A-44840, JUL. 21, 1959

A-44840: Jul 21, 1959

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VETERANS BENEFITS OFFICE: REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. MCGRATH IS ENTITLED TO EMERGENCY OFFICER RETIRED PAY IN THE GRADE OF MAJOR. ENCLOSED WITH YOUR LETTER IS A LETTER DATED FEBRUARY 23. IN WHICH THE FORMER OFFICER STATES THAT WHEN HIS NAME WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IN 1928 IN THE GRADE OF CAPTAIN. THAT HE HAS QUALIFIED FOR AND IS RECEIVING RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. INSOFAR AS THE GRADE IN WHICH AN INDIVIDUAL IS RETIRED IS CONCERNED. IF HIGHER THAN THE TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES IN WHICH HE THEN WAS SERVING. EVEN THOUGH HE MAY NEVER HAVE PERFORMED ANY ACTIVE DUTY IN THE HIGHER PERMANENT GRADE.

A-44840, JUL. 21, 1959

TO MR. H. R. OWSLEY, FINANCE OFFICER, VETERANS BENEFITS OFFICE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1959, FILE C-1 270 847, MCGRATH, JAMES G., CODE 72, 3072/242A, IN WHICH YOU REQUEST OUR VIEWS AS TO WHETHER MR. JAMES G. MCGRATH IS ENTITLED TO EMERGENCY OFFICER RETIRED PAY IN THE GRADE OF MAJOR.

ENCLOSED WITH YOUR LETTER IS A LETTER DATED FEBRUARY 23, 1959, FROM MR. MCGRATH TO THE ADMINISTRATOR OF VETERANS AFFAIRS, IN WHICH THE FORMER OFFICER STATES THAT WHEN HIS NAME WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IN 1928 IN THE GRADE OF CAPTAIN, HE HELD THE RESERVE RANK OF MAJOR; THAT HE HAS QUALIFIED FOR AND IS RECEIVING RETIRED PAY COMPUTED UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND THAT UNDER OUR DECISION B-136900 HE CLAIMS THE RETIRED PAY OF A MAJOR.

DECISION B-136900, OCTOBER 6, 1958, 38 COMP. GEN. 268, IMPLEMENTED OUR DECISION OF MARCH 7, 1958, B-123643, 37 COMP. GEN. 585, IN WHICH WE STATED THAT WE WOULD FOLLOW THE PRINCIPLE OF THE TRACY (136 C.CLS. 211), LOWELL (C.CLS.NO. 361-56, DECIDED JANUARY 15, 1958), AND BUDD (C.CLS.NO. 467-56, DECIDED JANUARY 15, 1958) CASES AND MATTERS OF DISABILITY RETIRED PAY ARISING UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818. IN THOSE CASES THE COURT HELD THAT UNDER SECTION 402 (D), DISABILITY RETIRED PAY, INSOFAR AS THE GRADE IN WHICH AN INDIVIDUAL IS RETIRED IS CONCERNED, SHOULD BE COMPUTED ON THE BASIS OF THE PERMANENT RESERVE GRADE HELD BY THE MEMBER AT THE TIME OF RETIREMENT, IF HIGHER THAN THE TEMPORARY GRADE IN THE ARMY OF THE UNITED STATES IN WHICH HE THEN WAS SERVING, EVEN THOUGH HE MAY NEVER HAVE PERFORMED ANY ACTIVE DUTY IN THE HIGHER PERMANENT GRADE.

MR. MCGRATH'S RETIRED PAY ACCRUES TO HIM UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, PROVIDING THAT NON-REGULAR OFFICERS WHO INCURRED PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENTUM DURING SERVICE IN "THE WORLD WAR" SHOULD RECEIVE "RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE.' THE TERM "WORLD WAR" WAS DEFINED AS INCLUDING THE PERIOD FROM APRIL 6, 1917, TO JULY 2, 1921.

WHILE MR. MCGRATH MAY HAVE "HELD" THE GRADE OF MAJOR WHEN HE WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IN THE GRADE OF CAPTAIN, HIS SITUATION IS NOT COMPARABLE TO THAT OF TRACY, LOWELL, AND BUDD--- OFFICERS OF THE ARMY OF THE UNITED STATES HOLDING HIGHER PERMANENT COMMISSIONS IN THE OFFICERS RESERVE CORPS--- SINCE MR. MCGRATH'S RIGHT TO RETIRED PAY IS RESTRICTED TO PAY OF THE EMERGENCY OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY DURING WORLD WAR I. COMPARE, GENERALLY, TALL V. UNITED STATES, 79 C.CLS. 251.

MR. MCGRATH APPEARS TO BE ENTITLED TO THE RETIRED PAY OF A CAPTAIN, WHICH HE PRESUMABLY IS RECEIVING.