B-114649, AUGUST 11, 1953, 33 COMP. GEN. 71

B-114649, AUGUST 11, 1953, 33 COMP. GEN. 71

PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD AN ARMY OFFICER WHO RETIRED SUBSEQUENT TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND WHO, UNDER SECTION 415 OF THAT ACT ELECTED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, MAY NOW RESCIND HIS PRIOR ELECTION AND BECOME ENTITLED TO RETIREMENT PAY COMPUTED UNDER THE LAWS IN EFFECT AT THE TIME OF RETIREMENT AS IF THE SAID PRIOR ELECTION HAD NEVER BEEN MADE.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL JAMES H. COMINGS, DEPARTMENT OF THE ARMY, AUGUST 11, 1953:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 20, 1953, WITH ENCLOSURES, FORWARDED BY UNDATED FIRST ENDORSEMENT OF THE CHIEF OF FINANCE, AND RECEIVED IN THIS OFFICE APRIL 13, 1953, PRESENTING FOR DECISION THE QUESTION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER (TRANSMITTED WITH YOUR LETTER) IN FAVOR OF COLONEL JOHN S. ARNOLD, AUF, RETIRED, IN THE AMOUNT OF $3,800.92, REPRESENTING INCREASED RETIRED PAY FOR THE PERIOD JULY 1, 1950, TO FEBRUARY 28, 1953. SUCH INCREASE IS THE DIFFERENCE BETWEEN 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 26 AND LESS THAN 27 YEARS' SERVICE, UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, 75 PERCENTUM OF THE ACTIVE DUTY PAY OF AN OFFICER OF THAT GRADE AND LENGTH OF SERVICE, UNDER THE LAWS IN EFFECT SUBSEQUENT TO THAT DATE.

IT APPEARS THAT COLONEL ARNOLD HAD ACTIVE MILITARY SERVICE FROM JULY 2, 1916, TO FEBRUARY 28, 1917; FROM MARCH 31, 1917, TO MARCH 17, 1919, AND FROM (DATE NOT FURNISHED) TO OCTOBER 5, 1946; THAT ON JUNE 4, 1948, HE ENTERED ON EXTENDED ACTIVE DUTY IN THE GRADE OF LIEUTENANT COLONEL, ARMY OF THE UNITED STATES; THAT ON SEPTEMBER 30, 1949, HE WAS ADMITTED TO WALTER REED ARMY HOSPITAL FOR PHYSICAL EVALUATION; THAT ON APRIL 3, 1950, THE ARMY PHYSICAL DISABILITY APPEAL BOARD CONCURRED IN THE FINDINGS OF THE PHYSICAL REVIEW COUNCIL RECOMMENDATION THAT HE BE PERMANENTLY RETIRED FOR PHYSICAL DISABILITY OF 40 PERCENTUM; AND THAT HE WAS SO RETIRED EFFECTIVE APRIL 30, 1950. ALSO, IT APPEARS THAT SINCE THE OFFICER HAD SERVED SATISFACTORILY IN THE GRADE OF COLONEL FROM NOVEMBER 17, 1945, TO OCTOBER 5, 1946, HE WAS RETIRED IN THAT GRADE. (SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085.) IT FURTHER APPEARS THAT AS OF APRIL 30, 1950, COLONEL ARNOLD HAD TOTAL SERVICE OF 26 YEARS, 21 DAYS.

SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE OCTOBER 1, 1949, 63 STAT. 816, PROVIDES, INTER ALIA, THAT A MEMBER OF THE UNIFORMED SERVICE RETIRED BY REASON OF PHYSICAL DISABILITY OF 30 PERCENTUM OR MORE, IS ENTITLED TO RECEIVE 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 HIS RETIREMENT -- OR OF A HIGHER TEMPORARY RANK, GRADE, OR RATING IN WHICH HE SERVED SATISFACTORILY PRIOR TO RETIREMENT--- BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF HIS ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AT THE TIME OF HIS RETIREMENT.

SECTION 415 OF THE ABOVE ACT, 63 STAT. 825, ORIGINALLY PROVIDED THAT:

ANY MEMBER WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS A HOSPITAL PATIENT AND WHO WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS ACT IS RETIRED AS A RESULT OF A PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED AS OF THE DATE OF ENACTMENT OF THIS ACT, MAY ELECT TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON THE DATE PRECEDING THE DATE OF ENACTMENT OF THIS ACT.

SINCE COLONEL ARNOLD WAS RETIRED ON APRIL 30, 1950, MORE THAN SIX MONTHS AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, THE SAID SECTION 415, AS ORIGINALLY ENACTED, DID NOT APPLY IN HIS CASE. ACCORDINGLY, HIS POSSIBLE ELECTIONS AT THE TIME OF HIS RETIREMENT WERE THOSE OUTLINED IN SECTION 4O2 OF THE ACT, SUPRA. IT IS STATED THAT COLONEL ARNOLD, AT THE TIME OF HIS RETIREMENT, WAS ENTITLED TO CREDIT FOR 13 YEARS' ACTIVE SERVICE. WHETHER HE THEN ELECTED TO RECEIVE RETIREMENT PAY ON THE BASIS OF SUCH SERVICE (32 1/2 PERCENTUM OF ACTIVE DUTY PAY), OR ON THE BASIS OF HIS PERCENTAGE OF DISABILITY (40 PERCENTUM OF ACTIVE DUTY PAY) IS NOT STATED.

THE ACT OF MAY 10, 1950, 64 STAT. 158, AMENDED THE ABOVE SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO READ AS FOLLOWS:

ANY MEMBER WHO, ON OCTOBER 1, 1949, WAS A HOSPITAL PATIENT AND WHO, PRIOR TO JANUARY 1, 1951, IS RETIRED AS A RESULT OF A PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS HOSPITALIZED, MAY ELECT TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949.

IT IS STATED THAT ON MAY 23, 1950, COLONEL ARNOLD ELECTED, UNDER THE SAID AMENDED SECTION 415, TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, AT THE RATE OF $385 PER MONTH. APPARENTLY, THIS FIGURE REPRESENTED 75 PERCENTUM OF $513.33, THE MONTHLY ACTIVE DUTY PAY, UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, OF A COLONEL WITH MORE THAN 24 AND LESS THAN 27 YEARS' SERVICE.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, PROVIDES THAT:

THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

IN DECISION OF THIS OFFICE DATED AUGUST 13, 1951, B-102149, 31 COMP. GEN. 28, IT WAS HELD THAT AN OFFICER OF THE REGULAR ARMY, OR ONE OF THE RESERVE COMPONENTS THEREOF, WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, IS ENTITLED, UNDER THE FOURTH PARAGRAPH OF SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, TO HAVE HIS RETIRED PAY COMPUTED AT 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

THE QUESTION HERE PRESENTED IS WHETHER COLONEL ARNOLD, HAVING ELECTED UNDER SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, TO RECEIVE DISABILITY RETIREMENT PAY UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, MAY NOW--- AFTER THE EFFECT OF THE LAW HAS BEEN CLARIFIED BY DECISION--- RESCIND HIS PRIOR ELECTION AND BECOME ENTITLED TO RETIREMENT PAY UNDER THE LAWS IN EFFECT AT THE TIME OF HIS RETIREMENT, AS IF THE SAID PRIOR ELECTION HAD NEVER BEEN MADE. SUCH ELECTION APPEARS TO HAVE BEEN MADE BEFORE THE EFFECT OF THE PERTINENT STATUTORY PROVISIONS WAS DETERMINED AND UNDER SUCH CIRCUMSTANCES IT IS CONCLUDED THAT THE ELECTION MAY BE RESCINDED. COMPARE DECISION OF AUGUST 30, 1951, B-103324, AND DECISION OF OCTOBER 3, 1952, ANSWER TO THE FIFTH QUESTION, 32 COMP. GEN. 159, 162. HENCE, IF COLONEL ARNOLD ACTUALLY RESCINDS THE ELECTION HE WOULD BECOME ENTITLED TO RETIREMENT PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 26 AND LESS THAN 27 YEARS' SERVICE, UNDER THE LAWS IN EFFECT ON OCTOBER 1, 1949, AND SUBSEQUENT THERETO.

HOWEVER, THE VOUCHER PRESENTED COVERS THE PERIOD JULY 1, 1950, TO FEBRUARY 28, 1953. DUE TO THE VOLUME OF WORK BEFORE THIS OFFICE, CONSIDERATION COULD NOT BE GIVEN TO THIS CASE PRIOR TO JULY 1, 1953. HENCE, THE PORTION OF THE VOUCHER COVERING THE PERIOD FROM JULY 1, 1950, TO JUNE 30, 1951, NOW IS CHARGEABLE TO A LAPSED APPROPRIATION, AND IS NOT PAYABLE BY THE DEPARTMENT OF THE ARMY.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH IS NOT AUTHORIZED IN ITS PRESENT FROM, BUT IS AUTHORIZED--- IF THE PRIOR ELECTION IS RESCINDED--- IF THE VOUCHER BE AMENDED TO COVER THE PERIOD JULY 1, 1951, TO FEBRUARY 28, 1953. CLAIM MAY BE PRESENTED TO THIS OFFICE FOR PERIODS PRIOR TO JULY 1, 1951.