B-114154, MAY 2, 1961

B-114154: May 2, 1961

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF MARCH 9. HIS CLAIM IS STATED TO BE PREDICATED ON OUR DECISION OF OCTOBER 6. BROCHE WAS BORN APRIL 15. WAS HONORABLY DISCHARGED DECEMBER 19. WAS HONORABLY DISCHARGED FEBRUARY 28. IT APPEARS THAT HE WAS APPOINTED A CAPTAIN. THAT HE WAS FEDERALLY RECOGNIZED AUGUST 26. THAT HE WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE JANUARY 12. THAT HE WAS HONORABLY DISCHARGED NOVEMBER 29. IS TO THE HEADNOTE. - AND WHO IS RECEIVING RETIRED PAY COMPUTED UNDER SECTION 402 (D). IS ENTITLED TO RETIRED PAY COMPUTED ON THE HIGHER RESERVE GRADE * * *.'. MCGRATH MAY HAVE "HELD" THE GRADE OF MAJOR WHEN HE WAS PLACED ON THE EMERGENCY OFFICERS" RETIRED LIST IN THE GRADE OF CAPTAIN.

B-114154, MAY 2, 1961

TO FINANCE OFFICER, VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1960, WITH ENCLOSURES, FILE C-231 477, BROCHE, ARTHUR T., CODE 72, 3072/242A, REQUESTING AN OPINION AS TO THE ENTITLEMENT OF MR. ARTHUR T. BROCHE TO AN INCREASE IN HIS EMERGENCY OFFICERS' RETIREMENT PAY. IN A LETTER DATED DECEMBER 26, 1959, MR. BROCHE REQUESTS THAT HIS RETIRED PAY BE BASED ON THE HIGHER RANK OF CAPTAIN WHICH HE STATES HE HELD ON THE DATE OF HIS RETIREMENT RATHER THAN UPON THE RANK OF FIRST LIEUTENANT. HIS CLAIM IS STATED TO BE PREDICATED ON OUR DECISION OF OCTOBER 6, 1958, B 136900, 38 COMP. GEN. 268.

IT APPEARS FROM OUR FILES THAT MR. BROCHE WAS BORN APRIL 15, 1892; THAT HE SERVED AS AN ENLISTED MAN OF THE ILLINOIS NATIONAL GUARD FROM JUNE 9, 1908, TO MARCH 25, 1917; THAT HE ENTERED FEDERAL SERVICE MARCH 26, 1917; AND WAS HONORABLY DISCHARGED DECEMBER 19, 1917. HE ACCEPTED APPOINTMENT AND ENTERED ON ACTIVE DUTY AS FIRST LIEUTENANT, INFANTRY, ON DECEMBER 20, 1917, AND WAS HONORABLY DISCHARGED FEBRUARY 28, 1919, A FIRST LIEUTENANT. ALSO, IT APPEARS THAT HE WAS APPOINTED A CAPTAIN, COAST ARTILLERY CORPS, ILLINOIS NATIONAL GUARD, ON AUGUST 1, 1923; THAT HE WAS FEDERALLY RECOGNIZED AUGUST 26, 1924; THAT HE WAS TRANSFERRED TO THE NATIONAL GUARD RESERVE JANUARY 12, 1931; AND THAT HE WAS HONORABLY DISCHARGED NOVEMBER 29, 1934.

MR. BROCHE'S REFERENCE TO OUR DECISION OF OCTOBER 6, 1958, IS TO THE HEADNOTE, STATING, IN PERTINENT PART:

"A RESERVE OFFICER WHO RETIRED FOR PHYSICAL DISABILITY IN HIS ACTIVE DUTY GRADE PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- AND WHO IS RECEIVING RETIRED PAY COMPUTED UNDER SECTION 402 (D), OF THE ACT, BUT WHO HELD A HIGHER RESERVE GRADE AT THE TIME OF RETIREMENT, IS ENTITLED TO RETIRED PAY COMPUTED ON THE HIGHER RESERVE GRADE * * *.'

IN A LETTER DATED JULY 21, 1959, A-44840, TO MR. H. R. OWSLEY, YOUR PREDECESSOR AS FINANCE OFFICER, VETERANS BENEFITS OFFICE, WE EXPRESSED OUR VIEWS IN A SIMILAR CASE CONCERNING JAMES G. MCGRATH, YOUR FILE NO. C-1 270 847. WE THERE STATED THAT, 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 (136 CT.CL. 211), LOWELL (141 CT.CL. 111), AND BUDD (141 CT.CL. 123/--- 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 CT.CL. 251.

THE ACT OF MAY 24, 1928, 45 STAT. 735, PROVIDED RETIRED PAY FOR OFFICERS WHO SUFFERED PERMANENT DISABILITY OF 30 PERCENT OR MORE DURING WORLD WAR I AT THE RATE OF 75 PERCENT OF THE PAY TO WHICH THEY WERE ENTITLED WHEN DISCHARGED FROM THEIR WORLD WAR I COMMISSIONED SERVICE. EFFECTIVE APRIL 4, 1929, MR. BROCHE WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST ESTABLISHED BY THE ABOVE ACT, WITH RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A FIRST LIEUTENANT, THE RANK HELD BY HIM AT THE TIME OF HIS DISCHARGE FROM HIS WORLD WAR I SERVICE.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, PROVIDED THAT INDIVIDUALS THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY MIGHT ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT. SECTION 402 (D) OF THE ACT, 63 STAT. 818, PROVIDED THAT DISABILITY RETIREMENT PAY SHOULD BE COMPUTED ON THE MONTHLY BASIC PAY OF THE "RANK, GRADE, OR RATING" HELD AT THE TIME OF RETIREMENT. MR. BROCHE HAS ELECTED, UNDER THE ABOVE SECTION 411, TO RECEIVE RETIREMENT PAY UNDER THE PROVISIONS OF THE SAID SECTION 402 (D), AND SUCH PAY HAS BEEN COMPUTED ON THE BASIC PAY OF A FIRST LIEUTENANT WITH OVER 14 YEARS' SERVICE, THE MAXIMUM CREDIT FOR SERVICE IN THAT GRADE.

WHILE HIS STATUS IN THE NATIONAL GUARD SUBSEQUENT TO WORLD WAR I WAS THAT OF CAPTAIN, THE ABOVE-MENTIONED PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, MADE APPLICABLE TO HIM BECAUSE OF HIS ELECTION, ARE NOT UNDERSTOOD BY THIS OFFICE TO AUTHORIZE RETIRED PAY BASED ON THAT RANK. PROPERLY WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IN THE "RANK, GRADE, OR RATING" HELD BY HIM AT THE TIME OF HIS DISCHARGE FROM HIS WORLD WAR I SERVICE, NAMELY, THAT OF FIRST LIEUTENANT. HE IS ENTITLED TO RETIRED PAY ACCORDINGLY.

WE HAVE BEEN INFORMALLY ADVISED THAT FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1952, MR. BROCHE WAS PAID RETIRED PAY AT THE RATE OF $261.85 PER MONTH; AND THAT FROM MAY 1, 1952, TO DECEMBER 31, 1952, HE WAS PAID AT THE RATE OF $272.32 PER MONTH. THESE RATES ARE CORRECT. THE RATE OF $272.32 PER MONTH CONTINUED IN EFFECT UNTIL MARCH 31, 1955. UNDER THE ACT OF MARCH 21, 1955, 69 STAT. 18, EFFECTIVE APRIL 1, 1955, HIS RETIRED PAY WOULD BE $310.05 PER MONTH. UNDER THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF MAY 20, 1958, 72 STAT. 128, EFFECTIVE JUNE 1, 1958, AN INCREASE OF SIX PERCENT OF RETIREMENT PAY RECEIVED ON THE DAY BEFORE THE EFFECTIVE DATE OF THE ACT WAS AUTHORIZED. RETIREMENT PAY OF $310.05 INCREASED BY SIX PERCENT ($18.60) TOTALS $328.65.

IN OUR OPINION, THE ABOVE RATES ARE APPLICABLE TO MR. BROCHE'S RETIRED PAY.