B-124188, OCT. 14, 1955

B-124188: Oct 14, 1955

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JAMES MERRYMAN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29. CONCERNING YOUR RIGHT TO HAVE YOUR RETIRED PAY COMPUTED ON THE PAY AUTHORIZED FOR A FIRST LIEUTENANT WITH OVER 30 YEARS OF SERVICE. THE DEPARTMENT OF THE ARMY REPORTS THAT YOU WERE PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF MARCH 2. 2 MONTHS AND 7 DAYS OF THIS ACTUAL SERVICE WAS CREDITABLE AS DOUBLE TIME GIVING YOU A CREDIT OF 30 YEARS. YOU WERE RECALLED TO ACTIVE DUTY IN THE GRADE OF FIRST LIEUTENANT DURING WORLD WAR I AND SERVED FROM JANUARY 10 TO DECEMBER 2. SHORTLY AFTER YOU WERE RETIRED. WERE PLACED IN THE THIRD PAY GRADE (NOW FIFTH PAY GRADE AND HEREAFTER SO REFERRED TO). YOUR RETIRED PAY THEN WAS COMPUTED ON THE PAY AUTHORIZED FOR AN ENLISTED MAN OF THE FIFTH PAY GRADE.

B-124188, OCT. 14, 1955

TO MR. JAMES MERRYMAN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1955, ADDRESSED TO US THROUGH HONORABLE M. F. MORRELL, HOUSE OF REPRESENTATIVES, REQUESTING RECONSIDERATION OF OUR LETTER OF AUGUST 12, 1955, B-124188, CONCERNING YOUR RIGHT TO HAVE YOUR RETIRED PAY COMPUTED ON THE PAY AUTHORIZED FOR A FIRST LIEUTENANT WITH OVER 30 YEARS OF SERVICE.

IT APPEARS APPROPRIATE AGAIN TO REVIEW THE FACTS IN YOUR CASE. THE DEPARTMENT OF THE ARMY REPORTS THAT YOU WERE PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 10 U.S.C. 947, IN THE GRADE OF SERGEANT, FIRST CLASS, HOSPITAL CORPS, EFFECTIVE APRIL 27, 1916. AT THE DATE OF RETIREMENT YOU APPARENTLY HAD COMPLETED 16 YEARS, 11 MONTHS AND 6 DAYS OF ACTUAL ENLISTED SERVICE. UNDER CERTAIN STATUTORY PROVISIONS CODIFIED IN 10 U.S.C. 956, HOWEVER, 13 YEARS, 2 MONTHS AND 7 DAYS OF THIS ACTUAL SERVICE WAS CREDITABLE AS DOUBLE TIME GIVING YOU A CREDIT OF 30 YEARS, 1 MONTH AND 13 DAYS OF SERVICE FOR RETIREMENT PURPOSES AS AN ENLISTED MAN. YOU WERE RECALLED TO ACTIVE DUTY IN THE GRADE OF FIRST LIEUTENANT DURING WORLD WAR I AND SERVED FROM JANUARY 10 TO DECEMBER 2, 1918. THIS 10-MONTH AND 23-DAY PERIOD OF WORLD WAR I COMMISSIONED SERVICE ADDED TO YOUR PRIOR 16 YEARS, 11 MONTHS, AND 6 DAYS OF ACTUAL ENLISTED SERVICE GAVE YOU A TOTAL OF 17 YEARS, 9 MONTHS AND 29 DAYS OF ACTUAL SERVICE.

SHORTLY AFTER YOU WERE RETIRED, THE ACT OF JUNE 3, 1916, 39 STAT. 166, ESTABLISHING THE MEDICAL DEPARTMENT OF THE ARMY, BECAME EFFECTIVE. UNDER THAT ACT, SERGEANTS, FIRST CLASS, HOSPITAL CORPS, WERE PLACED IN THE THIRD PAY GRADE (NOW FIFTH PAY GRADE AND HEREAFTER SO REFERRED TO), AND THAT DISTRIBUTION ALSO APPLIED TO RETIRED INDIVIDUALS. COMPARE 2 COMP. GEN. 9. PRESUMABLY, THEREFORE, YOUR RETIRED PAY THEN WAS COMPUTED ON THE PAY AUTHORIZED FOR AN ENLISTED MAN OF THE FIFTH PAY GRADE. UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1924, AS AMENDED, 10 U.S.C. 981, YOU, BY VIRTUE OF HAVING SERVED AS A COMMISSIONED OFFICER IN WORLD WAR I, BECAME ENTITLED TO RECEIVE THE RETIRED PAY AUTHORIZED FOR ARMY WARRANT OFFICER. BY THE ACT OF MARCH 3, 1927, 44 STAT. 1356, 10 U.S.C. 604A, YOU WERE PLACED IN THE GRADE OF MASTER SERGEANT (THE TOP ENLISTED GRADE) ON THE RETIRED LIST AND, UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932, 47 STAT. 150, 10 U.S.C. 1028C, YOU WERE ADVANCED ON THE RETIRED LIST TO THE COMMISSIONED OFFICER GRADE OF FIRST LIEUTENANT, WHICH GRADE YOU HAD HELD IN WORLD WAR I.

SINCE THE ACT OF MAY 7, 1932, PROVIDED THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES SHOULD RESULT FROM ITS ENACTMENT, YOUR ADVANCEMENT PURSUANT TO SUCH STATUTORY PROVISIONS DID NOT AFFECT YOUR RETIRED PAY. IN SUCH CIRCUMSTANCES AND AS THE ACT OF MAY 7, 1932, ALSO PROVIDED THAT IT SHOULD NOT ENTITLE ANY OF THE PERSONNEL TO WHOM IT APPLIED, WHILE ON ACTIVE DUTY, TO ANY OTHER RANK THAN THAT IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT, THE COMMISSIONED RANK AUTHORIZED BY THE STATUTE HAS BEEN REGARDED AS PURELY HONORARY.

THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, MADE MANY CHANGES IN THE LAWS RELATING TO THE PAY AND ALLOWANCES OF THE UNIFORMED SERVICES. SECTION 511 OF THAT ACT, 63 STAT. 829 PROVIDES THAT MEMBERS THERETOFORE RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY SHOULD RECEIVE THE HIGHER OF EITHER THE MONTHLY RETIRED PAY WHICH THEY HAD BEEN RECEIVING, OR MONTHLY RETIRED PAY EQUAL TO 2 1/2 PERCENT OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK SATISFACTORILY HELD BY SUCH MEMBERS MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO THEM. SECTION 513, 63 STAT. 830, PROVIDES FOR THE ADVANCEMENT ON THE RETIRED LIST TO THEIR FORMER OFFICER GRADES OF ENLISTED MEN WHO HAD HELD SUCH GRADES IN WORLD WAR I AND FOR RETIRED PAY COMPUTED ON THE BASIC PAY AUTHORIZED FOR THOSE OFFICER GRADES UNDER THE FORMULA FIXED IN SECTION 511. EACH OF THOSE SECTIONS ALSO PROVIDES THAT ENLISTED PERSONS THERETOFORE OR THEREAFTER ADVANCED ON THE RETIRED LIST COULD, WITHIN A SPECIFIED TIME, ELECT TO BE RESTORED TO THEIR FORMER ENLISTED STATUS AND, UPON BEING SO RESTORED, SHOULD THEREAFTER BE DEEMED TO BE ENLISTED PERSONNEL FOR ALL PURPOSES, INCLUDING THE COMPUTATION OF THEIR RETIRED PAY BASED UPON SUCH ENLISTED GRADE OR RATING.

ON SEPTEMBER 30, 1949, YOU WERE A RETIRED ENLISTED MAN WITH THE HONORARY RANK OF FIRST LIEUTENANT, ENTITLED TO THE RETIRED PAY AUTHORIZED FOR A WARRANT OFFICER. UNDER THE PROVISIONS OF SECTIONS 511 AND 513 OF THE CAREER COMPENSATION ACT YOU, ON OCTOBER 1, 1949, BECAME A RETIRED COMMISSIONED OFFICER FOR PURPOSES OF RETIRED PAY AND EFFECTIVE OCTOBER 1, 1949, THE ARMY BEGAN TO PAY TO YOU RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY OF A FIRST LIEUTENANT WITH 17 YEARS, 9 MONTHS AND 29 DAYS OF SERVICE, THE "ACTIVE SERVICE" CREDITABLE TO YOU.

SUBSECTION 202 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, ABOLISHED THEREAFTER, THE CREDIT OF DOUBLE TIME FOR ANY SERVICE. THAT SECTION PROVIDED, HOWEVER, THAT "RETIRED ENLISTED MEN," WHO WERE AUTHORIZED TO COUNT DOUBLE TIME FOR RETIREMENT PURPOSES UNDER PRIOR LAWS, SHOULD BE ENTITLED TO RECEIVE "THE MAXIMUM RETIRED PAY NOW OR HEREAFTER PROVIDED FOR THE GRADE IN WHICH RETIRED.' WHILE YOU WERE RETIRED IN THE GRADE OF SERGEANT, FIRST CLASS, HOSPITAL CORPS, YOU ARE REGARDED UNDER THE TERMS OF THE ACT OF MARCH 3, 1927, AS HAVING BEEN RETIRED IN THE GRADE OF MASTER SERGEANT AND, SINCE THE MAXIMUM RETIRED PAY PROVIDED FOR A MASTER SERGEANT WAS GREATER THAN THE RETIRED PAY PROVIDED FOR A FIRST LIEUTENANT WITH YOUR ACTUAL SERVICE, YOU WERE AFFORDED THE OPPORTUNITY TO ELECT TO BE RESTORED TO YOUR FORMER ENLISTED STATUS. YOU EXERCISED TIMELY THIS RIGHT OF ELECTION, WERE SO RESTORED AND YOUR RETIRED PAY WAS ADJUSTED RETROACTIVELY TO OCTOBER 1, 1949, ON THE BASIS OF THE MAXIMUM RETIRED PAY PROVIDED FOR A MASTER SERGEANT.

HAVING BEEN RESTORED TO YOUR FORMER ENLISTED STATUS, YOU, UNDER THE PRECISE LANGUAGE OF THE STATUTE, ARE TO BE "DEEMED" A RETIRED ENLISTED MAN "FOR ALL PURPOSES" AND ONLY LEGISLATION BY CONGRESS CAN CHANGE THAT. CONSEQUENTLY, THE AMENDMENT MADE TO SUBSECTION 202/D) OF THE CAREER COMPENSATION ACT OF 1949, BY PARAGRAPH "/15)" OF SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 22, WHICH ADDED THE WORDS,"INCLUDING RETIRED ENLISTED MEN ADVANCED TO COMMISSIONED OFFICER RANK ON THE RETIRED LIST BY VIRTUE OF THE ACT OF MAY 7, 1932, (PUBLIC LAW 123, SEVENTY-SECOND CONGRESS)," DOES NOT APPLY TO YOU, REGARDLESS OF ITS PURPOSE. THAT IS, YOUR RESTORATION TO AN ENLISTED STATUS WITH THE EXPRESS STATUTORY DECLARATION THAT YOU ARE TO BE ,DEEMED" TO BE AN ENLISTED MAN "FOR ALL PURPOSES" MUST BE REGARDED AS HAVING, IN EFFECT, REMOVED YOU FROM THE CATEGORY OF INDIVIDUALS ADVANCED UNDER THE ACT OF MAY 7, 1932, AND WHO, UNDER THE CAREER COMPENSATION ACT, ARE REGARDED AS RETIRED COMMISSIONED OFFICERS FOR RETIRED PAY PURPOSES. THE REMARKS IN OUR LETTER OF AUGUST 12, 1955, AS TO THE PURPOSE OF THE 1955 AMENDMENT TO SUBSECTION 202 (D) WERE NOT INTENDED TO IMPLY THAT THE AMENDMENT WAS APPLICABLE IN YOUR SITUATION.

WE PERCEIVE NO BASIS FOR ANY CHANGE IN THE CONCLUSION REACHED IN OUR LETTER OF AUGUST 12, 1955.