAY OF ANY OFFICER ENTITLED TO THE BENEFITS THEREIN PRESCRIBED "SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.' THAT LANGUAGE IS CLEAR AND UNAMBIGUOUS IN ITS MEANING THAT THE RECOVERY OF RETIRED PAY THEREUNDER IS LIMITED TO 75 PER CENTUM OF THE "ACTIVE DUTY PAY" TO WHICH ENTITLED "AT THE TIME" OF RETIREMENT. HENCE, IT IS OUR VIEW THAT THE COURT HAS FAILED TO GIVE DUE EFFECT TO A SPECIFIC REQUIREMENT OF THE LAW, THAT IS, THAT UNDER THE AUTHORITY OF 37 U.S.C. 1952 USED., 115, THE 75 PERCENTUM FACTOR CAN BE APPLIED ONLY TO THE PLAINTIFF'S ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT. THE DECISION OF JUNE 5, 1956, APPEARS TO BE CONTRARY TO THE CONSTRUCTION WHICH THE COURT THERETOFORE PLACED ON THE SAME STATUTORY PROVISIONS IN THE CASE OF CARROLL V. UNITED STATES, 117 C.1CLS. 53, DECIDED DECEMBER 6, 1948, AND IN THE CASE OF SHEA V. UNITED STATES, 119 C.1CLS. 53, DECIDED MARCH 6, 1951.

THE DISSENTING OPINION OF CHIEF JUDGE JONES, CONCURRED IN BY JUDGE LARAMORE, EMPHATICALLY OUTLINES THE SERIOUS DOUBT IN THE MATTER AND, IN PARTICULAR, THE ABSENCE OF ANY STATUTORY PROVISION TO JUSTIFY THE PAYMENT OF DISABILITY RETIRED PAY TO THE PLAINTIFF, TRACY, BASED UPON "A RANK HIGHER THAN ANY IN WHICH ACTUAL SERVICE HAS BEEN RENDERED.'

HOWEVER THAT MAY BE, THE JUDGMENT IN FAVOR OF LOUIS STANDISH TRACY HAS BECOME FINAL AND ALL THE POINTS PLACED IN ISSUE IN THAT CASE, WHICH WERE LITIGATED, HAVE BECOME RES JUDICATA. THE QUESTION OF TRACY'S RIGHT AND THE BASIS FOR COMPUTING HIS RETIRED PAY FROM JUNE 6, 1956 (THE DAY FOLLOWING THE DATE OF THE COURT'S DECISION), NECESSARILY INVOLVE THE IDENTICAL ISSUES OF FACT AND LAW WHICH WERE CONSIDERED AND DECIDED BY THE COURT OF CLAIMS IN THE DECISION OF JUNE 5, 1956, IN HIS CASE. IN THOSE CIRCUMSTANCES, THE RULE OF ESTOPPEL BY JUDGMENT (COLLATERAL ESTOPPEL) HAS THE EFFECT OF PRECLUDING THE DEFENDANT ( GOVERNMENT) AND THE PLAINTIFF ( TRACY) FROM ANY FURTHER LITIGATION AGAINST EACH OTHER OF THE ISSUES ACTUALLY LITIGATED AND DETERMINED BY THE COURT IN THE DECISION OF JUNE 5, 1956. SEE THE SEVERAL COURT DECISIONS WHICH ARE QUOTED AND CITED ON THIS RULE OF LAW IN B-114422, JANUARY 10, 1957, 36 COMP. GEN. 489, AND IN B- 6882, JANUARY 11, 1957, 36 COMP. GEN. 501. HENCE, THIS OFFICE IS CONSTRAINED TO FOLLOW THE VIEWS EXPRESSED BY THE COURT OF CLAIMS IN THE DECISION OF JUNE 5, 1956, WITH RESPECT TO PAYMENT OF DISABILITY RETIREMENT PAY TO LOUIS STANDISH TRACY COMMENCING JUNE 6, 1956.

QUESTIONS 1 AND 2 IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 164 ARE AS FOLLOWS:

1. IS A RESERVE OFFICER RETIRED PURSUANT TO SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 818) ENTITLED TO RETIREMENT PAY BASED ON A PERMANENT RESERVE RANK HIGHER THAN THE TEMPORARY GRADE IN WHICH HE IS SERVING ON ACTIVE DUTY ON THE DATE OF RETIREMENT?

2. WOULD THE ANSWER BE THE SAME IN THE CASE OF A RESERVE OFFICER RETIRED FOR PHYSICAL DISABILITY SUBSEQUENT TO THE ENACTMENT OF PUBLIC LAW 1028, 84TH CONGRESS APPROVED 10 AUGUST 1956?

AS INDICATED ABOVE WE ARE UNABLE TO AGREE WITH THE HOLDING OF THE COURT THAT THE PROVISIONS OF 37 U.S.C. 1952 USED., 115, PROPERLY MAY BE COMBINED WITH THOSE OF SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 1952 USED., 272 (D). AN EXAMINATION OF THE PERTINENT STATUTORY PROVISIONS DISCLOSES THAT TWO METHODS OF COMPUTING PERCENTAGE MULTIPLE FOR RETIRED PAY PURPOSES (YEARS OF ACTIVE SERVICE TIMES 2 1/2 PERCENTUM, OR THE PERCENTAGE OF PHYSICAL DISABILITY) ARE PRESCRIBED IN SECTION 402 (D). THE SPECIFIC FORMULAS THEREIN SET OUT PRECLUDE THE APPLICATION OF ANY OTHER METHOD. SIMILARLY, THE PROVISIONS OF 37 U.S.C. 1952 USED., 115, PRECLUDE THE APPLICATION OF THE 75 PER CENTUM FACTOR THEREIN PRESCRIBED TO ANY RATE OF PAY OTHER THAN THAT TO WHICH THE RETIRING MEMBER IS ENTITLED AT THE TIME OF RETIREMENT.

IN ANY EVENT, THERE ARE NOW PENDING BEFORE THE COURT OF CLAIMS AT LEAST THREE OTHER CASES ( SNIVELY V. UNITED STATES, C.1CLS. NO. 399 56; GRAFTON V. UNITED STATES, C.1CLS. NO. 545-56 AND LUNCEFORD V. UNITED STATES, C.1CLS. NO. 3-57), EACH APPARENTLY INVOLVING THE SAME STATUTORY PROVISIONS AND PRESENTING THE SAME ISSUES AS THOSE INVOLVED IN THE TRACY CASE. THE COURT THEREFORE PROBABLY WILL BE CALLED UPON TO REEXAMINE THE CONCLUSIONS REACHED IN THE TRACY CASE, AND IT IS POSSIBLE, OF COURSE, THAT IT WILL CHANGE ITS VIEWS IN THE LIGHT OF THE SPECIFIC LANGUAGE EMPLOYED IN 37 U.S.C. 1952 USED., 115 AND 272 (D), AND UPON FURTHER CONSIDERATION OF THE STRONG VIEWS EXPRESSED BY CHIEF JUDGE JONES IN HIS DISSENTING OPINION CONCURRED IN BY JUDGE LARAMORE.

QUESTION 1 IS ANSWERED IN THE NEGATIVE.

THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WERE REPEALED BY SECTION 53, ACT OF AUGUST 10, 1956, 70A STAT. 641, 680. THE PROVISIONS WHICH WERE SUBSTITUTED FOR THEM ARE CONTAINED IN SECTION 1372, TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 105, AS FOLLOWS: SECTION 1372. GRADE ON RETIREMENT FOR PHYSICAL DISABILITY: MEMBERS OF ARMED FORCES

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(1) THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.

(2) THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM WHICH HE IS RETIRED.

(3) THE PERMANENT REGULAR OR RESERVE GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED AND WHICH WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

(4) THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED, IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

THE HIGHEST RETIRED GRADE (UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW) OF ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER AUTHORITY OF SECTION 1201 OR 1204, TITLE 10, U.S. CODE, 70A STAT. 91 AND 93, RESPECTIVELY, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF SECTION 1202 OR 1205, TITLE 10, U.S. CODE, 70A STAT. 92 AND 94, RESPECTIVELY, IS THUS EXPRESSLY FIXED BY THE SPECIFIC TERMS OF CLAUSES (1), (2), (3) AND (4) OF SECTION 1372, WHICHEVER CLAUSE APPLIES IN THE PARTICULAR CASE. CLAUSE (3/--- BY PROVIDING FOR RETIREMENT, IN SOME CASES, IN A RESERVE GRADE NEVER ACTUALLY ATTAINED ON ACTIVE DUTY OR OTHERWISE--- MIGHT POSSIBLY BE TAKEN AS AN INDICATION THAT CLAUSE (1) SHOULD BE APPLIED TO CONFER A HIGHER (RESERVE) GRADE THAN THE GRADE IN WHICH THE RETIRING MEMBER WAS "SERVING * * * ON THE DATE WHEN * * * RETIRED," IF SUCH HIGHER (RESERVE) GRADE IS ACTUALLY HELD AT THAT TIME. HOWEVER, THAT WOULD BE INCONSISTENT WITH THE LANGUAGE OF CLAUSE (1) AND, IN OUR OPINION, CONTRARY TO THE LANGUAGE AND INTENT OF THE STATUTORY PROVISIONS WHICH WERE SUPERSEDED BY SECTION 1372. HENCE, SINCE THE LEGISLATIVE HISTORY OF THAT SECTION THROWS LITTLE OR NO LIGHT ON THE MATTER, AND SINCE SECTION 49 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640, PROVIDES THAT "IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE" THE LAW BEING REPLACED, WE ARE CONSTRAINED TO STATE THAT THE ANSWER TO QUESTION 2 WOULD BE THE SAME, IN THE CASE THERE PRESENTED, AS THE ANSWER TO QUESTION 1, ABOVE.

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