B-106203, JANUARY 16, 1952, 31 COMP. GEN. 293

B-106203: Jan 16, 1952

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- WHO WAS VOLUNTARILY RETIRED AFTER 20 YEARS SERVICE UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31. MAY NOT BE COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF THE RANK IN WHICH HE WAS SERVING AT THE TIME OF HIS RETIREMENT UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. YOU REQUEST DECISION AS TO WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED. AT LEAST TEN YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE. UPON HIS OWN APPLICATION HE WAS ON MAY 31. HE WAS ENTITLED TO RETIREMENT PAY AT THE RATE OF 55 PERCENT OF HIS ACTIVE DUTY PAY. IT BEING ALLEGED THAT RETIREMENT PAY AT THAT RATE IS AUTHORIZED BY THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

B-106203, JANUARY 16, 1952, 31 COMP. GEN. 293

RETIREMENT - RETIRED PAY - ARMY OF THE UNITED STATES OFFICERS THE RETIRED PAY OF AN OFFICER OF THE ARMY OF THE UNITED STATES--- AS DISTINGUISHED FROM AN OFFICER OF THE REGULAR ARMY--- WHO WAS VOLUNTARILY RETIRED AFTER 20 YEARS SERVICE UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, MAY NOT BE COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF THE RANK IN WHICH HE WAS SERVING AT THE TIME OF HIS RETIREMENT UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, BY REASON OF SERVICE PRIOR TO NOVEMBER 12, 1918 AS A MEMBER OF THE MILITARY OR NAVAL FORCES.

ASSISTANT COMPTROLLER GENERAL YATES TO LIEUTENANT COLONEL JAMES H. COMINGS, DEPARTMENT OF THE ARMY, JANUARY 16, 1952:

BY FIRST ENDORSEMENT DATED OCTOBER 19, 1951, THE CHIEF OF FINANCE FORWARDED TO THIS OFFICE YOUR LETTER OF AUGUST 20, 1951, TRANSMITTING A VOUCHER, WITH SUPPORTING PAPERS, IN FAVOR OF MAJOR GENERAL COURTNEY WHITNEY, ARMY OF THE UNITED STATES, RETIRED, IN THE AMOUNT OF $303.50, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY AND RETIRED PAY COMPUTED AT THE RATE OF 55 PERCENT OF HIS ACTIVE DUTY PAY FOR THE MONTHS OF JUNE AND JULY 1951. YOU REQUEST DECISION AS TO WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED.

IT APPEARS THAT GENERAL WHITNEY HAD COMPLETED NOT LESS THAN TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AT LEAST TEN YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE. ACCORDINGLY, UPON HIS OWN APPLICATION HE WAS ON MAY 31, 1951, PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 202 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1084. UNDER THE SAID SECTION 202, HE WAS ENTITLED TO RETIREMENT PAY AT THE RATE OF 55 PERCENT OF HIS ACTIVE DUTY PAY. HOWEVER, SINCE HE SERVED AS A MEMBER OF THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HE CLAIMS TO BE ENTITLED TO RETIREMENT PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY, IT BEING ALLEGED THAT RETIREMENT PAY AT THAT RATE IS AUTHORIZED BY THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368.

IT MAY BE NOTED AT THE OUTSET THAT IT IS STATED IN YOUR LETTER THAT, AT THE TIME OF HIS RETIREMENT, GENERAL WHITNEY WAS SERVING IN THE GRADE OF BRIGADIER GENERAL AND IT IS FURTHER STATED IN YOUR LETTER THAT HE WAS ADVANCED TO THE GRADE OF MAJOR GENERAL UNDER AUTHORITY OF SECTION 203 (F) OF THE ACT OF JUNE 29, 1948, 63 STAT. 809. IN THAT CONNECTION IT MAY BE STATED THAT IT IS NOT APPARENT TO THIS OFFICE HOW SUCH SECTION COULD BE CONSIDERED AS AUTHORITY FOR ADVANCING GENERAL WHITNEY ON THE RETIRED LIST TO ANY GRADE BUT THE TEMPORARY GRADE IN WHICH HE WAS SERVING AT THE TIME OF RETIREMENT.

WITH RESPECT TO THE APPLICABILITY OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, TO GENERAL WHITNEY'S CASE YOU ARE ADVISED THAT IN DECISION OF MAY 6, 1947, B 63359, TO THE SECRETARY OF THE NAVY, IT WAS HELD, INTER ALIA, THAT SUCH PROVISIONS APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT THEREFORE, AN OFFICER OF A RESERVE COMPONENT IS NOT ENTITLED TO ITS BENEFITS. SEE, ALSO, DECISION OF JULY 27, 1950, B-94125, ADDRESSED TO COLONEL B. J. TULLINGTON, F.C., U.S. ARMY, IN THE CASE OF COLONEL JOHN L. ANDERSON, ARMY OF THE UNITED STATES, RETIRED, ARMY SERVICE NO. O 181053. AND, WHILE IT WAS SAID IN DECISION OF AUGUST 13, 1951, B 102149, 31 COMP. GEN. 28, THAT MEMBERS OF EITHER THE REGULAR OR THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY AFTER OCTOBER 1, 1942, ARE ENTITLED TO SUCH BENEFITS, THAT CONCLUSION WAS BASED SOLELY ON SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, WHICH EXPRESSLY PROVIDES THAT ALL MEMBERS OF THE RESERVE COMPONENTS THERETOFORE OR THEREAFTER RETIRED OR GRANTED RETIREMENT PAY "BECAUSE OF PHYSICAL DISABILITY" SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES. NO SIMILAR PROVISION WAS MADE FOR MEMBERS OF THE RESERVE COMPONENTS RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY AND INSOFAR AS THEY ARE CONCERNED, THE DECISION OF MAY 6, 1947, SUPRA, IS STILL FOR APPLICATION. HENCE, SINCE GENERAL WHITNEY WAS A MEMBER OF A RESERVE COMPONENT AND SINCE HE WAS NOT RETIRED FOR PHYSICAL DISABILITY HE IS NOT ENTITLED TO THE BENEFITS IN QUESTION. ACCORDINGLY, THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETAINED IN THIS OFFICE, PAYMENT THEREON NOT BEING AUTHORIZED.