B-102140, MAY 3, 1951, 30 COMP. GEN. 431

B-102140: May 3, 1951

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AN AVIATION CADET IS AN ENLISTED PERSON AND UPON RETIREMENT FOR A DISABILITY OF 70 PERCENTUM UNDER SECTION 402 OF THE ACT IS ENTITLED TO RETIRED PAY COMPUTED ON 70 PERCENTUM OF $105. NOR IS THERE ANY OTHER RATE OF PAY PRESCRIBED BY LAW FOR SUCH ENLISTED RATING. 1951: REFERENCE IS MADE TO LETTER OF THE ACTING SECRETARY OF DEFENSE DATED MARCH 19. IT IS STATED THAT THE SAID AMOUNT IS COMPUTED AT 70 PERCENTUM OF $105. DECISION IS REQUESTED AS TO WHETHER AVIATION CADET REYNOLDS "IS ENTITLED TO RETIRED PAY ON AND AFTER 1 NOVEMBER 1950 COMPUTED AT 70 PERCENT OF THE PAY PRESCRIBED BY LAW FOR A MEMBER OF HIS ENLISTED RATING. IS AS FOLLOWS: UP SECS 402 AND 409. HAVING BEEN FOUND PHYSICALLY UNFIT FOR ACT SV BY REASON OF PERMANENT PHYSICAL DSABL IS RETD FR ACT SV AND PLACED ON THE APPROPRIATE USAF RETD LIST IN THE GR OF A/C.

B-102140, MAY 3, 1951, 30 COMP. GEN. 431

PAY - RETIRED - AVIATION CADETS - COMPUTATION OF DISABILITY RETIREMENT PAY UNDER SECTION 102 OF THE CAREER COMPENSATION ACT OF 1949, AN AVIATION CADET IS AN ENLISTED PERSON AND UPON RETIREMENT FOR A DISABILITY OF 70 PERCENTUM UNDER SECTION 402 OF THE ACT IS ENTITLED TO RETIRED PAY COMPUTED ON 70 PERCENTUM OF $105, THE MONTHLY BASE PAY OF AN AVIATION CADET FIXED BY SECTION 528 OF THE ACT, AND WHILE SECTION 8 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 PROVIDES THAT AVIATION CADETS WITH DEPENDENTS SHALL BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AT RATES PRESCRIBED FOR MEMBERS IN PAY GRADE E-4, SUCH PROVISIONS DO NOT AFFECT THE PAY OF AVIATION CADETS AS FIXED BY SECTION 528 OF THE CAREER COMPENSATION ACT, NOR IS THERE ANY OTHER RATE OF PAY PRESCRIBED BY LAW FOR SUCH ENLISTED RATING.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MAY 3, 1951:

REFERENCE IS MADE TO LETTER OF THE ACTING SECRETARY OF DEFENSE DATED MARCH 19, 1951, TRANSMITTING A LETTER DATED JANUARY 15, 1951, FROM LIEUTENANT COLONEL JAMES H. COMINGS, FINANCE CORPS, UNITED STATES ARMY, TOGETHER WITH A VOUCHER STATED IN FAVOR OF AVIATION CADET JAMES D. REYNOLDS, JR., FOR RETIRED PAY FOR THE PERIOD NOVEMBER 1 TO 30, 1950, IN THE AMOUNT OF $73.50. IT IS STATED THAT THE SAID AMOUNT IS COMPUTED AT 70 PERCENTUM OF $105, THE MONTHLY PAY OF AN AVIATION CADET. DECISION IS REQUESTED AS TO WHETHER AVIATION CADET REYNOLDS "IS ENTITLED TO RETIRED PAY ON AND AFTER 1 NOVEMBER 1950 COMPUTED AT 70 PERCENT OF THE PAY PRESCRIBED BY LAW FOR A MEMBER OF HIS ENLISTED RATING, OR THE PAY PRESCRIBED FOR AN AVIATION CADET.'

PARAGRAPH 18 OF SPECIAL ORDERS NO. 193, DEPARTMENT OF THE AIR FORCE, WASHINGTON, DATED OCTOBER 2, 1950, IS AS FOLLOWS:

UP SECS 402 AND 409, PUB LAW 351--- 81ST CONGRESS, A/C JAMES D. REYNOLDS, JR, AD11139216, USAF, HAVING BEEN FOUND PHYSICALLY UNFIT FOR ACT SV BY REASON OF PERMANENT PHYSICAL DSABL IS RETD FR ACT SV AND PLACED ON THE APPROPRIATE USAF RETD LIST IN THE GR OF A/C, EFF 30 OCT 50. A/C REYNOLDS IS HELD FR ASGMT AND DY DEPT OF PATIENTS, STA HOSP, MATS, WESTOVER AFB, MASS, ON 30 OCT 50 AND AT THE PROPER TIME WP HIS HOME. TDN. 5714500 160- 401 P 534-02, 103, 107 S 99-999.

SECTION 402 OF PUBLIC LAW 351, SUPRA, (THE CAREER COMPENSATION ACT OF 1949), PROVIDES RETIREMENT BENEFITS, UNDER STIPULATED CONDITIONS, FOR "MEMBERS" OF THE UNIFORMED SERVICES. BEFORE CONSIDERING THE MATTER OF THE AMOUNT OF RETIRED PAY TO WHICH MR. REYNOLDS MAY BE ENTITLED, IT FIRST IS NECESSARY TO DETERMINE WHETHER HE IS A "MEMBER" OF THE UNIFORMED SERVICES WITHIN THE INTENT AND PURPOSE OF THE SAID SECTION 402.

SECTION 102 OF THE ABOVE ACT, 63 STAT. 804, IS, IN PERTINENT PART, AS FOLLOWS:

FOR THE PURPOSES OF THIS ACT---

(A) THE TERM "UNIFORMED SERVICES," UNLESS OTHERWISE QUALIFIED, SHALL BE INTERPRETED TO MEAN AND INCLUDE THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE OF THE UNITED STATES, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, AND ALL REGULAR AND RESERVE COMPONENTS THEREOF.

(B) THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES. AS USED IN THIS SUBSECTION THE WORDS "RETIRED PERSON" SHALL INCLUDE MEMBERS OF THE FLEET RESERVE AND FLEET RESERVE CORPS RESERVE WHO ARE IN RECEIPT OF RETAINER PAY.

(C) THE TERM "OFFICER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND FLIGHT OFFICER, EITHER PERMANENT OR TEMPORARY, OF THE UNIFORMED SERVICES. USED IN THIS SUBSECTION THE WORD "TEMPORARY" SHALL INCLUDE TEMPORARY OFFICERS WHOSE PERMANENT STATUS IS THAT OF AN ENLISTED PERSON.

(D) THE TERM "COMMISSIONED OFFICER" MEANS A MEMBER OF THE UNIFORMED SERVICES HAVING RANK OR GRADE OF SECOND LIEUTENANT, ENSIGN, OR JUNIOR ASSISTANT GRADE, OR ABOVE, EITHER PERMANENT OR TEMPORARY, IN ANY OF THE UNIFORMED SERVICES, EXCEPT THAT FOR PURPOSES OF SECTION 203 OF THIS ACT SUCH TERM SHALL BE LIMITED TO THE DEFINITION PRESCRIBED IN SUBSECTION (A) OF SAID SECTION.

(E) THE TERM "WARRANT OFFICER" MEANS A COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, OR FLIGHT OFFICER, INCLUDING A MASTER, CHIEF ENGINEER, FIRST MATE, SECOND MATE, ASSISTANT ENGINEER, OR SECOND ASSISTANT ENGINEER OF THE ARMY MINE PLANTER SERVICE.

SECTION 201 OF THE SAID ACT, 63 STAT. 805, PRESCRIBES SPECIFIC MONTHLY BASIC PAY RATES FOR ,MEMBERS OF THE UNIFORMED SERVICES"--- COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED PERSONS, NO PROVISION BEING MADE THEREIN FOR THE PAY OF AVIATION CADETS. SECTION 204, 63 STAT. 809, PRESCRIBES SPECIFIC MONTHLY RATES OF INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, INCLUDING FLYING DUTY, BY "MEMBERS OF THE UNIFORMED SERVICES"--- COMMISSIONED OFFICERS, WARRANT OFFICERS AND ENLISTED PERSONS, NO PROVISION BEING MADE THEREIN FOR SUCH PAY FOR AVIATION CADETS. SECTION 528 OF THE ACT, 63 STAT. 837, AMENDS SECTION 4 OF THE ARMY AVIATION CADET ACT, 55 STAT. 240, SO AS TO PROVIDE, INTER ALIA, THAT AVIATION CADETS,"WHILE ON ACTIVE DUTY, SHALL BE ENTITLED TO BE PAID AT THE RATE OF $105 PER MONTH, WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING.'

THUS, UNDER THE CAREER COMPENSATION ACT, AVIATION CADETS ARE NOT SPECIFICALLY INCLUDED IN THE DEFINITION OF MEMBERS OF THE UNIFORMED SERVICES AND THEIR PAY, INCLUDING EXTRA PAY FOR FLYING DUTY, IS PRESCRIBED BY PROVISIONS SEPARATE AND APART FROM THE PROVISIONS FOR PAY AND EXTRA PAY FOR FLYING DUTY FOR "MEMBERS," GENERALLY.

HOWEVER, IT WAS HELD IN 10 COMP. GEN. 264, CITED IN YOUR LETTER, THAT FLYING CADETS, AIR SERVICE, WERE ENLISTED MEN INSOFAR AS THE LAWS RELATING TO REWARDS FOR THE APPREHENSION AND DELIVERY OF DESERTERS WERE CONCERNED. AND IN 20 COMP. GEN. 775, ALSO CITED IN YOUR LETTER, IT WAS HELD THAT A FLYING CADET, AIR CORPS, WAS AN ENLISTED MAN INSOFAR AS THE LAWS RELATING TO ENLISTMENT ALLOWANCES WERE CONCERNED. SECTION 1 OF THE ARMY AVIATION CADET ACT, SUPRA, APPROVED JUNE 3, 1941, 55 STAT. 239, CREATED THE GRADE OF AVIATION CADET "AS A SPECIAL AND SEPARATE ENLISTED GRADE IN THE AIR CORPS, REGULAR ARMY, IN SUBSTITUTION FOR THE GRADE OF FLYING CADET * * *.' THE SAID SECTION 1 IS STILL IN EFFECT AND NO SUBSEQUENT LEGISLATION HAS BEEN FOUND AFFECTING THE CLASSIFICATION OF AVIATION CADETS THEREIN ESTABLISHED.

THE TERM "ENLISTED PERSON" IS NOT DEFINED IN THE CAREER COMPENSATION ACT AND MUST BE DEEMED TO BEAR ITS USUAL AND ACCEPTED MEANING WHEN USED THEREIN. HENCE, IT APPEARS THAT AN AVIATION CADET IS AN "ENLISTED PERSON" WITHIN THE CONTEMPLATION OF SECTION 102 OF THE CAREER COMPENSATION ACT AND THAT AVIATION CADET REYNOLDS IS A "MEMBER" OF THE UNIFORMED SERVICES WITHIN THE CONTEMPLATION OF THAT SECTION AND OF SECTION 402.

THE SAID SECTION 402, 63 STAT. 816, 818, PROVIDES, IN PERTINENT PART, THAT:

(A) UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; (2) THAT SUCH DISABILITY IS NOT DUE TO THE INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT OF SUCH MEMBER AND THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE OF SUCH MEMBER; (3) THAT SUCH DISABILITY IS 30 PERCENTUM OR MORE IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; (4) THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED, THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED FURTHER, THAT IF CONDITION (3) ABOVE IS NOT MET BECAUSE THE DISABILITY IS DETERMINED TO BE LESS THAN 30 PERCENTUM, THE MEMBER CONCERNED SHALL NOT BE ELIGIBLE FOR ANY DISABILITY RETIREMENT PROVIDED IN THIS SECTION, BUT MAY BE SEPARATED FOR PHYSICAL DISABILITY FROM THE SERVICE CONCERNED AND UPON SEPARATION SHALL BE ENTITLED TO RECEIVE DISABILITY SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THIS TITLE: PROVIDED FURTHER, THAT ANY DISABILITY SHOWN TO HAVE BEEN INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY SHALL BE CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY.

(D) A MEMBER OF THE UNIFORMED SERVICES WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE PURSUANT TO SUBSECTIONS (A), (B), OR (C) OF THIS SECTION, FOR THE PERIOD DURING WHICH HIS NAME IS CARRIED ON SUCH TEMPORARY DISABILITY RETIRED LIST, BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS, OR A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THIS TITLE, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER * * *. PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH DISABILITY RETIREMENT PAY EXCEED 75 PERCENTUM OF THE BASIC PAY UPON WHICH THE COMPUTATION IS BASED * * *.

SECTION 409 OF THE ABOVE ACT, 63 STAT. 823, PROVIDES THAT:

A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, ORRATING AS MAY BE AUTHORIZED BY LAW AT TIME OF RETIREMENT.

IT IS NOT STATED IN THE QUOTED ORDERS OF OCTOBER 2, 1950, OR IN COLONEL COMINGS' LETTER, OR IN THE LETTER OF THE ACTING SECRETARY, THAT MR. REYNOLDS' DISABILITY WAS INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY, OR THAT SUCH DISABILITY WAS NOT DUE TO HIS INTENTIONAL MISCONDUCT OR WILLFUL NEGLECT, OR THAT SUCH DISABILITY WAS NOT INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE, OR THAT SUCH DISABILITY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, OR THAT IT HAS BEEN DETERMINED THAT HIS DISABILITY IS 70 PERCENTUM IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION. IN THE CONSIDERATION OF THE QUESTION PRESENTED IT WILL BE ASSUMED, HOWEVER, THAT MR. REYNOLDS WAS ELIGIBLE FOR RETIREMENT, WITH PERMANENT DISABILITY OF 70 PERCENTUM, UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT. THERE REMAINS THE MATTER OF THE AMOUNT OF RETIRED PAY TO WHICH HE IS ENTITLED.

SECTION 8 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 796 ( PUBLIC LAW 771, 81ST CONGRESS), MENTIONED IN COLONEL COMINGS' LETTER, PROVIDES THAT, FOR THE PURPOSES OF THAT ACT, AVIATION CADETS WITH DEPENDENTS SHALL BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS UNDER THE CONDITIONS AND AT THE RATES PRESCRIBED FOR MEMBERS IN PAY GRADE E 4. APPARENTLY, BECAUSE OF THIS TEMPORARY PROVISION--- SECTION 8 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 TERMINATES APRIL 30, 1953--- FOR QUARTERS ALLOWANCE TO ENLISTED CADETS AT THE RATES PRESCRIBED FOR ENLISTED MEN IN PAY GRADE E-4, IT HAS BEEN SUGGESTED THAT MR. REYNOLDS MAY BE ENTITLED TO RETIRED PAY COMPUTED AS IF HE WERE AN ENLISTED MAN OF THAT PAY GRADE. (MONTHLY BASIC PAY FOR ENLISTED MEN OF PAY GRADE E 4 RANGES FROM $117.60, IF WITH LESS THAN 2 YEARS' SERVICE, TO $191.10, IF WITH OVER 18 YEARS' SERVICE.) NOTWITHSTANDING THE AUTHORIZATION FOR PAYMENT OF AN ALLOWANCE FOR QUARTERS EQUAL TO THE ALLOWANCE PAID A CERTAIN ENLISTED GRADE, THE CITED PROVISIONS OF THE DEPENDENTS ASSISTANCE ACT OF 1950 DO NOT PURPORT TO AFFECT THE PAY OF AVIATION CADETS AS FIXED BY SECTION 528 OF THE CAREER COMPENSATION ACT OF $105 PER MONTH, NOR DOES IT APPEAR THAT THERE IS ANY OTHER RATE OF PAY PRESCRIBED BY LAW FOR HIS "ENLISTED RATING.' IT FOLLOWS THAT, ON THE ASSUMPTION STATED ABOVE, MR. REYNOLDS IS ENTITLED TO RETIRED PAY AT THE RATE OF $73.50 PER MONTH, COMPUTED AS 70 PERCENTUM OF $105, THE "MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM * * * AT THE TIME OF HIS RETIREMENT.'

ACCORDINGLY, THE VOUCHER IS RETURNED HEREWITH FOR TRANSMITTAL TO COLONEL COMINGS, PAYMENT THEREON BEING AUTHORIZED, IF IT IS OTHERWISE CORRECT.