B-128845, NOV. 29, 1956

B-128845: Nov 29, 1956

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ZOE A STRAWN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19. HE WAS ALSO NOTIFIED THAT HIS NAME WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON AUGUST 31. IT WAS HELD IN DECISION DATED NOVEMBER 23. PROVIDED THAT HIS APPLICATION WAS TIMELY FILED. ALL OTHER CASES WHERE THE APPLICATION IS OR HAS BEEN PROPERLY APPROVED. RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION THEREFOR IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MEETS THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THEREBY BECOMES ELIGIBLE FOR SUCH RETIRED PAY. WHICHEVER IS LATER.'.

B-128845, NOV. 29, 1956

TO MRS. ZOE A STRAWN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1956, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JULY 2, 1956, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY BELIEVED TO BE DUE THE ESTATE OF YOUR LATE HUSBAND, LIEUTENANT COLONEL FLOYD L. STRAWN, FOR THE PERIOD AUGUST 5 TO 14, 1952.

IN REQUESTING REVIEW OF THE MATTER YOU REFER TO THE UNIFORM RETIREMENT DATE ACT OF 1930, 46 STAT. 253, 5 U.S.C. 47A, AND OUR DECISION OF APRIL 23, 1954, 33 COMP. GEN. 518.

BY LETTER DATED NOVEMBER 14, 1956, THE DEPARTMENT OF THE ARMY, OFFICE OF THE ADJUTANT GENERAL, ARMY RECORDS CENTER, ST. LOUIS, MISSOURI, FURNISHED US WITH ADDITIONAL INFORMATION CONCERNING COLONEL STRAWN'S RETIREMENT. APPEARS THAT COLONEL STRAWN MADE APPLICATION FOR RETIREMENT ON MAY 5, 1952, AND THAT UPON ATTAINING THE AGE OF 60 YEARS ON AUGUST 5, 1952, AND HAVING MET THE OTHER REQUIREMENTS OF THE ACT, THE DEPARTMENT OF THE ARMY NOTIFIED HIM BY LETTER DATED AUGUST 13, 1952, THAT HIS APPLICATION FOR RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087, HAD BEEN APPROVED. HE WAS ALSO NOTIFIED THAT HIS NAME WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON AUGUST 31, 1952, WITH ENTITLEMENT TO RETIREMENT PAY FROM SEPTEMBER 1, 1952. IN YOUR LETTER OF MAY 10, 1956, YOU STATE THAT COLONEL STRAWN DIED AUGUST 14, 1952, WHILE IN YOUR LETTER OF JULY 19, 1956, YOU STATE THAT HE DIED AUGUST 15, 1952. IT FURTHER APPEARS THAT SINCE COLONEL STRAWN'S DEATH OCCURRED PRIOR TO SEPTEMBER 1, 1952, THE DEPARTMENT OF THE ARMY, ON THE BASIS OF A DECISION OF OUR OFFICE DATED NOVEMBER 23, 1948, 28 COMP. GEN. 321, DENIED YOUR CLAIM FOR RETIRED PAY FROM AUGUST 5, 1952, TO THE DATE OF COLONEL STRAWN'S DEATH.

IT WAS HELD IN DECISION DATED NOVEMBER 23, 1948, 28 COMP. GEN. 321, AS MODIFIED BY DECISION DATED JANUARY 11, 1951, 30 COMP. GEN. 287, RESPECTING THE EFFECTIVE DATE OF THE RETIRED PAY BENEFITS UNDER TITLE III THAT:

"* * * IN ANY CASE WHERE THE APPLICANT QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948, OR BETWEEN THAT DATE AND JANUARY 1, 1949--- THE EFFECTIVE DATE OF THE ACT--- HE MAY BE PAID RETIRED PAY BEGINNING WITH THE DATE HE QUALIFIED THEREFOR, PROVIDED THAT HIS APPLICATION WAS TIMELY FILED. ALL OTHER CASES WHERE THE APPLICATION IS OR HAS BEEN PROPERLY APPROVED, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION THEREFOR IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MEETS THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THEREBY BECOMES ELIGIBLE FOR SUCH RETIRED PAY, WHICHEVER IS LATER.'

CONCERNING THE QUESTION AS TO COLONEL STRAWN'S ENTITLEMENT TO RETIRED PAY FROM HIS 60TH BIRTHDAY ON AUGUST 5, 1952--- HAVING ON FILE AT THAT TIME AN APPLICATION FOR RETIRED PAY--- TO THE DATE OF HIS DEATH, IT HAS BEEN HELD THAT THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, IS NOT APPLICABLE TO DISABILITY RETIREMENT PAY AWARDED UNDER THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, SINCE SUCH RETIREMENT PAY IS IN THE NATURE OF A PENSION. WHILE STATEMENTS HAVE BEEN MADE IN OUR DECISIONS THAT A TRANSFER TO A RESERVE RETIRED LIST UNDER TITLE III OF THE 1948 ACT IS NOT A RETIREMENT IN THE SENSE THAT A MEMBER OF A REGULAR SERVICE RETIRES FOLLOWING A CAREER OF ACTIVE DUTY, AND THAT RETIRED PAY AWARDED UNDER TITLE III IS IN THE NATURE OF A PENSION FOR PAST SERVICE, THE COURT OF CLAIMS DECIDED IN THE CASE OF YARNALL V. UNITED STATES, 131 C.CLS. 111, THAT PERSONS GRANTED RETIRED PAY UNDER TITLE III ARE RETIRED WITHIN THE MEANING OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, WHICH GRANTS SPECIAL RETIRED PAY BENEFITS TO CERTAIN OFFICERS OF THE NAVY OR MARINE CORPS, AND RESERVE COMPONENTS THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT, WHEN SUCH OFFICERS ARE ,RETIRED.' AND, IN DECISION OF AUGUST 24, 1956, B- 93176, WE HELD THAT WE WOULD FOLLOW, IN SIMILAR CASES, THE COURT'S DECISION IN THE YARNALL CASE. IF MEMBERS WHO ARE GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT ARE TO BE REGARDED AS HAVING BEEN RETIRED, SO AS TO RECEIVE THE BENEFITS OF SECTION 412 (A) OF THE 1947 ACT, A CONCLUSION THAT SUCH MEMBERS ARE NOT RETIRED WITHIN THE MEANING OF THE ACT OF APRIL 23, 1930, WOULD NOT SEEM TO BE TENABLE. SOME OF THE ECONOMIES AND ADVANTAGES SOUGHT TO BE ACCOMPLISHED BY THE 1930 ACT ARE OBTAINED IN APPLYING THAT ACT TO CASES SUCH AS COLONEL STRAWN-S, INVOLVING RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND SINCE THE COURT HAS TAKEN THE POSITION IT DID TAKE IN THE YARNALL CASE AND WE HAVE AGREED TO FOLLOW THE COURT'S DECISION, WE ARE UNABLE TO AGREE THAT THERE IS A SUBSTANTIAL BASIS FOR DEPARTING FROM THE RULE SO APPLYING THE 1930 ACT, AS ANNOUNCED IN 28 COMP. GEN. 321 AND 30 COMP. GEN. 287, AND AS GENERALLY FOLLOWED BY THE MILITARY DEPARTMENTS SINCE 1948. SEE, IN THAT CONNECTION, B-108232, SEPTEMBER 12, 1956, AND B 129317, OCTOBER 18, 1956, COPIES OF WHICH ARE ENCLOSED FOR YOUR INFORMATION.

IT FOLLOWS THAT THE ACTION TAKEN IN SETTLEMENT DATED JULY 2, 1956, MUST BE AND IS SUSTAINED.