B-125845, NOV. 28, 1955

B-125845: Nov 28, 1955

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HE STATES THAT IN VIEW OF YOUR "ELECTION" NOW WITH THE VETERANS ADMINISTRATION (THERE WAS ENCLOSED WITH HIS LETTER WHAT PURPORTS TO BE A COPY OF VA FORM 8-651 WAIVING RETIREMENT PAY TO SECURE COMPENSATION FROM THE VETERANS ADMINISTRATION). YOU ARE NOW CLAIMING THE DIFFERENCE BETWEEN THE COMPENSATION AND THE RETIRED PAY RECEIVED BY YOU FOR CERTAIN PERIODS BETWEEN OCTOBER 12. DETERMINED THAT YOU WERE ELIGIBLE FOR BENEFITS PROVIDED IN SECTION 5 OF THE ACT OF APRIL 3. THAT YOU WERE ENTITLED TO RETIREMENT PAY AS A FIRST LIEUTENANT. THE RECORD ALSO SHOWS THAT YOU WERE ON EXTENDED ACTIVE DUTY FROM NOVEMBER 21. SETTLEMENT OF THE SAME DATE YOU WERE ALLOWED RETROACTIVE RETIRED PAY FROM JULY 1. THERE WAS WITHHELD $3.

B-125845, NOV. 28, 1955

TO MR. NILE D. CROWDER:

THERE HAS BEEN CONSIDERED A LETTER DATED OCTOBER 6, 1955, WRITTEN IN YOUR BEHALF BY MR. LOYD A. PRICE, NATIONAL SERVICE OFFICER, CONCERNING ADDITIONAL RETROACTIVE RETIRED PAY BELIEVED TO BE DUE YOU AS A LIEUTENANT, AUS, RETIRED.

IN HIS LETTER, MR. PRICE STATES THAT "THE ABOVE NAMED RETIRED OFFICER HAS ASKED THIS OFFICE TO FILE A SUPPLEMENTAL CLAIM FOR ADDITIONAL RETROACTIVE RETIRED PAY WITH YOUR OFFICE.' HE ALSO REFERS TO RECENT SETTLEMENTS OF OUR OFFICE MADE IN YOUR FAVOR FOR RETROACTIVE RETIRED PAY, AND HE STATES THAT IN VIEW OF YOUR "ELECTION" NOW WITH THE VETERANS ADMINISTRATION (THERE WAS ENCLOSED WITH HIS LETTER WHAT PURPORTS TO BE A COPY OF VA FORM 8-651 WAIVING RETIREMENT PAY TO SECURE COMPENSATION FROM THE VETERANS ADMINISTRATION), YOU ARE NOW CLAIMING THE DIFFERENCE BETWEEN THE COMPENSATION AND THE RETIRED PAY RECEIVED BY YOU FOR CERTAIN PERIODS BETWEEN OCTOBER 12, 1953, AND SEPTEMBER 3, 1954.

THE RECORD SHOWS THAT AN ARMY DISABILITY REVIEW BOARD WHICH CONVENED ON JULY 20, 1955, UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, REVERSED CERTAIN FINDINGS OF AN ARMY RETIRING BOARD OF MAY 18, 1944, AND DETERMINED THAT YOU WERE ELIGIBLE FOR BENEFITS PROVIDED IN SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, FOR THE REASON THAT YOU BECAME PERMANENTLY INCAPACITATED FOR FURTHER ACTIVE MILITARY SERVICE ON JUNE 24, 1944, AS A RESULT OF A DISABILITY CONTRACTED IN LINE OF DUTY WHILE ON ACTIVE DUTY. THE RECORD FURTHER SHOWS THAT ON SEPTEMBER 14, 1955, THE ADJUTANT GENERAL'S OFFICE, BY ORDER OF THE SECRETARY OF THE ARMY, ADVISED THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, THAT YOU WERE ENTITLED TO RETIREMENT PAY AS A FIRST LIEUTENANT, EFFECTIVE AUGUST 1, 1955, IN THE AMOUNT OF $173.63 PER MONTH. THE RECORD ALSO SHOWS THAT YOU WERE ON EXTENDED ACTIVE DUTY FROM NOVEMBER 21, 1942, TO JUNE 30, 1944.

ON THE BASIS OF THE COURT OF CLAIMS DECISION IN THE HAMRICK CASE, 120 C.CLS. 17, OUR OFFICE, BY SETTLEMENT DATED SEPTEMBER 22, 1955, ALLOWED YOU RETROACTIVE RETIRED PAY FROM JULY 1, 1944, TO JUNE 30, 1953, IN THE GROSS AMOUNT OF $17,098.20, BUT WITHHELD THE SUM OF $88.20 AS DISABILITY COMPENSATION PAID TO YOU BY THE VETERANS ADMINISTRATION FROM APRIL 7 TO JUNE 30, 1953, AND $200 MUSTERING-OUT PAY PREVIOUSLY RECEIVED BY YOU. SETTLEMENT OF THE SAME DATE YOU WERE ALLOWED RETROACTIVE RETIRED PAY FROM JULY 1, 1953, TO JULY 31, 1955, IN THE GROSS AMOUNT OF $4,134.32, AND THERE WAS WITHHELD $3,190.43 AS DISABILITY COMPENSATION PAID TO YOU BY THE VETERANS ADMINISTRATION FROM JULY 1, 1953, TO AUGUST 31, 1955. THE DISABILITY COMPENSATION WAS WITHHELD BECAUSE OF THE RESTRICTIONS IMPOSED BY SECTION 15 OF THE ACT OF JULY 13, 1943, 57 STAT. 559, WHICH PROVIDES, IN EFFECT, THAT DISABILITY RETIREMENT PAY AND DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION MAY NOT BE PAID FOR THE SAME PERIOD.

SINCE THE ABOVE SETTLEMENTS CLEARLY SHOW THAT YOU HAVE BEEN PAID ALL RETIRED PAY PROPERLY DUE YOU, THERE IS NO "ADDITIONAL RETROACTIVE RETIRED PAY" REMAINING DUE YOU.

YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY AND THE GREATER DISABILITY COMPENSATION FOR CERTAIN PERIODS BETWEEN OCTOBER 12, 1953, AND SEPTEMBER 3, 1954, BASED ON YOUR "WAIVER" OF RETIREMENT PAY ALREADY ALLOWED YOU, WOULD APPEAR TO BE FOR THE CONSIDERATION OF THE VETERANS ADMINISTRATION. SEE SECTION 11 OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1197. ACCORDINGLY, SINCE YOU HAVE BEEN ALLOWED ALL THE RETROACTIVE RETIRED PAY DUE YOU NO FURTHER SETTLEMENT BY OUR OFFICE WOULD BE PROPER AT THIS TIME.