B-126243, FEB. 27, 1956

B-126243: Feb 27, 1956

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IT APPEARS THAT LIEUTENANT SHERRY WAS RETIRED JUNE 5. MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RECEIVE RETIRED PAY * * * UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1. SHALL BE ENTITLED TO AN INCREASE OF 6 PERCENTUM OF THE RETIRED PAY * * * TO WHICH THEY ARE NOW ENTITLED.'. LIEUTENANT SHERRY WAS ENTITLED TO RETIRED PAY AT THE MONTHLY RATE OF $140.40. IT APPEARS THAT THIS IS THE RATE AT WHICH HE HAS BEEN PAID SINCE APRIL 1. HE ADMITTEDLY DOES NOT HAVE THE REQUIRED THREE YEARS. IT WAS HELD THAT CITIZENS. - THAT IS. - WHO WERE ACCEPTED AND ENLISTED FOR THREE MONTHS IN THE MILITARY TRAINING CAMPS MAINTAINED UNDER REGULATIONS PRESCRIBED PURSUANT TO SECTION 54 OF THE NATIONAL DEFENSE ACT APPROVED JUNE 3.

B-126243, FEB. 27, 1956

TO MR. H. R. OWSLEY, FINANCE OFFICER, VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION:

YOUR LETTERS OF NOVEMBER 7, 1955, YOUR REFERENCE 3072-4ADA, AND JANUARY 13, 1956, YOUR REFERENCE 3072-4ADA, REQUEST A DECISION AS TO THE RATE OF RETIRED PAY AUTHORIZED TO BE PAID TO CAMERON BANNING SHERRY, C 528 920.

IT APPEARS THAT LIEUTENANT SHERRY WAS RETIRED JUNE 5, 1928, UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 735. SECTION 6 OF THE ACT OF MARCH 31, 1955, 69 STAT. 23, EFFECTIVE APRIL 1, 1955, PROVIDES, IN PERTINENT PART:

"SEC. 6. MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RECEIVE RETIRED PAY * * * UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SHALL BE ENTITLED TO AN INCREASE OF 6 PERCENTUM OF THE RETIRED PAY * * * TO WHICH THEY ARE NOW ENTITLED.'

ON MARCH 31, 1955, LIEUTENANT SHERRY WAS ENTITLED TO RETIRED PAY AT THE MONTHLY RATE OF $140.40. SEE SECTION 2 (B) OF THE ACT OF MAY 19, 1952, 66 STAT. 80. THUS, ON APRIL 1, 1955, HE BECAME ENTITLED TO AN INCREASE OF SIX PERCENTUM ON $140.40 A MONTH, OR $148.82 MONTHLY. IT APPEARS THAT THIS IS THE RATE AT WHICH HE HAS BEEN PAID SINCE APRIL 1, 1955.

LIEUTENANT SHERRY CLAIMS AS INCREASE IN HIS RETIRED PAY ON THE BASIS THAT HE HAS HAD MORE THAN THREE YEARS' SERVICE FOR LONGEVITY PAY PURPOSES. INCLUDES IN THAT THREE YEARS 28 DAYS DURING WHICH HE ATTENDED A STUDENT OFFICERS' TRAINING CAMP AT THE PRESIDIO OF SAN FRANCISO, CALIFORNIA, BETWEEN MAY 15, 1917, AND JUNE 12, 1917. IF THAT PERIOD CANNOT BE COUNTED FOR LONGEVITY PAY PURPOSES, HE ADMITTEDLY DOES NOT HAVE THE REQUIRED THREE YEARS.

IN 24 COMP. DEC. 612, IT WAS HELD THAT CITIZENS--- THAT IS, CIVILIANS--- WHO WERE ACCEPTED AND ENLISTED FOR THREE MONTHS IN THE MILITARY TRAINING CAMPS MAINTAINED UNDER REGULATIONS PRESCRIBED PURSUANT TO SECTION 54 OF THE NATIONAL DEFENSE ACT APPROVED JUNE 3, 1916, 39 STAT. 194, WERE NOT SOLDIERS. WE HAVE NOT CONSIDERED ATTENDANCE AT SUCH CAMPS "ENLISTED SERVICE" WITHIN THE ACCEPTED MEANING OF THAT TERM NOR IS SUCH SERVICE OTHERWISE CREDITABLE FOR LONGEVITY PAY PURPOSES. SEE DIGEST OF OPINIONS, JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1930, PP. 276 AND 903. THE CITATIONS GIVEN BY LIEUTENANT SHERRY IN THE NEXT TO THE LAST PARAGRAPH OF HIS LETTER OF SEPTEMBER 7, 1955, HAVE REFERENCE TO BENEFITS UNDER VETERANS' LAWS AND HENCE, THE PROVISIONS REFERRED TO ARE NOT CONTROLLING IN THE COMPUTATION OF LONGEVITY PAY.

LIEUTENANT SHERRY REFERS TO A LETTER TO HIM DATED DECEMBER 28, 1955, FROM THE OFFICE OF ADMINISTRATIVE SERVICES, GENERAL ACCOUNTING OFFICE, WHICH GIVES A STATEMENT OF HIS U.S. ARMY PAY ACCOUNT RECORD FOR THE PERIOD FROM MAY 15, 1917, TO AUGUST 14, 1917, AND FROM DECEMBER 7, 1917, TO MAY 12, 1918. CONTRARY TO LIEUTENANT SHERRY'S CONTENTION, THAT LETTER DOES NOT DETERMINE HIS STATUS DURING THE PERIOD FROM MAY 15, 1917, TO JUNE 12, 1917, WHILE HE WAS ATTENDING THE OFFICERS' TRAINING CAMP AT THE PRESIDIO OF SAN FRANCISCO, CALIFORNIA. THAT LETTER DOES NOT INCLUDE A DETERMINATION THAT SUCH ATTENDANCE WAS "SERVICE; " IT MERELY CONTAINS INFORMATION AS TO WHAT IS SHOWN BY THE PAY RECORDS REGARDING HIS PAY FOR THAT PERIOD.

LIEUTENANT SHERRY IS NOT ENTITLED TO COUNT FOR LONGEVITY PURPOSES THE TIME HE WAS IN ATTENDANCE AT THE OFFICERS' TRAINING CAMP, AND SINCE HIS OTHER SERVICE IS NOT SUFFICIENT TO ENTITLE HIM TO AN INCREASE IN PAY, YOU ARE NOT AUTHORIZED TO PAY HIM IN EXCESS OF HIS CURRENT $148.82 MONTHLY RETIRED PAY. THE COPIES OF CORRESPONDENCE FORWARDED BY YOU WILL BE RETAINED HERE.