B-123908, NOV. 14, 1955

B-123908: Nov 14, 1955

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. 200 RETIRED PAY WHICH YOU STATE YOU WERE REQUESTED TO RETURN IN 1950. IT APPEARS THAT YOU WERE RETIRED ON JANUARY 29. THAT YOU WERE PAID RETIRED PAY. THE ADJUTANT GENERAL OF THE ARMY INFORMED YOU THAT YOU SHOULD HAVE BEEN PAID RETIRED PAY AT $251.56 A MONTH FROM JANUARY 30 TO MAY 31. WHICH WAS IN EFFECT THROUGH MAY 31. - "THAT WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY. SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT.

B-123908, NOV. 14, 1955

TO LIEUTENANT COLONEL WILLIAM RAY JACKSON, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1955, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 1, 1955, DISALLOWING YOUR CLAIM FOR REFUND OF APPROXIMATELY $1,200 RETIRED PAY WHICH YOU STATE YOU WERE REQUESTED TO RETURN IN 1950.

IT APPEARS THAT YOU WERE RETIRED ON JANUARY 29, 1942, AS LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, ON ACCOUNT OF DISABILITY, AND THAT YOU WERE PAID RETIRED PAY, ON THE BASIS OF MORE THAN 18 YEARS OF SERVICE, FROM JANUARY 30 TO MAY 31, 1942, AT $284.37 A MONTH, AND ON THE BASIS OF MORE THAN 27 YEARS OF SERVICE, FROM JUNE 1, 1942, TO JUNE 30, 1946, AT $317.19 A MONTH, AND FROM JULY 1, 1946, TO AUGUST 31, 1950, AT $348.91 A MONTH. IT APPEARS, FURTHER, THAT ON AUGUST 22, 1950, THE ADJUTANT GENERAL OF THE ARMY INFORMED YOU THAT YOU SHOULD HAVE BEEN PAID RETIRED PAY AT $251.56 A MONTH FROM JANUARY 30 TO MAY 31, 1942, BASED ON MORE THAN NINE YEARS OF SERVICE AND AT $306.25 A MONTH FROM JUNE 1, 1942, TO JUNE 30, 1946, AND AT $336.88 A MONTH FROM JULY 1, 1946, BASED ON MORE THAN 24 YEARS OF SERVICE.

SECTION 3 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED BY SECTION 1 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, WHICH WAS IN EFFECT THROUGH MAY 31, 1942, PROVIDED---

"THAT WHEN OFFICERS OF THE NATIONAL GUARD OR OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, THOSE SERVING IN GRADES CORRESPONDING TO THOSE OF COLONEL, LIEUTENANT COLONEL, MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT OF THE ARMY SHALL RECEIVE THE PAY OF THE SIXTH, FIFTH, FOURTH, THIRD, SECOND, AND FIRST PERIODS, RESPECTIVELY. SUCH OFFICERS WHENEVER ENTITLED TO FEDERAL PAY, EXCEPT ARMORY DRILL AND ADMINISTRATIVE FUNCTION PAY, SHALL RECEIVE AS LONGEVITY PAY, IN ADDITION TO BASE PAY PROVIDED BUT NOT EXCEEDING THE MAXIMUM PAY PRESCRIBED BY LAW, AN INCREASE THEREOF AT THE PERCENTUM AND TIME RATES UP TO THIRTY YEARS PROVIDED IN THE TENTH PARAGRAPH OF SECTION 1. IN COMPUTING THE INCREASE OF PAY FOR EACH PERIOD OF THREE YEARS' SERVICE, SUCH OFFICERS SHALL BE CREDITED WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE HELD COMMISSIONS AS OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, OR IN THE ORGANIZED MILITIA PRIOR TO JULY 1, 1916, OR IN THE NATIONAL GUARD, OR IN THE NAVAL MILITIA, OR IN THE NATIONAL NAVAL VOLUNTEERS, OR IN THE NAVAL RESERVE FORCE OR MARINE CORPS RESERVE FORCE, WHEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE, WITH FULL TIME FOR ALL PERIODS DURING WHICH THEY HAVE PERFORMED ACTIVE DUTY UNDER RESERVE COMMISSIONS, AND WITH ONE-HALF TIME FOR ALL OTHER PERIODS DURING WHICH THEY HAVE HELD RESERVE COMMISSIONS.'

THE TITLE OF THE SAID ACT OF JUNE 10, 1922, IS AS FOLLOWS:

"AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE.'

THE OFFICIAL NATIONAL GUARD REGISTER FOR THE YEAR 1942, PAGE 1378, SHOWS YOUR SERVICE AS FOLLOWS:

"PVT CPL SGT INF 22 APR 13 TO 31 MAR 16; PVT SGT INF 8 JUNE 21 TO 18 AUG 21--- 2 LT INF 1 APR 16 1 LT 14 JUNE 16 TO 28 JUNE 16; 1 LT INF 12 NOV 16 TO 2 FEB 17; CAPT QMC 19 AUG 21 INF 3 NOV 21 TO 15 NOV 27; (ORC INF CAPT 16 NOV 22 TO 10 APR 27); MAJ INF 27 MAY 29 LT COL 14 OCT 40 TO 29 JAN 42

"NG RES INF CAPT 16 NOV 27 TO 26 MAY 29

"FEDERAL 1 LT INF 29 JUNE 16 TO 11 NOV 16; LT COL INF 3 MAR 41 TO 29 JAN 42"

UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 10, 1922, ONLY COMMISSIONED SERVICE WAS AUTHORIZED TO BE COUNTED FOR THE LONGEVITY INCREASE SPECIFIED. SINCE NO PROVISION WAS MADE FOR COUNTING PRIOR ENLISTED SERVICE, YOUR ENLISTED SERVICE WAS NOT AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY PURPOSES IN COMPUTING YOUR RETIRED PAY FOR THE PERIOD ENDING MAY 31, 1942. IN DECISION DATED MARCH 17, 1941, 20 COMP. GEN. 520, IT WAS HELD, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

"AN OFFICER OF THE NATIONAL GUARD ORDERED TO ACTIVE DUTY PURSUANT TO PUBLIC RESOLUTION NO. 96, AUGUST 27, 1940, AND THUS ENTITLED TO FEDERAL PAY AS PROVIDED IN SECTION 3 OF THE ACT OF JUNE 10, 1922, IS NOT ENTITLED TO COUNT ANY PORTION OF HIS COMMISSIONED SERVICE IN THE NATIONAL GUARD RESERVE, OR INACTIVE NATIONAL GUARD, FOR LONGEVITY PAY PURPOSES, THE NATIONAL GUARD RESERVE NOT BEING INCLUDED IN THE TERM "NATIONAL GUARD" AS USED IN SAID SECTION 3.'

THUS, UNDER THE APPLICABLE STATUTES YOU WERE ENTITLED TO HAVE YOUR RETIRED PAY FOR THE PERIOD FROM JANUARY 30 TO MAY 31, 1942, COMPUTED ON THE BASIS OF THE FOLLOWING SERVICE:

TABLE

PERIOD YRS. MOS. DAYS

4 - 1 - 1916 TO 6 - 28 - 1916 0 2 28

6 - 29 - 1916 TO 11 - 11 - 1916 0 4 13 11 - 12 - 1916 TO 2 - 2 - 1917 0 2 21

8 - 19 - 1921 TO 11 - 15 - 1927 6 2 27

5 - 27 - 1929 TO 3 - 2 - 1941 11 9 6

3 - 3 - 1941 TO 1 - 29 - 1942 0 10 27

TOTAL 19 9 2

IT APPEARS THAT FROM NOVEMBER 16, 1922, TO APRIL 10, 1927, DURING WHICH PERIOD YOU HELD A COMMISSION IN THE NATIONAL GUARD YOU ALSO HELD A COMMISSION IN THE OFFICERS' RESERVE CORPS BUT WERE NOT ON ACTIVE DUTY. THE FACT THAT YOU HELD COMMISSIONS IN BOTH ORGANIZATIONS AT THE SAME TIME DID NOT ENTITLE YOU TO CREDIT FOR MORE THAN THE ACTUAL CALENDAR TIME INVOLVED. ACCORDINGLY, YOUR RETIRED PAY FOR THE PERIOD ENDING MAY 31, 1942, SHOULD HAVE BEEN COMPUTED ON THE BASIS THAT YOU HAD COMPLETED MORE THAN 18 YEARS OF SERVICE FOR PAY PURPOSES.

THE COMPUTATION OF YOUR RETIRED PAY FOR THE PERIOD FROM JUNE 1, 1942, TO AUGUST 31, 1950, WAS GOVERNED BY THE PROVISIONS OF SECTIONS 3 AND 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, AND THE ACT OF JUNE 29, 1946, 60 STAT. 343. UNDER THOSE STATUTORY PROVISIONS YOU WERE ENTITLED TO COUNT FOR LONGEVITY PAY PURPOSES, IN ADDITION TO SERVICE WHICH YOU WERE ALREADY ENTITLED TO COUNT, YOUR ENLISTED SERVICE IN THE NATIONAL GUARD AND YOUR COMMISSIONED SERVICE IN THE NATIONAL GUARD RESERVE. THE SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES FOR THE PERIOD BEGINNING JUNE 1, 1942, IS AS FOLLOWS:

TABLE

PERIOD YRS. MOS. DAYS

4 - 22 - 1913 TO 3 - 31 - 1916 2 11 9

6 - 28 - 1921 TO 8 - 18 - 1921 0 2 11 11 - 16 - 1927 TO 5 - 26 - 1929 1 6 11 TOTAL OF CREDITABLE SERVICE

PRIOR TO JUNE 1, 1942 19 9 2

TOTAL 24 5 3

IT IS APPARENT THAT, FOR THE PURPOSE OF COMPUTING YOUR RETIRED PAY FOR THE PERIOD BEGINNING JUNE 1, 1942, YOU HAD MORE THAN 24 YEARS OF SERVICE BUT DID NOT HAVE 27 YEARS OF SERVICE.

ON THE BASIS OF THE FOREGOING IT WOULD APPEAR THAT YOU HAVE NOT RECEIVED THE FULL AMOUNT DUE YOU FOR THE PERIOD FROM JANUARY 30 TO MAY 31, 1942, AND THAT YOU WERE PROPERLY PAID FOR THE PERIOD BEGINNING JUNE 1, 1942. HOWEVER, THE PRESENT RECORD DOES NOT CONTAIN DEFINITE INFORMATION AS TO PAYMENTS MADE AND AMOUNTS COLLECTED FROM YOU. THOSE ITEMS WILL BE VERIFIED BY THE CLAIMS DIVISION OF OUR OFFICE AND YOU WILL BE FURTHER ADVISED. A SETTLEMENT FOR ANY AMOUNT FOUND PAYABLE WILL ISSUE IN DUE COURSE.