B-116091, FEB 5, 1954

B-116091, FEB 5, 1954

PRECIS-UNAVAILABLE

CAPTAIN C. L. CARDWELL, FC:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1953, FORWARDED FROM THE OFFICE OF CHIEF OF FINANCE, REQUESTING DECISION AS TO THE PROPRIETY OF A PROPOSED PAYMENT TO MRS. DELIA BOOTH BALTZELL, AS LEGAL REPRESENTATIVE OF COLONEL ERNEST R. BALTZELL, ARMY OF THE UNITED STATES, RETIRED, DECEASED.

IT IS STATED THAT THE OFFICER WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 25, 1945, AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES; THAT HIS MILITARY RECORDS SUBSEQUENTLY WERE REVIEWED BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS; THAT PURSUANT TO THE RECOMMENDATIONS OF SAID BOARD APPROVED BY THE SECRETARY OF THE ARMY ON MARCH 23, 1953, THE OFFICER'S MILITARY RECORDS WERE CORRECTED TO SHOW (1) THAT HE WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON DECEMBER 25, 1945, AND CERTIFIED, EFFECTIVE AS OF DECEMBER 26, 1945, FOR RETIREMENT PAY BENEFITS UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 456, AND (2) THAT HE WAS PROMOTED TO THE GRADE OF COLONEL AS OF DECEMBER 25, 1945. THE AMOUNT CLAIMED ON THE VOUCHER TRANSMITTED WITH YOUR LETTER REPRESENTS THE DIFFERENCE IN ACTIVE DUTY PAY AND ALLOWANCES BETWEEN THAT OF COLONEL AND LIEUTENANT COLONEL FOR DECEMBER 25, 1945, AND RETIREMENT PAY COMPUTED ON THE GRADE OF COLONEL FOR THE PERIOD FROM DECEMBER 26, 1945, TO OCTOBER 6, 1948, DATE OF DEATH, LESS ALL COMPENSATION PAYMENTS MADE BY THE VETERANS ADMINISTRATION.

IN THE DECISION OF SEPTEMBER 8, 1953, B-116091, TO WHICH REFERENCE IS MADE, IT WAS POINTED OUT THAT UNDER THE APPLICABLE PROVISIONS OF LAW FORMERLY IN EFFECT AN OFFICER OF THE ARMY OF THE UNITED STATES WHO BECAME DISABLED IN LINE OF DUTY AND WHO OTHERWISE MET THE CONDITIONS PRESCRIBED IN THE SAID ACT OF APRIL 3, 1939, WAS ENTITLED TO RECEIVE THE SAME RETIREMENT PAY BENEFITS AS WERE THEN PROVIDED BY LAW (SECTION 1251, R.S., 10 U.S.C. 933) FOR AN OFFICER OF CORRESPONDING GRADE AND LENGTH OF SERVICE OF THE REGULAR ARMY FOUND TO BE INCAPACITATED FOR ACTIVE SERVICE AS A RESULT OF AN INCIDENT OF THE SERVICE.

OFFICERS OF THE REGULAR ARMY RETIRED FROM ACTIVE SERVICE FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, WERE ENTITLED UNDER SECTION 1274, R.S., 10 U.S.C. 971, TO RECEIVE 75 PER CENTUM OF THE PAY OF THE RANK UPON WHICH THEY WERE RETIRED; AND UNDER SECTION 1254, R.S., 10 U.S.C. 1025, GOVERNING RANK ON RETIREMENT GENERALLY, WERE RETIRED FROM ACTIVE SERVICE "UPON THE ACTUAL RANK HELD BY THEM AT THE DATE OF RETIREMENT." INASMUCH AS THE RECORD SHOWED THAT THE OFFICER CONCERNED IN THE SAID DECISION OF SEPTEMBER 8, 1953 (CAPTAIN KARL A. NUERENBERG) WAS RELEASED FROM ACTIVE DUTY ON MARCH 1, 1946, AND WAS CERTIFIED FOR RETIREMENT PAY BENEFITS EFFECTIVE AS OF MARCH 2, 1946, IT NECESSARILY WAS HELD THAT THE CORRECTION OF HIS MILITARY RECORDS TO SHOW THAT HE HAD BEEN PROMOTED TO THE GRADE OF MAJOR, EFFECTIVE AS OF JUNE 3, 1946, A DATE SUBSEQUENT TO THE EFFECTIVE DATE OF HIS RETIREMENT, DID NOT FURNISH ANY PROPER BASIS FOR HIS ADVANCEMENT ON THE RETIRED LIST OR THE PAYMENT OF RETIREMENT BENEFITS BASED ON THE GRADE OF MAJOR. SEE DECISION OF NOVEMBER 29, 1951, B- 106161.

IN THE PRESENT CASE, HOWEVER, THE DECEDENT'S MILITARY RECORDS HAVE BEEN CORRECTED TO SHOW THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY ON DECEMBER 25, 1945; THAT SUCH INCAPACITY WAS AN INCIDENT OF THE SERVICE IN LINE OF DUTY; THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON DECEMBER 25, 1945, AND CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS EFFECTIVE DECEMBER 26, 1945, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939; AND THAT HE WAS PROMOTED TO THE GRADE OF COLONEL, ARMY OF THE UNITED STATES, AS OF DECEMBER 25, 1945.

ON THE CORRECTED RECORD THE DECEDENT'S PROMOTION TO COLONEL THUS BECAME EFFECTIVE ON THE DATE OF HIS RELEASE FROM ACTIVE DUTY DECEMBER 25, 1945, AND, THEREFORE, THE SAID PROMOTION WAS IN FULL FORCE AND EFFECT ON DECEMBER 26, 1945, THE DATE THAT HE WAS CERTIFIED TO BE ELIGIBLE FOR RETIREMENT PAY BENEFITS. SUCH CORRECTION OF THE DECEDENT'S MILITARY RECORDS IS REQUIRED TO BE VIEWED, UNDER THE RULE STATED IN DECISION OF JULY 1, 1953, B-99791, 33 COMP. GEN. 1, AS ESTABLISHING THAT HE MET ALL THE STATUTORY CONDITIONS ENTITLING HIM TO ACTIVE DUTY PAY AND ALLOWANCES AS A COLONEL FOR DECEMBER 25, 1945, AND ALSO TO RECEIVE RETIREMENT PAY BENEFITS FOR THE PERIOD FROM DECEMBER 26, 1945, TO OCTOBER 6, 1948, COMPUTED ON THE GRADE OF COLONEL, THE ACTUAL RANK HELD BY HIM AT THE DATE OF HIS RETIREMENT.

ACCORDINGLY, IF OTHERWISE CORRECT, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH.