A-32424, MAY 3, 1965

A-32424: May 3, 1965

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ZELDER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 23. IT IS STATED THAT REAR ADMIRAL HIGBEE WAS RETIRED ON AUGUST 1. HIS MILITARY RECORD WAS CORRECTED. "* * * TO SHOW THAT ON SEPTEMBER 30. THE QUESTION PRESENTED IS WHETHER ADMIRAL HIGBEE'S RETIRED PAY MAY BE ADJUSTED RETROACTIVELY . THE DATE HIS RECORDS WERE CORRECTED.'. THE AMOUNT IS FOUND TO BE DUE ON ACCOUNT OF HIS COAST GUARD SERVICE AND THE MEMBER TIMELY FILED A REQUEST THEREFOR. CONSEQUENTLY HIS APPLICATION FOR CORRECTION OF HIS MILITARY RECORD WAS TIMELY FILED. WAS ENTITLED TO CONTINUE TO RECEIVE THE RETIRED PAY HE WAS RECEIVING ON THE DAY PRECEDING DATE OF ENACTMENT OF THE ACT. 1949) OF THE ACT TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF THAT ACT AND RECEIVE THE DISABILITY RETIRED PAY THERE PRESCRIBED (DETERMINED BY MULTIPLYING THE BASIC PAY OF HIS APPLICABLE RETIRED GRADE BY THE PERCENTAGE OF HIS DISABILITY OR BY THE NUMBER OF YEARS OF HIS ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM) OR TO RECEIVE RETIRED PAY UNDER NE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE ACT (EITHER THE RETIRED PAY HE WAS RECEIVING UNDER LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT OR THE BASIC PAY OF HIS APPLICABLE RETIRED GRADE MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM).

A-32424, MAY 3, 1965

TO MRS. F. B. ZELDER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1965, REQUESTING A DECISION AS TO THE ENTITLEMENT OF REAR ADMIRAL FRANK D. HIGBEE (1048), U.S. COAST GUARD, RETIRED, TO AN INCREASE IN HIS RETIRED PAY BEGINNING OCTOBER 1, 1949, IN ACCORDANCE WITH THE DECISION OF THE BOARD FOR CORRECTION OF MILITARY RECORDS OF THE U.S. COAST GUARD APPROVED BY THE ASSISTANT SECRETARY OF THE TREASURY ON DECEMBER 2, 1964.

IT IS STATED THAT REAR ADMIRAL HIGBEE WAS RETIRED ON AUGUST 1, 1946, FOR PHYSICAL DISABILITY AND THAT HE DID NOT MAKE AN ELECTION UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949. ON DECEMBER 2, 1964, HIS MILITARY RECORD WAS CORRECTED.

"* * * TO SHOW THAT ON SEPTEMBER 30, 1954, HE MADE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, TO RECEIVE RETIRED PAY USING 28 YEARS OF ACTIVE SERVICE AS A MULTIPLIER, AS PROVIDED IN SECTION 511 OF THE ACT.'

THE QUESTION PRESENTED IS WHETHER ADMIRAL HIGBEE'S RETIRED PAY MAY BE ADJUSTED RETROACTIVELY ,TO 1 OCTOBER 1949 AS SHOWN ON ENCLOSED VOUCHER, OR TO 30 SEPTEMBER 1954, THE DATE HIS RECORDS WERE CORRECTED.'

SECTION 1552 OF TITLE 10, U.S. CODE, AUTHORIZES THE SECRETARY OF THE TREASURY, ACTING THROUGH A CIVILIAN BOARD, TO CORRECT A MILITARY RECORD OF THE COAST GUARD TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE AND TO PAY A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, OR OTHER PECUNIARY BENEFITS IF, AS A RESULT OF CORRECTING A MILITARY RECORD OF A MEMBER OF THE COAST GUARD, THE AMOUNT IS FOUND TO BE DUE ON ACCOUNT OF HIS COAST GUARD SERVICE AND THE MEMBER TIMELY FILED A REQUEST THEREFOR.

IT INFORMALLY HAS BEEN ASCERTAINED THAT ADMIRAL HIGBEE FILED APPLICATION FOR CORRECTION OF HIS MILITARY RECORD ON JUNE 15, 1956, AND AGAIN ON OCTOBER 20, 1961. CONSEQUENTLY HIS APPLICATION FOR CORRECTION OF HIS MILITARY RECORD WAS TIMELY FILED.

TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 ESTABLISHED A NEW SYSTEM OF DISABILITY RETIREMENT FOR MEMBERS OF THE ARMY, NAVY, MARINE CORPS AND COAST GUARD, AS WELL AS NEW FORMULAE FOR COMPUTATION OF DISABILITY RETIRED PAY. UNDER THE PROVISIONS OF SECTION 519 OF THAT ACT, 63 STAT. 834, A MEMBER RECEIVING RETIRED PAY ON THE DATE OF THE ENACTMENT OF THAT ACT (OCTOBER 12, 1949), NOTWITHSTANDING THE PROVISIONS OF THAT ACT, WAS ENTITLED TO CONTINUE TO RECEIVE THE RETIRED PAY HE WAS RECEIVING ON THE DAY PRECEDING DATE OF ENACTMENT OF THE ACT. SECTION 411 OF THAT ACT, 63 STAT. 823, PROVIDED THAT, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER THERETOFORE RETIRED FOR DISABILITY AND ENTITLED TO RECEIVE RETIRED PAY COULD ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE (OCTOBER 1, 1949) OF THE ACT TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF THAT ACT AND RECEIVE THE DISABILITY RETIRED PAY THERE PRESCRIBED (DETERMINED BY MULTIPLYING THE BASIC PAY OF HIS APPLICABLE RETIRED GRADE BY THE PERCENTAGE OF HIS DISABILITY OR BY THE NUMBER OF YEARS OF HIS ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM) OR TO RECEIVE RETIRED PAY UNDER NE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE ACT (EITHER THE RETIRED PAY HE WAS RECEIVING UNDER LAWS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT OR THE BASIC PAY OF HIS APPLICABLE RETIRED GRADE MULTIPLIED BY THE NUMBER OF HIS YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM), WHICHEVER WAS THE GREATER.

EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, EFFECTIVE AS OF OCTOBER 1, 1949, PROVIDED THAT EACH MEMBER OF THE UNIFORMED SERVICES TO WHOM SECTION 411 OF THE 1949 ACT WAS APPLICABLE SHOULD CONTINUE TO RECEIVE THE RETIRED PAY UNDER APPLICABLE LAW IN EFFECT ON SEPTEMBER 30, 1949, UNLESS PURSUANT TO SECTION 411 OF THE 1949 ACT HE ELECTED A DIFFERENT METHOD PRIOR TO OCTOBER 1, 1954, AND QUALIFIED FOR SUCH METHOD. IT FURTHER PROVIDED THAT ANY ELECTION MADE PURSUANT TO SECTION 411 OF THE 1949 ACT "AND THESE REGULATIONS SHALL BE EFFECTIVE AS OF OCTOBER 1, 1949.'

UNDER ADMIRAL HIGBEE'S MILITARY RECORD AS CORRECTED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1552, HE MADE AN ELECTION UNDER SECTION 411 OF THE 1949 ACT ON SEPTEMBER 30, 1954, TO RECEIVE RETIRED PAY UNDER THE YEARS OF SERVICE FORMULA OF SECTION 511 OF THE 1949 ACT, USING 28 YEARS OF ACTIVE SERVICE AS A MULTIPLIER.

WHILE SECTION 511 OF THE 1949 ACT DID NOT AUTHORIZE THE ELECTION OF ANY PARTICULAR FORMULA THERE PRESCRIBED, IT BEING THE INTENT OF CONGRESS TO GIVE MEMBERS ELIGIBLE FOR SECTION 511 BENEFITS THE RIGHT TO RECEIVE RETIRED PAY UNDER EITHER THE SAVED-PAY FORMULA OR YEARS OF SERVICE FORMULA OF THAT SECTION IN WHICHEVER AMOUNT IS GREATER (SEE 29 COMP. GEN. 404, 408), ADMIRAL HIGBEE'S ELECTION OF THE YEARS OF SERVICE FORMULA OF SECTION 511 OF THE 1949 ACT WILL BE ACCEPTED AS AN ELECTION TO RECEIVE THE RETIRED PAY PROVIDED BY THAT SECTION.

IN DECISION OF JULY 7, 1954, 34 COMP. GEN. 7, THIS OFFICE HELD THAT PAYMENTS BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS UNDER THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, NOW CODIFIED IN 10 U.S.C. 1552, ARE REQUIRED TO BE MADE IN THE AMOUNTS ASCERTAINED OR DETERMINED TO BE DUE BY APPLYING PERTINENT LAWS AND REGULATIONS TO ALL MATERIAL FACTS SHOWN BY THE RECORDS AS SO CORRECTED, AND THAT CONSEQUENTLY A RETIRED MEMBER WHOSE RECORD WAS CORRECTED TO SHOW FACTS ENTITLING HIM TO DISABILITY RETIREMENT PAY FOR THE PERIOD FROM JANUARY 7, 1946, TO APRIL 30, 1950, INCLUSIVE, WAS ENTITLED TO THAT PAY FOR THE PERIOD BEGINNING JANUARY 7, 1946, EVEN THOUGH THE SECRETARY CONCERNED HAD ATTEMPTED TO LIMIT HIS ENTITLEMENT TO DISABILITY RETIREMENT PAY TO THE PERIOD BEGINNING MAY 1, 1950.

UNDER THE ABOVE-CITED PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 AND EXECUTIVE ORDER NO. 10124, ADMIRAL HIGBEE, ON THE BASIS OF HIS COAST GUARD MILITARY RECORD AS CORRECTED, IS ENTITLED TO RECEIVE RETIRED PAY UNDER SECTION 511 OF THE 1949 ACT FOR THE PERIOD BEGINNING OCTOBER 1, 1949, AND HIS ENTITLEMENT IS NOT LIMITED TO THE PERIOD BEGINNING SEPTEMBER 30, 1954. ACCORDINGLY, PAYMENT ON THE VOUCHER, COVERING ADJUSTMENT OF HIS RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO DECEMBER 31, 1964, PROPERLY MAY BE PAID, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER.