B-120533, MARCH 23, 1961, 40 COMP. GEN. 541

B-120533: Mar 23, 1961

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WHO WAS RELIEVED FROM DUTY FOR DISABILITY IN THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER. 1961: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8. KURTH WAS PROMOTED TEMPORARILY TO THE GRADE OF CHIEF WARRANT OFFICER IN THE ARMY OF THE UNITED STATES. HE WAS RELIEVED FROM ACTIVE DUTY ON MAY 24. HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION AS ENTITLED TO RECEIVE RETIREMENT PAY EFFECTIVE MAY 25. WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS. HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.

B-120533, MARCH 23, 1961, 40 COMP. GEN. 541

MILITARY PERSONNEL - RETIREMENT PAY UNDER ACT OF APRIL 3, 1939 - ARMY OF THE UNITED STATES A WARRANT OFFICER, ARMY OF THE UNITED STATES, WHO WAS RELIEVED FROM DUTY FOR DISABILITY IN THE TEMPORARY GRADE OF CHIEF WARRANT OFFICER, AUS, AND CERTIFIED AS BEING ENTITLED TO RETIREMENT PAY UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, WHICH DID NOT CONFER A RETIRED STATUS ON THE MEMBER BUT AUTHORIZED A PAY MORE IN THE NATURE OF A PENSION PREDICATED ON DISABILITY WITHOUT RELATION TO CONTINUED SERVICE MAY NOT BE REGARDED AS A WARRANT OFFICER "HERETOFORE OR HEREAFTER RETIRED FOR DISABILITY," WITHIN THE MEANING OF SECTION 203 (C) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, TO BE ENTITLED TO RETIRED PAY ON THE HIGHER TEMPORARY GRADE OF CHIEF WARRANT OFFICER.

TO THE DISABLED OFFICERS' ASSOCIATION, MARCH 23, 1961:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8, 1960, WRITTEN ON BEHALF OF RICHARD A. KURTH, WARRANT OFFICER, ARMY OF THE UNITED STATES, RETIRED, REQUESTING FURTHER CONSIDERATION OF HIS CLAIM FOR THE DIFFERENCE IN DISABILITY RETIREMENT PAY BETWEEN THAT PAID TO HIM IN THE GRADE OF WARRANT OFFICER, JUNIOR GRADE, AND THAT BASED ON THE GRADE OF CHIEF WARRANT OFFICER.

IT APPEARS THAT ON JANUARY 21, 1942, WHILE SERVING ON ACTIVE DUTY AS A WARRANT OFFICER IN THE MASSACHUSETTS NATIONAL GUARD, MR. KURTH WAS PROMOTED TEMPORARILY TO THE GRADE OF CHIEF WARRANT OFFICER IN THE ARMY OF THE UNITED STATES. BECAUSE OF PHYSICAL DISABILITY INCURRED WHILE IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HE WAS RELIEVED FROM ACTIVE DUTY ON MAY 24, 1946, AND HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION AS ENTITLED TO RECEIVE RETIREMENT PAY EFFECTIVE MAY 25, 1946, IN THE GRADE OF CHIEF WARRANT OFFICER, PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED. THAT SECTION PROVIDED AS FOLLOWS (QUOTING FROM 10 U.S.C. 456, 1946 USED.):

ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS, OTHER THAN FOR SERVICE WITH THE CIVILIAN CONSERVATION CORPS, AND WHO SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE SERVICE DURING SUCH PERIOD AND SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY, INCLUDING FOR THEIR DEPENDENTS THE BENEFITS OF SECTION 903 OF THIS TITLE.

ON JULY 22, 1950, MR. DURTH ADDRESSED A COMMUNICATION TO THE DEPARTMENT OF THE ARMY INQUIRING AS TO HIS PROPER LONGEVITY SERVICE CREDIT AND BY LETTER OF JANUARY 9, 1951, THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, AFTER A REVIEW OF HIS RECORDS ADVISED HIM THAT HE WAS ELIGIBLE TO RECEIVE RETIREMENT PAY BASED ON OVER 30 YEARS' INSTEAD OF OVER 27 YEAR'S SERVICE, BUT ON HIS PERMANENT GRADE OF WARRANT OFFICER, JUNIOR GRADE, NGUS, RATHER THAN ON HIS TEMPORARY GRADE OF CHIEF WARRANT OFFICER. HE WAS ADVISED, ALSO, THAT THE APPROPRIATE FINANCE OFFICE WAS BEING DIRECTED TO ADJUST HIS ACCOUNT, AND SHORTLY THEREAFTER, HE WAS NOTIFIED BY THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THAT AN OVERPAYMENT OF $1,423.39 HAD BEEN MADE TO HIM. TO RELIEVE HIM FROM THE OBLIGATION OF REFUNDING THE OVERPAYMENT, PRIVATE LAW 499, 83D CONGRESS, 2D SESSION, WAS ENACTED.

MR. KURTH IN A LETTER OF DECEMBER 28, 1959, PRESENTED A CLAIM FOR INCREASED DISABILITY RETIREMENT PAY BASED ON THE GRADE OF CHIEF WARRANT OFFICER, COMMENCING FROM JUNE 29, 1948, AND HE CITED AS SUPPORTING AUTHORITY SECTION 5 OF THE ACT OF AUGUST 21, 1941, AS AMENDED BY SECTION 203 (C) OF THE ACT OF JUNE 29, 1948, 10 U.S.C. 594 (1952 USED.), AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT ANY WARRANT OFFICER HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHALL UPON THE COMPLETION OF THIRTY YEARS' SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST, BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY OFFICER, FLIGHT OFFICER, OR WARRANT OFFICER GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY AS DETERMINED BY THE COGNIZANT SECRETARY DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE AT THE TIME OF RETIREMENT: AND PROVIDED FURTHER, THAT ANY WARRANT OFFICER, HERETOFORE OR HEREAFTER RETIRED FOR DISABILITY INCIDENT TO SERVICE, IF ENTITLED TO ADVANCED RETIRED GRADE AND INCREASED RETIRED PAY UNDER THE PROVISIONS OF THIS TITLE, SHALL RECEIVE SUCH ADVANCED GRADE AND INCREASED PAY EFFECTIVE UPON THE ENACTMENT OF THIS TITLE UPON HIS RETIREMENT, WHICHEVER IS LATER.

THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON APRIL 13, 1960, ON THE GROUND THAT MR. KURTH HAD, AS OF MARCH 30, 1960, A TOTAL OF 22 YEARS 4 MONTHS AND 6 DAYS OF COMBINED ACTIVE SERVICE AND SERVICE ON THE RETIRED LIST AND THAT UNDER THE ABOVE-CITED SECTION 203 (C), HE WOULD NOT BECOME ELIGIBLE FOR ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER UNTIL THE COMPLETION OF 30 YEARS' SERVICE.

IN YOUR LETTER OF AUGUST 8, 1960, YOU STATED THAT THE DISALLOWANCE OF THE CLAIM WAS BASED ON AN IMPROPER INTERPRETATION OF SECTION 203 (C), CITING, IN THIS CONNECTION, THE FIFTH PROVISO OF THAT SECTION. ADDITIONALLY, YOU FURNISHED A SHORT SUMMARIZATION OF THE LEGISLATIVE HISTORY OF THAT PROVISO WHICH, YOU CONTEND, INDICATES AN INTENT THAT THE ADVANCEMENT ON THE RETIRED LIST OF PERSONS SUCH AS MR. KURTH, IS NOT CONTINGENT UPON THE COMPLETION OF 30 YEARS' SERVICE.

MR. KURTH IS ENTITLED TO THE RETIREMENT PAY OF THE HIGHER GRADE ONLY IF HE WAS "HERETOFORE * * * RETIRED" WITHIN THE MEANING OF SECTION 203 (C) OF THE 1948 ACT. WHILE HE WAS CERTIFIED TO THE VETERANS ADMINISTRATION AS BEING ENTITLED TO RECEIVE RETIREMENT PAY UNDER THE 1939 ACT, AS AMENDED, HE DID NOT ACQUIRE A STATUS AS A RETIRED WARRANT OFFICER SUCH AS THAT CONTEMPLATED BY OTHER PROVISIONS OF LAW WHICH PROVIDE FOR THE RETIREMENT OF MEMBERS AND THE PLACEMENT OF THEIR NAMES ON THE RETIRED LIST. IN OUR DECISION OF OCTOBER 19, 1943, 23 COMP. GEN. 284, WE HELD THAT RETIRED PAY IS PAID TO OFFICERS OF THE REGULAR ARMY AS CURRENT COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND ONLY WHILE THEY REMAIN IN THE SERVICE (1UNITED STATES V. TYLER, 105 U.S. 244), WHEREAS "RETIREMENT PAY" AUTHORIZED BY THE 1939 ACT FOR OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, WHO SUFFERED DISABILITY WHILE EMPLOYED IN THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT, IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE BUT IS MORE IN THE NATURE OF A PENSION PREDICATED ON THE DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. SEE, IN THIS CONNECTION, 23 COMP. GEN. 700; 32 COMP. GEN. 242; 33 COMP. GEN. 518; 34 COMP. GEN. 90, AND 37 COMP. GEN. 207.

IT IS THE VIEW OF THE DEPARTMENT OF THE ARMY, AS INDICATED IN LETTER OF NOVEMBER 15, 1960, ADDRESSED TO MR. KURTH, COPY OF WHICH HAS BEEN FURNISHED TO US, THAT THE ACT OF APRIL 3, 1939, AS AMENDED, GRANTS AN ELIGIBLE PERSON DISABILITY RETIREMENT PAY BENEFITS BUT DOES NOT CONFER A RETIRED STATUS UPON HIM. MR. KURTH WAS INFORMED THAT HE WAS NOT ELIGIBLE FOR ADVANCEMENT TO CHIEF WARRANT GRADE UNDER THAT ACT SINCE HE WAS NOT RETIRED FOR DISABILITY BUT WAS ONLY GRANTED RETIREMENT PAY; AND THAT THE FIRST LAW WHICH CONFERRED A RETIRED STATUS UPON NON-REGULAR WARRANT OFFICERS FOR DISABILITY WAS THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949.

IT SEEMS CLEAR THAT THE CONGRESS WAS FULLY AWARE OF, AND INTENDED TO DRAW A DISTINCTION BETWEEN, A RETIREMENT AND A GRANT OF RETIREMENT PAY SINCE BOTH OF THESE MATTERS WERE EXPRESSLY COVERED IN ANOTHER PART OF SECTION 203 OF THE 1948 ACT. SUBSECTION (A) OF THAT SECTION, WHICH AUTHORIZED THE ADVANCEMENT OF REGULAR AND NON-REGULAR COMMISSIONED OFFICERS TO THEIR HIGHEST TEMPORARY GRADE IN THE CIRCUMSTANCES THERE MENTIONED, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED * * *. (ITALICS SUPPLIED.)

THE DIFFERENCE BETWEEN SUCH LANGUAGE AND THAT CONTAINED IN SUBSECTION (C) CANNOT BE IGNORED.

IN OTHER PROVISIONS OF LAW GRANTING ADDITIONAL RETIRED PAY BENEFITS, THE INTENTION TO INCLUDE MEMBERS RECEIVING OR ENTITLED TO RECEIVE RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939, WAS MANIFESTED BY THE CONGRESS THROUGH APPROPRIATE WORDING WHICH LEFT NO ROOM FOR ANY DOUBT. SECTION 1 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, 10 11U.S.C. 985 (B), PROVIDED AS FOLLOWS:

THAT ANY OFFICER OF THE ARMY OF THE UNITED STATES OR OF ANY COMPONENT THEREOF, EXCEPT AN OFFICER OF THE REGULAR ARMY, WHO HERETOFORE OR HEREAFTER HAS BEEN OR MAY BE GRANTED RETIREMENT PAY FOR PHYSICAL DISABILITY DETERMINED OR INCURRED WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE SHALL RECEIVE RETIREMENT PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE. (ITALICS SUPPLIED.)

SEE, ALSO, IN THIS CONNECTION, THE CLEAR AND UNEQUIVOCAL WORDING IN SECTION 411, CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281 (1952 USED.), WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * *. (ITALICS SUPPLIED.)

IN THE CIRCUMSTANCES, AND IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION HOLDING THAT A PERSON SUCH AS MR. KURTH WAS "HERETOFORE OR HEREAFTER RETIRED FOR DISABILITY" WITHIN THE PURVIEW OF SECTION 203 (C) OF THE ACT OF JUNE 29, 1948, WE FIND NO BASIS FOR THE PAYMENT OF HIS CLAIM.

ACCORDINGLY, THE DISALLOWANCE OF MR. KURTH'S CLAIM WAS PROPER AND UPON REVIEW IT IS SUSTAINED.