B-134566, FEB. 28, 1958

B-134566: Feb 28, 1958

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IT APPEARS THAT SERGEANT JONES WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE RANK OF STAFF SERGEANT EFFECTIVE SEPTEMBER 23. 24 DAYS WERE SERVED ON ACTIVE DUTY. THE ENLISTED MAN WAS CERTIFIED AS BEING ELIGIBLE TO RECEIVE RETIRED PAY IN THE GRADE OF TECHNICAL SERGEANT EFFECTIVE ON THE DATE OF HIS RETIREMENT. YOU SAY THAT THE AIRMAN WAS PAID RETIRED PAY AS A TECHNICAL SERGEANT FOR THE PERIOD SEPTEMBER 24 TO 30. PARTICULARLY SINCE THE HIGHER TEMPORARY GRADE WAS HELD WHILE SERVING IN THE ARMY OF THE UNITED STATES. HIS RETIRED PAY AS TECHNICAL SERGEANT WAS REDUCED TO THAT OF A STAFF SERGEANT EFFECTIVE OCTOBER 1. IN THE EVENT THE PAYMENT ON THE VOUCHER IS DETERMINED TO BE IMPROPER.

B-134566, FEB. 28, 1958

TO LIEUTENANT COLONEL C. W. GRIFFIN:

BY LETTER RECEIVED HERE DECEMBER 4, 1957, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, FORWARDED YOUR LETTER OF OCTOBER 30, 1957,WITH ENCLOSURES, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF MURRAY M. JONES, RETIRED ENLISTED MAN OF THE UNITED STATES AIR FORCE, FOR THE DIFFERENCE BETWEEN RETIRED PAY AS A TECHNICAL SERGEANT AND RETIRED PAY AS A STAFF SERGEANT FOR THE PERIOD OCTOBER 1 TO 31, 1957.

IT APPEARS THAT SERGEANT JONES WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE RANK OF STAFF SERGEANT EFFECTIVE SEPTEMBER 23, 1957, UNDER THE PROVISIONS OF 10 U.S.C. 1202, BY REASON OF 30 PERCENT TEMPORARY DISABILITY AFTER COMPLETING 10 YEARS, 5 MONTHS, 11 DAYS SERVICE, OF WHICH 10 YEARS, 3 MONTHS, 24 DAYS WERE SERVED ON ACTIVE DUTY. UPON A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE, UNDER THE PROVISIONS OF 10 U.S.C. 1372, THAT THE AIRMAN HELD THE GRADE OF TECHNICAL SERGEANT SATISFACTORILY FOR THE PERIOD JUNE 13, 1944, TO OCTOBER 21, 1945, WHILE SERVING WITH THE CAVALRY, ARMY OF THE UNITED STATES, THE ENLISTED MAN WAS CERTIFIED AS BEING ELIGIBLE TO RECEIVE RETIRED PAY IN THE GRADE OF TECHNICAL SERGEANT EFFECTIVE ON THE DATE OF HIS RETIREMENT, SEPTEMBER 23, 1957. YOU SAY THAT THE AIRMAN WAS PAID RETIRED PAY AS A TECHNICAL SERGEANT FOR THE PERIOD SEPTEMBER 24 TO 30, 1957, BUT DUE TO DOUBT IN THE MATTER, PARTICULARLY SINCE THE HIGHER TEMPORARY GRADE WAS HELD WHILE SERVING IN THE ARMY OF THE UNITED STATES, HIS RETIRED PAY AS TECHNICAL SERGEANT WAS REDUCED TO THAT OF A STAFF SERGEANT EFFECTIVE OCTOBER 1, 1957. IN THE EVENT THE PAYMENT ON THE VOUCHER IS DETERMINED TO BE IMPROPER, YOU ASK WHETHER IT WOULD LIKEWISE BE IMPROPER IF SERGEANT JONES HAD SERVED IN THE AIR CORPS, ARMY OF THE UNITED STATES, IN THE HIGHER TEMPORARY GRADE RATHER THAN IN THE CAVALRY, ARMY OF THE UNITED STATES.

ACCOMPANYING THE SUBMISSION IS A RESUME OF SERVICE OF MURRAY M. JONES SHOWING, AMONG OTHER THINGS, THAT FOLLOWING HIS RECALL TO ACTIVE DUTY (JANUARY 13, 1942) AS A PRIVATE IN THE ARMY OF THE UNITED STATES, HE WAS ASSIGNED TO THE 8TH CAVALRY; THAT HE WAS SUBSEQUENTLY PROMOTED TO THE TEMPORARY GRADE OF TECHNICAL SERGEANT ON JUNE 13, 1944; AND THAT HE SERVED IN THE GRADE OF TECHNICAL SERGEANT UNTIL HE WAS HONORABLY DISCHARGED FROM THE ARMY ON OCTOBER 21, 1945. THEREAFTER, ON NOVEMBER 1, 1951, HE ENLISTED IN THE UNITED STATES AIR FORCE AS A PRIVATE FIRST CLASS; HE WAS SUBSEQUENTLY PROMOTED TO STAFF SERGEANT (TEMPORARY) ON DECEMBER 9, 1954; AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 23, 1957, IN THE GRADE OF TECHNICAL SERGEANT BASED UPON A DETERMINATION THAT HE SATISFACTORILY SERVED IN SUCH HIGHER GRADE.

IN TRANSMITTING YOUR REQUEST FOR A DECISION, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE STATES THAT THE QUESTION INVOLVED IS WHETHER A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE, THAT THE AIRMAN SATISFACTORILY SERVED IN THE HIGHER GRADE, MADE ON THE BASIS OF THE MEMBER'S SERVICE RECORD AND HONORABLE DISCHARGE CERTIFICATE MAY BE ACCEPTED, OR WHETHER SUCH DETERMINATION MUST BE MADE BY THE SECRETARY OF THE ARMY, THE ARMY BEING THE SERVICE IN WHICH THE MEMBER ATTAINED THE GRADE OF TECHNICAL SERGEANT.

THE DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE THAT SERGEANT JONES HELD THE TEMPORARY GRADE OF TECHNICAL SERGEANT WHILE SERVING IN THE ARMY OF THE UNITED STATES WAS BASED ON THE PROVISIONS OF 10 U.S.C. 1372, WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 OR 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SECTION 1202 OR 1205 OF THIS TITLE, IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(1) THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.

(2) THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM WHICH HE IS RETIRED.'

PROVISIONS SUBSTANTIALLY THE SAME AS THE ABOVE STATUTORY PROVISIONS WERE CONTAINED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, AND WERE REPLACED BY THE ABOVE PROVISIONS WHICH WERE ENACTED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 105, 10 U.S.C. 1372.

AT THE REQUEST OF THE SECRETARY OF THE NAVY, AS SET OUT IN OUR DECISION OF JULY 8, 1953, B-115121, 33 COMP. GEN. 10, THERE WAS CONSIDERED THE QUESTION WHETHER A MEMBER RETIRED UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 ACT AND DETERMINED BY THE SECRETARY CONCERNED TO HAVE SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK, GRADE, OR RATING IN A BRANCH OF THE UNIFORMED SERVICES OTHER THAN THAT FROM WHICH RETIRED WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF SUCH HIGHER RANK, GRADE, OR RATING. WE CONCLUDED, IN THAT DECISION, THAT SUCH PROVISIONS HAD REFERENCE ONLY TO THE ARMED FORCE FROM WHICH RETIRED AND THAT AN INDIVIDUAL WHO HAD SERVED IN A HIGHER RANK, GRADE, OR RATING IN A FORCE OTHER THAN THAT FROM WHICH RETIRED IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH HIGHER RANK, GRADE, OR RATING.

SINCE SERGEANT JONES WAS RETIRED FROM THE AIR FORCE RATHER THAN THE ARMY, AND SINCE THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED IN THE AIR FORCE WAS THAT OF A STAFF SERGEANT, IT FOLLOWS THAT THE DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE THAT JONES SERVED SATISFACTORILY IN THE TEMPORARY GRADE OF TECHNICAL SERGEANT WHILE SERVING IN THE ARMY OF THE UNITED STATES MAY NOT BE ACCEPTED AS AUTHORIZING INCREASED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1372. FURTHER, IF THE SECRETARY OF THE ARMY SHOULD NOW MAKE A DETERMINATION THAT JONES SERVED IN THE HIGHER TEMPORARY GRADE IN THE ARMY, THERE WOULD BE NO AUTHORITY TO PAY THE INCREASED RETIRED PAY TO HIM IN VIEW OF THE RULE SET FORTH IN THE ABOVE- CITED DECISION OF JULY 8, 1953, AND HELD APPLICABLE IN HIS CASE.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH IS BEING RETAINED HERE.

CONCERNING YOUR QUESTION WHETHER PAYMENT STILL WOULD BE IMPROPER, IF JONES HAD SERVED IN THE AIR CORPS, ARMY OF THE UNITED STATES, IN THE HIGHER TEMPORARY GRADE RATHER THAN IN THE CAVALRY, ARMY OF THE UNITED STATES, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTIONS 208 (C) AND (D) OF THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, 5 U.S.C. 626C (C) AND (D). UNDER THOSE PROVISIONS, INSOFAR AS HERE APPLICABLE, ALL ENLISTED MEN ENLISTED IN THE AIR CORPS, UNITED STATES ARMY, OR THE ARMY AIR FORCE WERE TRANSFERRED IN BRANCH TO THE UNITED STATES AIR FORCE, AND ALL RECORDS, ETC., WERE PLACED UNDER THE JURISDICTION OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE. SECTION 305 OF THE ACT, 5 U.S.C. 171-1, STATES THAT ALL LAWS, ORDERS, REGULATIONS, AND OTHER ACTIONS APPLICABLE WITH RESPECT TO ANY FUNCTIONS, ACTIVITIES, PERSONNEL, PROPERTY, RECORDS, OR OTHER THINGS TRANSFERRED UNDER SECTIONS 626-626D OF THIS TITLE OR WITH RESPECT TO ANY OFFICER, DEPARTMENT, OR AGENCY, FROM WHICH SUCH TRANSFER IS MADE, SHALL, EXCEPT TO THE EXTENT RESCINDED, MODIFIED, SUPERSEDED, TERMINATED, OR MADE INAPPLICABLE BY OR UNDER AUTHORITY OF LAW, HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN MADE; BUT, AFTER ANY SUCH TRANSFER ANY SUCH LAW, TC., SHALL BE DEEMED TO HAVE VESTED SUCH FUNCTION IN OR RELATE TO THE OFFICER, DEPARTMENT, OR AGENCY, TO WHICH THE TRANSFER WAS MADE. IT IS OUR VIEW THAT SUCH STATUTORY PROVISIONS, WHEN READ IN CONJUNCTION WITH 10 U.S.C. 1372, REQUIRE THE CONCLUSION THAT IF THE PRIOR SERVICE PERFORMED BY JONES HAD BEEN SERVED IN A HIGHER TEMPORARY GRADE IN THE AIR CORPS, ARMY OF THE UNITED STATES, IT PROPERLY COULD BE CONSIDERED AS TANTAMOUNT TO SERVICE IN THE UNITED STATES AIR FORCE AND THAT A DETERMINATION OF SATISFACTORY SERVICE IN THE HIGHER GRADE MADE BY THE SECRETARY OF THE AIR FORCE THEN WOULD HAVE BEEN ACCEPTABLE AS AUTHORIZING THE INCREASED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1372. COMPARE THE ANSWER TO QUESTION 2 IN OUR DECISION OF JULY 23, 1957, B-131943, 37 COMP. GEN. 45.