B-128262, AUG. 28, 1956

B-128262: Aug 28, 1956

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UNITED STATES ARMY: FURTHER REFERENCE IS MADE TO A LETTER OF MAY 28. WERE HONORABLY DISCHARGED FROM THAT SERVICE ON AUGUST 21 1921. THAT AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES. AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE. IT WAS INDICATED IN THE SETTLEMENT OF JANUARY 30. THAT YOU WERE ENTITLED TO RETIRED PAY INCIDENT TO YOUR RETIREMENT UNDER THE CITED STATUTORY PROVISIONS COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF YOUR ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY AS OF THE DATE OF RETIREMENT MULTIPLIED BY THE NUMBER OF CREDITABLE YEARS OF SERVICE.

B-128262, AUG. 28, 1956

TO COLONEL HARRY MEYER, UNITED STATES ARMY:

FURTHER REFERENCE IS MADE TO A LETTER OF MAY 28, 1956, FROM SYDNEY FISCHGRUND, ATTORNEY, REQUESTING, ON YOUR BEHALF, A REVIEW OF OUR SETTLEMENT OF JANUARY 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1949, INCIDENT TO YOUR RETIREMENT AS A COLONEL IN THE U.S. ARMY, EFFECTIVE DECEMBER 31, 1948.

THE RECORDS SHOW THAT YOU SERVED ON ACTIVE DUTY AS APPRENTICE SEAMAN, U.S. NAVAL RESERVE FORCE, FROM OCTOBER 25, 1918, TO DECEMBER 21, 1918, AND WERE HONORABLY DISCHARGED FROM THAT SERVICE ON AUGUST 21 1921. YOU SERVED ON ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE REGULAR ARMY FROM AUGUST 22, 1921, TO DECEMBER 31, 1948.

PARAGRAPH 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, 10 U.S.C. 971B, PROVIDES, WITH EXCEPTIONS NOT HERE MATERIAL, THAT AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY WHO SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, MAY IN THE DISCRETION OF THE SECRETARY OF THE ARMY, BE RETIRED UPON HIS OWN APPLICATION WITH ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY OF THE RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE CREDITED FOR LONGEVITY PAY PURPOSES AND NOT TO EXCEED A TOTAL OF 75 PERCENTUM OF SUCH ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY. THE ACT ALSO PROVIDES THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75 PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT. IT WAS INDICATED IN THE SETTLEMENT OF JANUARY 30, 1956, THAT YOU WERE ENTITLED TO RETIRED PAY INCIDENT TO YOUR RETIREMENT UNDER THE CITED STATUTORY PROVISIONS COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF YOUR ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY AS OF THE DATE OF RETIREMENT MULTIPLIED BY THE NUMBER OF CREDITABLE YEARS OF SERVICE. HOWEVER, BY VIRTUE OF YOUR NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, YOU WERE ENTITLED UPON YOUR RETIREMENT TO ANNUAL PAY EQUAL TO 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH THEN ENTITLED. THE RECORDS SHOW THAT THE RETIRED PAY RECEIVED BY YOU DURING THE PERIOD FROM JANUARY 1 TO SEPTEMBER 30, 1949, WAS COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE DUTY PAY OF $550 PER MONTH TO WHICH YOU WERE ENTITLED AT THE TIME OF YOUR RETIREMENT AS A COLONEL WITH MORE THAN 30 YEARS OF CREDITABLE SERVICE FOR PAY PURPOSES, OR $412.50 PER MONTH.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, PROVIDES THAT ON AND AFTER OCTOBER 1, 1949, MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY EITHER (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT, OR (B) MONTH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, ORRATING SATISFACTORILY HELD AND WHICH THE MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IS SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM. INASMUCH AS METHOD (A) PROVIDES FOR A CONTINUATION OF RETIRED PAY ON THE BASIS AND AT THE RATE IN EFFECT PRIOR TO OCTOBER 1, 1949, IT IS APPARENT THAT AN ACTUAL LOSS OR LESSENING OF PAY COULD NOT RESULT IN ANY CASE FROM THE APPLICATION OF THE PROVISIONS OF SECTION 511 OF THE ACT.

SINCE METHOD (B) OF SECTION 511 PROVIDED A GREATER RETIRED PAY IN YOUR CASE, YOU WERE PAID AFTER OCTOBER 1, 1949, UNDER THAT METHOD ON THE BASIS OF 28 YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM (70 PERCENT) OF THE PAY OF A COLONEL WITH OVER THIRTY YEARS' SERVICE. IT APPEARS TO BE YOUR CONTENTION IN THE MATTER THAT THE PAY RATES CONTAINED IN THE 1949 ACT, WHICH ARE APPLICABLE WHEN METHOD (B) IS USED IN THE COMPUTATION OF RETIRED PAY, SHOULD BE THE BASIS FOR THE COMPUTATION OF YOUR PAY ON AND AFTER OCTOBER 1, 1949, BUT THAT THE USE OF THE 75 PERCENT FACTOR PROVIDED BY SECTION 5 OF THE CITED ACT OF JULY 31, 1935, AS AMENDED, RATHER THAN THE 70 PERCENT FACTOR ACTUALLY USED, IS PROPER. IT HAS BEEN HELD, HOWEVER, THAT THE SPECIFIC FORMULA PROVIDED IN METHOD (B) OF SECTION 511 OF THE 1949 ACT IS FOR EXCLUSIVE APPLICATION, AND THEREFORE A MEMBER MAY NOT INVOKE THE PROVISIONS OF SECTION 511 TO USE THE MONTHLY PAY RATE OF THE 1949 ACT AND THEN LOOK TO SOME OTHER PROVISION OF LAW IN ORDER TO RECEIVE A GREATER RETIRED PAY THAN THAT TO WHICH HE WOULD BE ENTITLED UNDER THE SAID SECTION 511. 30 COMP. GEN. 350.

SINCE YOUR RETIRED PAY APPEARS TO HAVE BEEN PROPERLY COMPUTED UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, NO AUTHORITY EXISTS FOR THE ALLOWANCE OF YOUR CLAIM.