B-121780, APR 29, 1955

B-121780: Apr 29, 1955

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. THE CLAIMANT WAS RETIRED FOR PHYSICAL DISABILITY AT HIS HOME. HE WAS ORDERED TO BE HONORABLY DISCHARGED FROM HIS ENLISTED GRADE OF MASTER SERGEANT ON MAY 31. THE CLAIMANT WAS SERVING ON ACTIVE DUTY AS A MASTER SERGEANT. HE WAS ENTITLED UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT. TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF A CAPTAIN. HE WAS REQUIRED TO BE RETIRED IN THE RANK UPON WHICH HIS DISABILITY RETIREMENT PAY WAS TO BE BASED. AS FOLLOWS: "A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK. OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK.

B-121780, APR 29, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL WILSON HOOVER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF CAPTAIN ALBERT R. PREVELE, AUS, RETIRED. THE VOUCHER COVERS AN ALLOWANCE FOR TRAVEL PERFORMED BY HIS DEPENDENT WIFE FROM HIS LAST PERMANENT DUTY STATION, FORT KNOX, KENTUCKY, TO FAIRFIELD, CALIFORNIA, HIS SELECTED HOME, BY WAY OF JUNCTION CITY, KANSAS, BETWEEN MAY 8 AND JUNE 20, 1953, LESS $43.38 PAID HIM ON VOUCHER NO. 857425, JUNE 1954 ACCOUNTS OF LIEUTENANT COLONEL A. R. KOZOL, COMPUTED ON THE DISTANCE FROM FORT KNOX, KENTUCKY, TO JUNCTION CITY, HIS HOME OF RECORD.

PURSUANT TO PARAGRAPH 102, SPECIAL ORDERS NO. 84, DEPARTMENT OF THE ARMY, DATED MAY 1, 1953, THE CLAIMANT WAS RETIRED FOR PHYSICAL DISABILITY AT HIS HOME, JUNCTION CITY, KANSAS, IN THE GRADE OF CAPTAIN, EFFECTIVE MAY 31, 1953, UNDER AUTHORITY CONTAINED IN SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 AND 823. HE WAS ORDERED TO BE HONORABLY DISCHARGED FROM HIS ENLISTED GRADE OF MASTER SERGEANT ON MAY 31, 1953, FOR THE CONVENIENCE OF THE GOVERNMENT. YOU ASK THAT THE MATTER BE CLARIFIED SINCE REIMBURSEMENT AS CLAIMED APPARENTLY WOULD BE AUTHORIZED UNDER OUR DECISION DATED FEBRUARY 1, 1954, B-115626, BUT NOT AUTHORIZED UNDER DECISIONS DATED SEPTEMBER 21, 1953, AND MARCH 10, 1954, B-116568, AND DECISION C-33 C.G., 386, DATED MARCH 19, 1954, B-117430.

THE CLAIMANT WAS SERVING ON ACTIVE DUTY AS A MASTER SERGEANT, REGULAR ARMY, WHEN ORDERED TO HIS HOME OF RECORD TO AWAIT RETIREMENT. UPON RETIREMENT, HOWEVER, HE WAS ENTITLED UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT, BY REASON OF PRIOR SERVICE AS A RESERVE CAPTAIN, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF A CAPTAIN. ALSO, HE WAS REQUIRED TO BE RETIRED IN THE RANK UPON WHICH HIS DISABILITY RETIREMENT PAY WAS TO BE BASED, AS PROVIDED BY SECTION 409 OF THAT ACT, AS FOLLOWS:

"A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, OR RATING AS MAY BE AUTHORIZED BY LAW AT TIME OF RETIREMENT."

SINCE THE CLAIMANT WAS ACTUALLY SERVING AS A MASTER SERGEANT, REGULAR ARMY, AT THE TIME OF RETIREMENT ON MAY 31, 1953, THE TRAVEL AND TRANSPORTATION ALLOWANCES TO WHICH HE BECAME ENTITLED INCIDENT TO HIS RETIREMENT ARE THOSE OF A RETIRED MASTER SERGEANT, REGULAR ARMY, NOTWITHSTANDING THAT HE WAS ENTITLED, UPON RETIREMENT, TO THE RANK OF CAPTAIN AND TO RETIREMENT PAY COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF THAT RANK.

IN THE DECISION OF SEPTEMBER 21, 1953, B-116568, WHICH WAS RECONSIDERED AT THE REQUEST OF THE SECRETARY OF DEFENSE AND AFFIRMED MARCH 10, 1954, 33 COMP. GEN. 386, IT WAS HELD THAT TRAVEL AND TRANSPORTATION ALLOWANCES OF RESERVISTS RELEASED FROM ACTIVE DUTY, WHETHER UPON RETIREMENT OR OTHERWISE, ARE LIMITED TO TRAVEL NOT EXCEEDING THE COST TO THE HOME OF RECORD. THAT RULE WAS APPLIED IN THE DECISION OF MARCH 19, 1954, B- 117430. THOSE DECISIONS CONCERNED RESERVISTS WHO WERE SERVING AS RESERVISTS AT THE TIME OF RETIREMENT.

SINCE THE CLAIMANT WAS SERVING AS A MASTER SERGEANT, REGULAR ARMY, ON THE DATE OF HIS RETIREMENT, MAY 31, 1953, HE BECAME ENTITLED TO AN ALLOWANCE FOR TRAVEL OF HIS DEPENDENT FROM HIS LAST DUTY STATION, FORT KNOX, KENTUCKY, TO THE PLACE SELECTED AS HIS HOME ON RETIREMENT, FAIRFIELD, CALIFORNIA, AND YOU ARE AUTHORIZED TO MAKE PAYMENT TO HIM ON THAT BASIS. THE VOUCHER SUBMITTED BY YOU IS RETURNED.