B-101978, MAY 28, 1953, 32 COMP. GEN. 535

B-101978: May 28, 1953

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PAY - RETIRED - SERVICE CREDITS - ARMY OF THE UNITED STATES - PHILIPPINE SCOUT SERVICE SERVICE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT IS SERVICE IN THE ARMY WITHIN THE MEANING OF THE ACT OF MARCH 2. AN ENLISTED MAN WHO RETIRED FROM THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THAT ACT AFTER 30 YEARS' SERVICE IS ENTITLED TO RETIRED PAY COMPUTED UPON THE BASIS OF THE PAY HE WAS RECEIVING AT DATE OF RETIREMENT. EVEN THOUGH ALL MILITARY SERVICE WITH THE EXCEPTION OF THE LAST SIX MONTHS WAS IN THE PHILIPPINE SCOUTS. 1953: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 9. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE CLAIM OF FLORENCIO DANCEL. YOUR REQUEST IS PREDICATED UPON INSTRUCTIONS TO THE CLAIMANT.

B-101978, MAY 28, 1953, 32 COMP. GEN. 535

PAY - RETIRED - SERVICE CREDITS - ARMY OF THE UNITED STATES - PHILIPPINE SCOUT SERVICE SERVICE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT IS SERVICE IN THE ARMY WITHIN THE MEANING OF THE ACT OF MARCH 2, 1907, AND THEREFORE, AN ENLISTED MAN WHO RETIRED FROM THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF THAT ACT AFTER 30 YEARS' SERVICE IS ENTITLED TO RETIRED PAY COMPUTED UPON THE BASIS OF THE PAY HE WAS RECEIVING AT DATE OF RETIREMENT, EVEN THOUGH ALL MILITARY SERVICE WITH THE EXCEPTION OF THE LAST SIX MONTHS WAS IN THE PHILIPPINE SCOUTS.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. R. W. ELLIOTT, DEPARTMENT OF THE AIR FORCE, MAY 28, 1953:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 9, 1953, AND MAY 12, 1953, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE CLAIM OF FLORENCIO DANCEL, SERVICE NO. R-320 601, MASTER SERGEANT, ARMY OF THE UNITED STATES, RETIRED, FOR ADDITIONAL RETIRED PAY. YOUR REQUEST IS PREDICATED UPON INSTRUCTIONS TO THE CLAIMANT, CONTAINED IN SETTLEMENT DATED SEPTEMBER 18, 1952, OF THE CLAIMS DIVISION OF THIS OFFICE, WHICH ALLOWED HIM ADDITIONAL RETIRED PAY FOR THE PERIOD JUNE 1, 1946, THROUGH JUNE 30, 1950, AND ADVISED HIM TO CONTACT THE DISBURSING OFFICER CURRENTLY PAYING HIS RETIRED PAY REGARDING ADDITIONAL RETIRED PAY WHICH MAY BE DUE SUBSEQUENT TO JUNE 30, 1950.

THE RECORDS SHOW THAT THE CLAIMANT REENLISTED IN THE PHILIPPINE SCOUTS ON AUGUST 16, 1940, IN THE GRADE OF TECHNICAL SERGEANT AND THAT HE WAS PROMOTED TO MASTER SERGEANT IN SUCH ORGANIZATION ON APRIL 19, 1941. MARCH 7, 1945, HAVING COMPLETED 29 YEARS, 6 MONTHS AND 21 DAYS FOR LONGEVITY PAY, HE WAS ENLISTED IN THE ARMY OF THE UNITED STATES IN THE GRADE OF MASTER SERGEANT AND BY PARAGRAPH 41, SPECIAL ORDERS NO. 113, WAR DEPARTMENT, DATED MAY 17, 1946, HE WAS PLACED ON THE RETIRED LIST EFFECTIVE MAY 31, 1946, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, AS AMENDED, 10 U.S.C. 947, 980, WHICH PROVIDES, IN PERTINENT PART:

THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY * * * HE MAY THEN BE IN RECEIPT OF * * *.'

ALTHOUGH DANCEL WAS SERVING AS MASTER SERGEANT IN AN ENLISTMENT IN THE ARMY OF THE UNITED STATES AT THE TIME OF HIS RETIREMENT AND RECEIVING THE PAY AUTHORIZED FOR INDIVIDUALS SO ENLISTED, HIS RETIRED PAY WAS COMPUTED ON THE PAY AUTHORIZED FOR A MASTER SERGEANT, PHILIPPINE SCOUTS, BASED UPON A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT HIS RETIREMENT WAS EFFECTED IN A PHILIPPINE SCOUT STATUS. PRESUMABLY SUCH DETERMINATION WAS PREDICATED, IN PART, UPON A VIEW THAT THE RETIREMENT OF AN INDIVIDUAL ENLISTED IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT IS NOT AUTHORIZED BY THE SAID ACT OF MARCH 2, 1907, AS AMENDED. PARAGRAPH 17, ARMY REGULATIONS 615-395, DATED DECEMBER 8, 1947, SUBSEQUENT TO THE DATE OF DANCEL'S RETIREMENT, SO STATES, CITING AS AUTHORITY FOR SUCH PROPOSITION, MIGUEL V. MCCARL, 291 U.S. 442, AND BULL. JAG, JUNE 1946, PAGE 153.

HOWEVER, PHILIPPINE SCOUT SERVICE IS SERVICE IN THE ARMY WITHIN THE MEANING OF THE ACT OF MARCH 2, 1907, AS AMENDED. MIGUEL V. MCCARL, SUPRA. ALSO, CLEARLY, AN INDIVIDUAL WHO ENLISTS "IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES * * * IN THE ARMY OF THE UNITED STATES WITHOUT SPECIFICATION OF ANY PARTICULAR COMPONENT OR UNIT THEREOF" UNDER THE PROVISIONS OF SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 634, IS ENLISTED FOR SERVICE IN THE ARMY. AND IT IS STATED IN THE MIGUEL CASE, AT PAGES 452 AND 453, THAT,"ONE WHO ENLISTS FOR SERVICE IN THE ARMY CERTAINLY BECOMES AN "ENLISTED MAN * * * IN THE ARMY; " AND WHEN HE "SHALL HAVE SERVED THIRTY YEARS' THEREIN, HE FALLS WITHIN THE PLAIN TERMS OF THE ACT OF MARCH 2, 1907, SUPRA, AND, IN ACCORDANCE THEREWITH, IS ENTITLED TO "BE PLACED UPON THE RETIRED LIST" WITH THE PAY AND ALLOWANCES THEREIN PRESCRIBED.' HENCE, SUCH DECISION DOES NOT SUPPORT THE VIEW OF THE LAW REPRESENTED BY THE SAID REGULATIONS. ON THE CONTRARY, IT APPEARS TO BE AUTHORITY FOR THE OPPOSITE OF SUCH VIEW. NEITHER ARE SUCH REGULATIONS SUPPORTED BY THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY REFERRED TO IN THE CITED REGULATIONS, JAGA 1946/4415, JUNE 18, 1946, SUCH OPINION HAVING CONSIDERED A CASE ARISING UNDER THE PROVISIONS FOR RETIREMENT OF " REGULAR ARMY" ENLISTED MEN AFTER 20 YEARS' SERVICE CONTAINED IN SECTION 4 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 539.

SINCE DANCEL HAD "SERVED THIRTY YEARS * * * IN THE ARMY" HE PROPERLY WAS RETIRED UNDER THE 30 YEAR RETIREMENT STATUTE AND UNDER THE PLAIN TERMS OF SUCH STATUTE BECAME ENTITLED TO "SEVENTY-FIVE PERCENTUM OF THE PAY" HE WAS THEN RECEIVING. BLACKETT V. UNITED STATES, 81 C.1CLS. 884; STANDERSON V. UNITED STATES, 83 ID. 633; O-HARA V. UNITED STATES, 92 ID. 306; ANDERSON V. UNITED STATES, ID. 308. AND IT HAS BEEN HELD THAT NO POLICY OF THE MILITARY ESTABLISHMENT OR OPINION OF THE ADJUTANT GENERAL AS TO THE PROPRIETY OF AN ENLISTED MAN BEING RETIRED IN ANY PARTICULAR GRADE CAN EFFECT THE RIGHT GRANTED BY CONGRESS. COMMINGS V. UNITED STATES, 89 C.1CLS. 498.

ACCORDINGLY, UPON HIS RETIREMENT DANCEL BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF HIS PAY AS MASTER SERGEANT, ARMY OF THE UNITED STATES. THE SAID SETTLEMENT DATED SEPTEMBER 18, 1952, ADJUSTED HIS RETIRED PAY ACCOUNTS TO JUNE 30, 1950, ON THE BASIS OF THE PAY OF MASTER SERGEANT, ARMY OF THE UNITED STATES; AND, AS INDICATED THEREIN, YOU ARE AUTHORIZED TO ADJUST HIS RETIRED PAY ACCOUNTS BEGINNING JULY 1, 1950, AND TO PAY HIM RETIRED PAY CURRENTLY, ON SUCH BASIS.