B-117980, MARCH 8, 1954, 33 COMP. GEN. 381

B-117980, MARCH 8, 1954, 33 COMP. GEN. 381

PAY - RETIRED - EFFECTIVE DATE - APPLICATIONS PROCESSED PRIOR TO PRICE V. UNITED STATES OFFICERS OF UNIFORMED SERVICES WHO, PRIOR TO CASE OF PRICE V. UNITED STATES, 121 C.1CLS. 664--- WHICH HELD THAT SERVICE IN NATIONAL GUARD SUBSEQUENT TO PASSAGE OF DICK ACT OF 1903 WAS SERVICE IN ,FEDERALLY RECOGNIZED NATIONAL GUARD"--- SUBMITTED APPLICATION FOR RETIREMENT UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, AND WERE DETERMINED INELIGIBLE DUE TO INSUFFICIENT FEDERAL SERVICE AND WHO WOULD HAVE BEEN ELIGIBLE FOR RETIREMENT HAD NATIONAL GUARD SERVICE UNDER DICK ACT BEEN CREDITED, WILL BE ENTITLED UPON APPROVAL OF THEIR ORIGINAL RETIREMENT APPLICATIONS TO RETIRED PAY FROM THE DATES ON WHICH SUCH PAY WOULD HAVE BEGUN HAD THE DECISIONS IN THE PRICE CASE AND IN 30 COMP. GEN. 287 BEEN ISSUED PRIOR TO RECEIPT OF THEIR APPLICATIONS. WHILE TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 PROVIDES THAT RETIRED PAY SHALL BE GRANTED UPON APPLICATION THEREFOR, NO PARTICULAR FORM OF APPLICATION IS PRESCRIBED, AND THEREFORE AN INDIVIDUAL WHO INQUIRED IN WRITING AS TO ELIGIBILITY FOR BENEFITS UNDER TITLE III AND WAS ADVISED THAT THE DID NOT HAVE SUFFICIENT SERVICE TO QUALIFY SHOULD BE CONSIDERED AS IN THE SAME POSITION AS AN INDIVIDUAL WHOSE CORRESPONDENCE WAS TREATED AS AN APPLICATION, WITH A FORMAL DENIAL BECAUSE OF INSUFFICIENT SERVICE; UNLESS SOME REASON IS APPARENT FOR CONCLUDING IN A PARTICULAR CASE THAT THE PERSON WAS NOT INITIATING ACTION TO RECEIVE THE BENEFITS OF THE STATUTE. OFFICERS OF THE UNIFORMED SERVICES NOW PAST AGE 60 WHO HAD NOT SUBMITTED AN APPLICATION OR CORRESPONDED WITH THE DEPARTMENT OF DEFENSE REGARDING RETIRMENT UNDER ACT OF JUNE 29, 1948, BUT WHO NOW, IN VIEW OF DECISION IN PRICE V. UNITED STATES, 121 C.1CLS 664--- WHICH HELD THAT SERVICE IN NATIONAL GUARD SUBSEQUENT TO PASSAGE OF DICK ACT OF 1903 WAS SERVICE IN FEDERALLY RECOGNIZED NATIONAL GUARD--- HAVE FILED APPLICATIONS FOR RETIREMENT UNDER THE ACT, UPON APPROVAL OF THE APPLICATION, ARE ENTITLED TO RETIRED PAY EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION WAS RECEIVED OR THE FIRST DAY OF THE MONTH IN WHICH THE APPLICANT BECAME 60 YEARS OLD AND OTHERWISE QUALIFIED, WHICHEVER IS LATER. THE ESTATES OF OFFICERS OF THE UNIFORMED SERVICES RETIRED UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AS WELL AS THE ESTATES OF THOSE OFFICERS FOUND INELIGIBLE FOR RETIREMENT UNDER THE ACT BECAUSE OF INSUFFICIENT SERVICE, ARE ENTITLED TO RECEIVE ANY BENEFITS WHICH SUCH OFFICERS WOULD HAVE RECEIVED IF STILL LIVING SUBSEQUENT TO THE ISSUANCE OF THE DECISION IN PRICE V UNITED STATES, 121 C.CLS. 664, WHICH HELD SERVICE IN THE NATIONAL GUARD SUBSEQUENT TO THE PASSAGE OF THE DICK ACT OF 1903 WAS SERVICE IN THE FEDERALLY RECOGNIZED NATIONAL GUARD, AND CLAIMS FOR SUCH AMOUNTS SHOULD BE TRANSMITTED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT. ADMINISTRATIVE OFFICE MAY REPROCESS, WITHOUT FURTHER ACTION BY OFFICERS CONCERNED, RETIREMENT APPLICATIONS OF OFFICERS OF UNIFORMED SERVICES WHO, PRIOR TO CASE OF PRICE V. UNITED STATES, 121 C.1CLS. 664 -- WHICH HELD THAT SERVICE IN THE NATIONAL GUARD SUBSEQUENT TO PASSAGE OF THE DICK ACT OF 1903 WAS SERVICE IN THE FEDERALLY RECOGNIZED NATIONAL GUARD--- FILED RETIREMENT APPLICATIONS UNDER ACT OF JUNE 29, 1948, AND WERE DENIED RETIREMENT BENEFITS BECAUSE OF INSUFFICIENT SERVICE BUT WHO HAD CREDITABLE NATIONAL GUARD SERVICE PRIOR TO 1916.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MARCH 8, 1954:

REFERENCE IS MADE TO LETTER DATED DECEMBER 8, 1953, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION ON FIVE QUESTIONS (LISTED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 77, MILITARY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, CONCERNING RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087.

SUBSECTION 302 (A) OF THE ACT, 62 STAT. 1087, PROVIDES, IN PERTINENT PART:

ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933 * * * AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY * * * . ( ITALICS SUPPLIED.)

IT WAS HELD THAT SERVICE IN THE NATIONAL GUARD PRIOR TO ENACTMENT OF THE NATIONAL DEFENSE ACT ON JUNE 3, 1916, 39 STAT. 166, WAS NOT SERVICE IN THE "FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933" WITHIN THE CONTEMPLATION OF THE QUOTED SUBSECTION. BULLETIN OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, JULY-SEPTEMBER 1949, PAGE 156. HOWEVER, IN PRICE V. UNITED STATES, 121 C.1CLS. 664, DECIDED OCTOBER 2, 1951, IT WAS HELD THAT SERVICE IN THE NATIONAL GUARD SUBSEQUENT TO THE PASSAGE OF THE DICK ACT OF JANUARY 21, 1903, 32 STAT. 775, WAS SERVICE IN THE "FEDERALLY RECOGNIZED NATIONAL GUARD," AS THAT TERM WAS USED IN THE SUBSECTION. THE QUESTIONS SUBMITTED, WHICH ARE SEPARATELY QUOTED AND DISCUSSED BELOW, PERTAIN TO THE EFFECT OF THE PRICE DECISION UPON THE RIGHTS OF VARIOUS INDIVIDUALS WHO HAD SERVICE IN THE NATIONAL GUARD BETWEEN JANUARY 21, 1903, AND JUNE 3, 1916.

QUESTION 1

IN CASES OF OFFICERS WHO SUBMITTED APPLICATIONS FOR RETIREMENT UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948 (62 STAT. 1089) AND WERE DETERMINED INELIGIBLE FOR RETIREMENT BY THE DEPARTMENT OF DEFENSE DUE TO INSUFFICIENT FEDERAL SERVICE, AND WHO, PROVIDED NATIONAL GUARD SERVICE UNDER THE DICK ACT (32 STAT. 775) IS CREDITED, WOULD HAVE BEEN ELIGIBLE FOR RETIREMENT, WOULD THE EFFECTIVE DATE FOR RETIREMENT PAY BE THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT APPLICATION IS APPROVED, OR RETROACTIVE TO THE DATE INDIVIDUAL WOULD NORMALLY HAVE RECEIVED RETIRED PAY HAD SUCH SERVICE BEEN CREDITABLE AT THE TIME APPLICATION WAS SUBMITTED?

IT WAS HELD IN 30 COMP. GEN. 287 (MODIFYING 28 COMP. GEN. 321, 325) THAT:

* * * IN ANY CASE WHERE THE APPLICANT (FOR RETIREMENT BENEFITS UNDER TITLE III OF THE ACT OF JUNE 29, 1948), QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948, OR BETWEEN THAT DATE AND JANUARY 1, 1949--- THE EFFECTIVE DATE OF THAT ACT--- HE MAY BE PAID RETIRED PAY BEGINNING WITH THE DATE HE QUALIFIED THEREFOR, PROVIDED THAT HIS APPLICATION WAS TIMELY FILED. ALL OTHER CASES WHERE THE APPLICATION IS OR HAS BEEN PROPERLY APPROVED, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION THEREFOR IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MEETS THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THEREBY BECOMES ELIGIBLE FOR SUCH RETIRED PAY, WHICHEVER IS LATER.

THE OFFICERS REFERRED TO IN QUESTION 1, UPON APPROVAL OF THEIR ORIGINAL APPLICATIONS, WILL BE ENTITLED TO RETIRED PAY FROM THE DATES ON WHICH SUCH PAY WOULD HAVE BEGUN HAD THE DECISIONS IN THE PRICE CASE AND IN 30 COMP. GEN. 287 BEEN ISSUED PRIOR TO THE RECEIPT OF THEIR APPLICATIONS.

QUESTION 2

IN CASES OF OFFICERS NOW PAST AGE 60 WHO HAD NOT SUBMITTED AN APPLICATION FOR RETIREMENT BUT WHO HAD CORRESPONDED PREVIOUSLY WITH THE DEPARTMENT REGARDING RETIREMENT UNDER ACT OF JUNE 29, 1948, AND HAD BEEN ADVISED THAT NATIONAL GUARD SERVICE PRIOR TO 1916 WAS NOT CREDITABLE AND THAT ACCORDINGLY THEY WERE NOT ELIGIBLE FOR RETIREMENT, WOULD SUCH CORRESPONDENCE BE CONSIDERED AS AN APPLICATION FOR RETIREMENT SO AS TO PLACE THE OFFICER ON THE RETIRED LIST IN ACCORDANCE WITH YOUR REPLY TO QUESTION 1, OR WOULD A SPECIFIC APPLICATION FOR RETIREMENT BE REQUIRED AND RETIREMENT MADE EFFECTIVE THE END OF THE MONTH SUCH APPLICATION IS APPROVED?

THE STATUTE PROVIDES THAT RETIRED PAY SHALL BE GRANTED "UPON APPLICATION THEREFOR," THUS INDICATING THAT SOME AFFIRMATIVE ACTION IS REQUIRED BY A POTENTIAL BENEFICIARY UNDER TITLE III. HOWEVER, NO PARTICULAR FORM OF APPLICATION IS PRESCRIBED AND IT REASONABLY APPEARS THAT AN INDIVIDUAL WHO INQUIRED IN WRITING AS TO HIS ELIGIBILITY FOR BENEFITS UNDER TITLE III AND WAS ADVISED THAT HE DID NOT HAVE SUFFICIENT SERVICE TO QUALIFY SHOULD BE CONSIDERED AS IN THE SAME POSITION AS AN INDIVIDUAL WHOSE CORRESPONDENCE WAS TREATED AS AN APPLICATION, WITH A FORMAL DENIAL BECAUSE OF INSUFFICIENT SERVICE.

ACCORDINGLY, QUESTION 2 IS ANSWERED BY SAYING THAT THE CORRESPONDENCE OF THE OFFICERS THERE MENTIONED MAY BE CONSIDERED AS APPLICATIONS FOR BENEFITS UNDER TITLE III, WITH CONSEQUENT ENTITLEMENT TO SUCH BENEFITS AS IN THE CASES DISCUSSED IN ANSWER TO QUESTION 1, UNLESS SOME REASON IS APPARENT FOR CONCLUDING IN A PARTICULAR CASE THAT THE OFFICER WAS NOT INITIATING ACTION TO RECEIVE THE BENEFITS OF THE STATUTE.

QUESTION 3

IN CASES OF OFFICERS NOW PAST AGE 60 WHO HAD NOT SUBMITTED AN APPLICATION OR CORRESPONDED WITH THE DEPARTMENT REGARDING RETIREMENT UNDER ACT OF JUNE 29, 1948, BUT WHO NOW, IN VIEW OF THE COURT OF CLAIMS DECISION IN THE CASE OF WILLIAM G. PRICE (121 CT.1CL. 664) HAVE FILED APPLICATIONS, WOULD THE EFFECTIVE DATE OF RETIREMENT BE THE LAST DAY OF THE MONTH IN WHICH AGE 60 WAS REACHED, IF OTHERWISE QUALIFIED, OR THE LAST DAY OF THE MONTH IN WHICH THEIR APPLICATION IS APPROVED?

AS TO THESE OFFICERS, THE EFFECTIVE DATE OF ENTITLEMENT TO RETIRED PAY, UPON APPROVAL OF THE APPLICATION, IS THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION WAS RECEIVED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT BECAME 60 YEARS OLD AND OTHERWISE QUALIFIED, WHICHEVER IS LATER. COMPARE ANSWER TO QUESTION 1.

QUESTION 4

IN CONSIDERATION OF THE FACT THAT THESE QUESTIONS INCLUDE OFFICERS WHO HAVE BEEN RETIRED UNDER TITLE III, AS WELL AS THOSE FOUND INELIGIBLE FOR RETIREMENT BENEFITS BECAUSE OF INSUFFICIENT SERVICE, ARE THE ESTATES OF SUCH OFFICERS WHO ARE NOW DECEASED, ENTITLED TO RECEIVE ANY BENEFITS WHICH THE OFFICERS WOULD HAVE RECEIVED IF STILL LIVING?

BY REASON OF THE DECISION IN THE PRICE CASE, IT NOW MUST BE CONCLUDED THAT THESE OFFICERS DID NOT RECEIVE THE FULL AMOUNTS OF RETIRED PAY TO WHICH THEY WERE ENTITLED. CLAIMS FOR AMOUNTS DUE THEIR ESTATES ON THAT ACCOUNT SHOULD BE TRANSMITTED TO THE CLAIMS DIVISION OF THIS OFFICE FOR SETTLEMENT.

QUESTION 5

MAY CASE FILES OF APPLICANTS PREVIOUSLY DENIED RETIREMENT BENEFITS BECAUSE OF INSUFFICIENT SERVICE, BUT WHO HAD CREDITABLE NATIONAL GUARD SERVICE PRIOR TO 1916, BE REVIEWED, AND PROVIDED THEY NOW QUALIFY, RETIREMENT ORDERS BE ISSUED AND PAYMENT OF RETIRED PAY EFFECTED, WITHOUT FURTHER ACTION BY THE OFFICERS CONCERNED?

THESE OFFICERS APPEAR TO BE IN THE SAME SITUATION, INSOFAR AS APPLICATIONS ARE CONCERNED, AS THOSE IN QUESTION 1. UNDER THE CIRCUMSTANCES INVOLVED, THIS OFFICE PERCEIVES NO OBJECTION TO REPROCESSING THE APPLICATIONS OF SUCH OFFICERS, WHO HAVE BEEN DENIED RETIRED PAY ON THE GROUND OF INSUFFICIENT SERVICE, WITHOUT FURTHER ACTION IN THE MATTER BY THEM.