B-123880, SEPTEMBER 3, 1957, 37 COMP. GEN. 153

B-123880, SEPTEMBER 3, 1957, 37 COMP. GEN. 153

MILITARY PERSONNEL - RETIRED PAY - SERVICE CREDITS - COURT DECISION - FINALITY A DECISION BY THE COURT OF CLAIMS IN WHICH IT WAS HELD THAT AN OFFICER WAS ENTITLED TO DOUBLE-TIME CREDIT FOR FOREIGN ENLISTED SERVICE PRIOR TO 1912 FOR RETIREMENT PURPOSES AND TO RETIREMENT PAY AS A LIEUTENANT COLONEL WITH OVER 22 YEARS' SERVICE, NOTWITHSTANDING THAT THE RECORD INDICATED THAT THE OFFICER ACTUALLY COMPLETED OVER 30 YEARS OF SERVICE, HAS BECOME FINAL IN ALL RESPECTS SO AS TO PRECLUDE RECOMPUTATION OF RETIRED PAY ON ANY OTHER BASIS.

TO N. P. HANNA, DEPARTMENT OF THE ARMY, SEPTEMBER 3, 1957:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1957, AND ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON AN ATTACHED VOUCHER IN FAVOR OF LIEUTENANT COLONEL ORLO C. WHITAKER, 10 169 675, RETIRED, FOR $45.45, COVERING ADDITIONAL RETIRED PAY AT THE RATE OF $7.66 PER MONTH FOR THE PERIOD OCTOBER 3, 1956, TO MARCH 31, 1957.

ON APRIL 22, 1955, COLONEL WHITAKER FILED A PETITION IN THE COURT OF CLAIMS SEEKING RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS AMENDED, NOW 10 U.S.C. 1331-1337, HIS APPLICATION FOR SUCH RETIRED PAY HAVING BEEN DENIED BY THE DEPARTMENT OF THE ARMY. HE ALLEGED IN THE PETITION THAT UNDER CERTAIN STATUTORY PROVISIONS THEN CODIFIED UNDER 10 U.S.C. 956, HE WAS ENTITLED TO DOUBLE- TIME CREDIT FOR HIS ENLISTED SERVICE IN CUBA AND THE PHILIPPINE ISLANDS PRIOR TO 1912 IN COMPUTING HIS LENGTH OF SERVICE FOR RETIREMENT PURPOSES. HE CONTENDED THAT THIS DOUBLE-TIME SERVICE CREDIT PLUS CERTAIN OTHER CREDITABLE SERVICE, ENTITLED HIM TO RETIREMENT FOR LENGTH OF SERVICE IN EXCESS OF 20 YEARS, NAMELY, APPROXIMATELY 23 YEARS AND 8 MONTHS. PRAYED JUDGMENT FOR RETIREMENT PAY AS A LIEUTENANT COLONEL WITH OVER 22 YEARS' SERVICE FROM JUNE 29, 1948.

IN AN OPINION OF MARCH 6, 1956, WHITAKER V. UNITED STATES, 134 C.1CLS. 245, AS AMENDED BY ORDER DATED APRIL 2, 1956, THE COURT HELD THAT COLONEL WHITAKER WAS ENTITLED TO DOUBLE-TIME CREDIT FOR HIS ENLISTED SERVICE IN CUBA AND THE PHILIPPINES PRIOR TO 1912 FOR RETIREMENT PURPOSES, AND THAT HE WAS "ENTITLED TO RETIREMENT PAY AS A LIEUTENANT COLONEL WITH OVER 22 YEARS' SERVICE, FROM APRIL 22, 1949, TO THE DATE OF JUDGMENT, SAID DATE BEING SIX YEARS PRIOR TO THE FILING OF PLAINTIFF'S PETITION.'

ON JULY 17, 1956, WE FURNISHED THE COURT A STATEMENT SHOWING THE AMOUNT DUE COLONEL WHITAKER AS RETIRED PAY IN ACCORDANCE WITH ITS OPINION. BECAUSE THE OPINION WAS NOT CLEAR AS TO WHETHER HE WAS ENTITLED TO THE DOUBLE-TIME CREDIT FOR PURPOSES OF COMPUTING RETIRED PAY AS WELL AS FOR PURPOSES OF QUALIFYING FOR RETIREMENT, WE SUBMITTED TWO COMPUTATIONS OF THE AMOUNT DUE, ONE BASED UPON ALLOWING DOUBLE-TIME CREDIT FOR PAY COMPUTATION PURPOSES AND THE OTHER EXCLUDING DOUBLE-TIME CREDIT FOR SUCH PURPOSES. BOTH COMPUTATIONS, HOWEVER, WERE PREDICATED ON THE BASE AND LONGEVITY PAY (BASIC PAY) AUTHORIZED FOR A LIEUTENANT COLONEL WITH OVER 22 YEARS OF SERVICE, AS PROVIDED IN THE OPINION. BY ORDER OF OCTOBER 2, 1956, THE COURT SAID THAT OUR COMPUTATIONS HAD BEEN ACCEPTED AS CORRECT BY THE PARTIES AND HELD THAT DOUBLE-TIME WAS CREDITABLE FOR QUALIFICATION PURPOSES ONLY. JUDGMENT WAS ENTERED ON THAT BASIS COVERING RETIRED PAY FOR THE PERIOD APRIL 22, 1949, TO OCTOBER 2, 1956.

UNDER THE COURT'S DECISION, COLONEL WHITAKER WAS PLACED ON THE RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL, EFFECTIVE NOVEMBER 30, 1951, UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337, AND DURING THE PERIOD COVERED BY THE SUBMITTED VOUCHER HE WAS PAID RETIRED PAY OF $157.02 PER MONTH, SUCH PAY BEING COMPUTED ON THE BASIC PAY AUTHORIZED FOR A LIEUTENANT COLONEL WITH OVER 22 YEARS OF SERVICE IN ACCORDANCE WITH THE COURT'S DECISION. THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED, HOWEVER, THAT HE ACTUALLY HAS COMPLETED OVER 32 YEARS' SERVICE FOR BASIC PAY PURPOSES, A FACT ALSO INDICATED BY COLONEL WHITAKER'S PETITION, AND IF HIS RETIRED PAY DURING SUCH PERIOD HAD BEEN COMPUTED ON THE BASIC PAY AUTHORIZED FOR A LIEUTENANT COLONEL WITH OVER 30 YEARS' SERVICE, HE WOULD HAVE RECEIVED RETIRED PAY OF $164.68 PER MONTH, OR $7.66 MONTHLY MORE THAN HE WAS PAID. THE VOUCHER PROPOSES PAYMENT TO COLONEL WHITAKER OF THIS ADDITIONAL AMOUNT.

IN LETTER OF APRIL 6, 1956, WE ADVISED THE DEPARTMENT OF JUSTICE THAT THE COURT'S OPINION OF MARCH 6, 1956, WAS AMBIGUOUS IN SEVERAL RESPECTS, POINTING OUT, AMONG OTHER THINGS, THAT SINCE, UNDER THE LAW, RETIRED PAY IS COMPUTED ON THE BASIC PAY WHICH THE RETIRED PERSON WOULD RECEIVE IF SERVING ON ACTIVE DUTY, WE DID NOT UNDERSTAND HOW THE COURT COULD CONCLUDE THAT COLONEL WHITAKER WAS ENTITLED TO THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER 22 YEARS OF SERVICE. WE ASKED THAT THE COURT BE REQUESTED TO RECONSIDER ITS OPINION FOR THE PURPOSE OF CLARIFICATION. THE OPINION, HOWEVER, WAS NOT RECONSIDERED, NO OBJECTION BASED UPON THIS POINT WAS MADE TO THE COMPUTATION OF THE AMOUNT DUE AND THE DECISION NOW IS FINAL. IN SUCH CIRCUMSTANCES THE DECISION MUST BE REGARDED AS GOVERNING, IN ALL RESPECTS, COLONEL WHITAKER'S RIGHT TO RETIRED PAY. COMPARE 5 COMP. GEN. 334; 36 COMP. GEN. 501.

SINCE DURING THE PERIOD INVOLVED COLONEL WHITAKER WAS PAID ON THE BASIS WHICH THE COURT'S DECISION ESTABLISHED FOR HIM, NOTHING MORE IS DUE HIM FOR SUCH PERIOD. PAYMENT ON THE VOUCHER, WHICH WE ARE RETAINING, IS NOT AUTHORIZED.