B-129317, OCTOBER 18, 1956, 36 COMP. GEN. 329

B-129317, OCTOBER 18, 1956, 36 COMP. GEN. 329

MILITARY PERSONNEL - RETIRED PAY - APPLICATIONS MADE PRIOR AND SUBSEQUENT TO THE ACT OF JULY 20, 1956 ARMY OFFICERS WHO HAD PREVIOUSLY APPLIED FOR AND WERE DENIED RETIREMENT PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, BECAUSE THEIR SERVICE AS ARMY HEADQUARTERS CLERKS OR CLERKS OF THE ARMY QUARTERMASTER CORPS COULD NOT BE CREDITED TOWARD RETIREMENT UNDER THE TITLE AS ORIGINALLY ENACTED, BUT WHO MAY NOW BE CREDITED WITH SUCH SERVICE PURSUANT TO THE AMENDATORY ACT OF JUNE 20, 1956, ARE ENTITLED TO RETIREMENT PAY EFFECTIVE AS OF THAT DATE. ARMY OFFICERS NOW PAST THE AGE OF 60 WHO DID NOT SUBMIT FORMAL APPLICATIONS FOR RETIREMENT PRIOR TO ENACTMENT OF THE ACT OF JUNE 20, 1956, WHICH AMENDED TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, TO PERMIT SERVICE AS ARMY HEADQUARTERS CLERKS AND CLERKS OF THE ARMY QUARTERMASTER CORPS TO BE CREDITED TOWARD RETIREMENT UNDER THAT TITLE, BUT WHO CORRESPONDED WITH THE ARMY DEPARTMENT AND WERE ADVISED THAT SUCH SERVICE COULD NOT BE CREDITED AND THAT THEY WERE NOT ELIGIBLE FOR RETIREMENT MAY BE CONSIDERED TO HAVE MADE APPLICATION FOR RETIREMENT AND MAY BE ALLOWED RETIREMENT PAY EFFECTIVE AS OF THE DATE OF THE AMENDATORY ACT. ARMY OFFICERS WHO CLAIM CREDIT TOWARD RETIREMENT FOR SERVICE AS ARMY HEADQUARTERS CLERKS OR CLERKS OF THE ARMY QUARTERMASTER CORPS BUT WHO DID NOT SUBMIT APPLICATIONS FOR OR CORRESPONDENCE RELATING TO RETIREMENT PRIOR TO JUNE 20, 1956, THE EFFECTIVE DATE OF THE ACT WHICH AMENDED TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, TO AUTHORIZE THE CREDITING OF SUCH SERVICE, ARE ENTITLED TO RETIREMENT PAY BEGINNING ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION IS FILED, NOTWITHSTANDING THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SEAGRAVE V. UNITED STATES THAT THE EFFECTIVE DATE OF ENTITLEMENT TO RETIREMENT PAY UNDER TITLE III IS THE DATE THE OFFICER MEETS THE ELIGIBILITY REQUIREMENTS. ARMY OFFICERS WHO PREVIOUSLY WERE PLACED ON THE RETIRED LIST PURSUANT TO THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AND WHO ARE NOW ENTITLED TO INCREASED RETIREMENT PAY BASED ON ADDITIONAL SERVICE AS ARMY HEADQUARTERS CLERKS OR CLERKS OF THE ARMY QUARTERMASTER CORPS, WHICH IS AUTHORIZED TO BE CREDITED UNDER THE ACT OF JUNE 20, 1956, ARE ENTITLED TO THE INCREASED PAY EFFECTIVE AS OF JUNE 20, 1956. UNDER THE ACT OF JUNE 20, 1956, WHICH AMENDED TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, TO AUTHORIZE THE CREDITING OF SERVICE AS ARMY HEADQUARTERS CLERKS OR CLERKS OF THE ARMY QUARTERMASTER CORPS TOWARD RETIREMENT, THE ESTATES OF OFFICERS WHO FILED PROPER APPLICATIONS FOR RETIRED PAY ARE ENTITLED TO THE BENEFITS TO WHICH THE OFFICERS WOULD HAVE BEEN ENTITLED FROM JUNE 20, 1956, TO THE DATES OF THEIR DEATH.

TO THE SECRETARY OF DEFENSE, OCTOBER 18, 1956:

BY LETTER OF SEPTEMBER 24, 1956, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTED DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN IN IMPLEMENTING PUBLIC LAW 601, 84TH CONGRESS, APPROVED JUNE 20, 1956, 70 STAT. 297, AS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 153 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 1, PUBLIC LAW 601, AMENDED SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036A (A), TO AUTHORIZE THE COUNTING OF TIME SERVED AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, QUARTERMASTER CORPS AND IN THE CASE OF WARRANT OFFICERS, CLASSIFIED FIELD SERVICE AS ARMY HEADQUARTERS CLERK, OR AS CLERK OF THE ARMY QUARTERMASTER CORPS UNDER LAWS IN EFFECT PRIOR TO AUGUST 29, 1916, FOR RETIRED PAY PURPOSES UNDER TITLE III OF THE 1948 ACT, AS AMENDED. IT IS PROVIDED FURTHER IN SECTION 2 OF THE AMENDATORY ACT THAT NO PERSON SHALL BE ENTITLED TO RETIRED PAY PRIOR TO THE EFFECTIVE DATE OF THAT ACT ( JUNE 20, 1956) BY VIRTUE OF THE ENACTMENT OF SUCH ACT.

WITH THE EXCEPTION OF QUESTION 4, THE QUESTIONS HERE INVOLVED ARE SIMILAR TO THOSE CONSIDERED IN DECISION OF MARCH 8, 1954, 33 COMP. GEN. 381, AND EXCEPT AS RESTRICTED BY THE PROVISION BARRING ENTITLEMENT TO RETIRED PAY FOR ANY PERIOD PRIOR TO JUNE 20, 1956, ANSWERS SIMILAR TO THOSE GIVEN IN THAT DECISION APPEAR REQUIRED HERE. THE QUESTIONS PRESENTED ARE QUOTED AND CONSIDERED, IN ORDER, BELOW.

QUESTION 1

1. IN CASES OF OFFICERS WHO SUBMITTED APPLICATIONS FOR RETIREMENT UNDER THE PROVISIONS OF TITLE III, ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 29 JUNE 1948 (62 STAT. 1089), AS AMENDED, AND WERE DETERMINED INELIGIBLE FOR RETIREMENT BY THE DEPARTMENT OF DEFENSE DUE TO INSUFFICIENT FEDERAL SERVICE, AND WHO, PROVIDED SERVICE AS CLASSIFIED FIELD SERVICE AS AN ARMY HEADQUARTERS CLERK OR AS A CLERK OF THE ARMY QUARTERMASTER CORPS IS CREDITED, WOULD HAVE BEEN ELIGIBLE FOR RETIREMENT, WOULD THE EFFECTIVE DATE FOR RETIREMENT PAY BE 20 JUNE 1956, THE EFFECTIVE DATE OF PUBLIC LAW 601, 84TH CONGRESS. (70 STAT. 297/?

AS INDICATED IN THE ANSWER TO QUESTION 1 IN 33 COMP. GEN. 381, A RIGHT TO RETIRED PAY WOULD ACCRUE COMMENCING ON THE FIRST DAY OF THE MONTH IN WHICH THE ELIGIBLE MEMBER, FILED APPLICATION FOR THE BENEFITS OF TITLE III OF THE 1948 ACT, EXCEPT FOR THE PROVISION IN PUBLIC LAW 601 WHICH BARS ENTITLEMENT TO RETIRED PAY FOR ANY PERIOD PRIOR TO JUNE 30, 1956, INSOFAR AS ENTITLEMENT DEPENDS ON SECTION 1 OF THAT ACT. HENCE, ASSUMING THAT QUESTION 1 REFERS ONLY TO PERSONS WHO SUBMITTED APPLICATIONS PRIOR TO JUNE 1, 1956, THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2

2. IN CASES OF OFFICERS NOW PAST AGE 60 WHO HAD NOT SUBMITTED AN APPLICATION FOR RETIREMENT BUT WHO HAD CORRESPONDED PREVIOUSLY WITH THE DEPARTMENT REGARDING RETIREMENT UNDER THE ACT OF 29 JUNE 1948, SUPRA, AND HAD BEEN ADVISED THAT SERVICE AS ARMY HEADQUARTERS CLERK OR CLERK, ARMY QUARTERMASTER CORPS WAS NOT CREDITABLE AND THAT ACCORDINGLY THEY WERE NOT ELIGIBLE FOR RETIREMENT, WOULD SUCH CORRESPONDENCE BE CONSIDERED AS AN APPLICATION FOR RETIREMENT SO AS TO PLACE THE OFFICER ON THE RETIRED LIST, IN ACCORDANCE WITH YOUR REPLY TO QUESTION 1, OR WOULD A SPECIFIC APPLICATION FOR RETIREMENT BE REQUIRED AND RETIREMENT MADE EFFECTIVE THE END OF THE MONTH SUCH APPLICATION IS APPROVED?

IN GENERAL, SUCH CORRESPONDENCE MAY BE CONSIDERED AS AN APPLICATION FOR RETIREMENT.

QUESTION 3

3. IN CASES OF OFFICERS NOW PAST AGE 60 WHO HAD NOT SUBMITTED AN APPLICATION OR CORRESPONDED WITH THE DEPARTMENT REGARDING RETIREMENT UNDER THE ACT OF 29 JUNE 1948, SUPRA, BUT WHO NOW, IN VIEW OF PUBLIC LAW 601, 84TH CONGRESS, SUPRA, HAVE FILED APPLICATION, WOULD THE EFFECTIVE DATE OF RETIREMENT BE THE LAST DAY OF THE MONTH IN WHICH THEIR APPLICATION IS APPROVED OR 20 JUNE 1956, THE EFFECTIVE DATE OF PUBLIC LAW 601, 84TH CONGRESS?

WHILE THE COURT OF CLAIMS IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 C.1CLS. 790, HAS TAKEN A DIFFERENT VIEW FROM THAT EXPRESSED IN OUR DECISION OF NOVEMBER 23, 1948, AND JANUARY 11, 1951, 28 COMP. GEN. 321, AND 30 COMP. GEN. 287, RESPECTIVELY, REGARDING THE EFFECTIVE DATE OF ENTITLEMENT TO RETIRED PAY UNDER TITLE III OF THE 1948 ACT, AND HAS INDICATED THAT THE DATE OF COMMENCEMENT OF RETIRED PAY SHOULD BE BASED ON THE DATE OF MEETING THE ELIGIBILITY REQUIREMENTS OF THAT ACT RATHER THAN THE DATE OF ENTITLEMENT FIXED AFTER FILING APPLICATION FOR THE BENEFITS OF THAT ACT, FOR THE REASONS STATED IN OUR DECISION OF APRIL 10, 1956, 35 COMP. GEN. 563, WE HAVE CONCLUDED NOT TO FOLLOW THE SEAGRAVE DECISION AT THIS TIME. HENCE, PERSONS OVER 60 YEARS OF AGE WHO, IN VIEW OF PUBLIC LAW 601, HAVE FILED APPLICATION FOR RETIRED PAY UNDER TITLE III OF THE 1948 ACT SINCE JUNE 20, 1956, SHOULD BE VIEWED AS ENTITLED TO RETIRED PAY BEGINNING ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SUCH APPLICATION WAS FILED. IT IS THE MONTH IN WHICH THE APPLICATION IS FILED, RATHER THAN THE MONTH THE APPLICATION IS APPROVED, WHICH FIXES THE COMMENCEMENT DATE OF ENTITLEMENT TO RETIRED PAY. 30 COMP. GEN. 287.

QUESTION 4

4. IN CASES OF OFFICERS WHO HAVE BEEN PREVIOUSLY PLACED ON THE RETIRED LIST PURSUANT TO THE ACT OF 29 JUNE 1948 AND WHO WOULD NOW BE ENTITLED TO INCREASED RETIRED PAY BECAUSE OF ADDITIONAL SERVICE AUTHORIZED BY PUBLIC LAW 601, 84TH CONGRESS, SUPRA, WOULD THE EFFECTIVE DATE OF SUCH INCREASE BE 20 JUNE 1956, THE EFFECTIVE DATE OF THE ACTS?

IN VIEW OF SECTION 2, PUBLIC LAW 601, THE EFFECTIVE DATE OF THE INCREASE WOULD BE JUNE 20, 1956.

QUESTION 5

5. IN CONSIDERATION OF THE FACT THAT THESE QUESTIONS INCLUDE OFFICERS WHO HAVE BEEN RETIRED PURSUANT TO THE ACT OF 29 JUNE 1948, SUPRA, AS WELL AS THOSE FOUND INELIGIBLE FOR RETIREMENT BENEFITS BECAUSE OF INSUFFICIENT SERVICE, ARE THE ESTATES OF SUCH OFFICERS WHO ARE NOW DECEASED, ENTITLED TO RECEIVE ANY BENEFITS WHICH THE OFFICERS WOULD HAVE RECEIVED IF STILL LIVING?

IT IS ASSUMED THAT THE OFFICERS TO WHOM THIS QUESTION REFERS FILED PROPER APPLICATIONS FOR RETIRED PAY UNDER TITLE III. IN SUCH CIRCUMSTANCES, THE ESTATES OF THE OFFICERS ARE ENTITLED TO THE BENEFITS WHICH THE OFFICERS WOULD HAVE RECEIVED ON AND AFTER JUNE 20, 1956, IF THEY HAD NOT DIED. COMP. GEN. 381.