B-134889, FEBRUARY 25, 1958, 37 COMP. GEN. 538

B-134889, FEBRUARY 25, 1958, 37 COMP. GEN. 538

MILITARY PERSONNEL - RETIRED PAY - SUBSEQUENT NATIONAL GUARD APPOINTMENT IN HIGHER GRADE - GRAYSON CASE AN ARMY COLONEL WHO, AFTER PLACEMENT ON THE RETIRED LIST ON DECEMBER 31, 1952, WAS APPOINTED BRIGADIER GENERAL IN THE NATIONAL GUARD OF THE UNITED STATES AND SUBSEQUENTLY PROMOTED TO MAJOR GENERAL BUT WHO WAS NOT ORDERED TO ACTIVE DUTY BY THE FEDERAL GOVERNMENT AND DID NOT SERVE ON ACTIVE DUTY IN EITHER OF THE HIGHER GRADES DOES NOT MEET THE REQUIREMENTS IN 10 U.S.C. 3963 (A) FOR ADVANCEMENT TO THE GRADE OF BRIGADIER GENERAL OR MAJOR GENERAL ON THE RETIRED LIST, NOR DOES HE COME WITHIN THE SCOPE OF 10 U.S.C. 1005 (SUBSEQUENTLY REPEALED) APPLICABLE TO OFFICERS WHO ARE RETIRED WHILE SERVING ON ACTIVE DUTY IN HIGHER TEMPORARY GRADES. ANY RETIRED PAY CASE CONSIDERED SIMILAR TO THE GRAYSON CASE ( GRAYSON V. UNITED STATES, C.1CLS. NO. 248-54), WHICH WAS BASED ON THE PARTICULAR FACTS RELATING TO THIS MEMBER'S MILITARY STATUS, SHOULD BE SUBMITTED FOR ADVANCE DECISION FOR CONSIDERATION SEPARATELY ON THE INDIVIDUAL MERITS OF EACH CASE.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, FEBRUARY 25, 1958:

THE OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED WITH ENDORSEMENT DATED JANUARY 13, 1958, YOUR LETTER OF JANUARY 2, 1958, AND ENCLOSURES, INCLUDING A VOUCHER PRESENTED TO YOU FOR PAYMENT STATED IN FAVOR OF COLONEL HAROLD A. DOHERTY, O-14642, U.S. ARMY, RETIRED, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD FROM JANUARY 13, 1957, TO NOVEMBER 30, 1957, INCLUSIVE.

COLONEL DOHERTY WAS PLACED ON THE RETIRED LIST OF THE ARMY ON DECEMBER 31, 1952, PURSUANT TO THE PROVISIONS OF SECTION 1243, REVISED STATUTES (10 U.S.C. 943, 1952 USED.), AUTHORIZING RETIREMENT, UPON AN OFFICER'S OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, AFTER 30 YEARS' SERVICE. HE WAS APPOINTED ADJUTANT GENERAL, INDIANA NATIONAL GUARD, EFFECTIVE JANUARY 12, 1953. HE BECAME A RESERVE COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES ( NATIONAL GUARD OF THE UNITED STATES) MAY 28, 1953, IN THE GRADE OF BRIGADIER GENERAL AND HE WAS PROMOTED TO THE GRADE OF MAJOR GENERAL IN THE NATIONAL GUARD OF THE UNITED STATES EFFECTIVE APRIL 10, 1956. HIS TERM OF OFFICE AS ADJUTANT GENERAL, INDIANA NATIONAL GUARD, EXPIRED JANUARY 12, 1957, AND HIS APPOINTMENT AS MAJOR GENERAL IN THE NATIONAL GUARD OF THE UNITED STATES WAS TERMINATED AS OF THAT SAME DATE.

COLONEL DOHERTY CLAIMS THE DIFFERENCE BETWEEN THE RETIRED PAY OF A MAJOR GENERAL WITH OVER 30 YEARS' SERVICE AND THAT OF A COLONEL WITH OVER 30 YEARS' SERVICE FOR THE PERIOD FROM JANUARY 13, 1957, TO NOVEMBER 30, 1957, INCLUSIVE. THE CLAIM IS ADVANCED UNDER THE PROVISIONS OF SECTION 203 (A), ACT OF JUNE 29, 1948, 62 STAT. 1085, 10 U.S.C. 1002, ON THE AUTHORITY OF THE DECISION OF THE COURT OF CLAIMS RENDERED MARCH 6, 1957, IN THE CASE OF THOMAS J. GRAYSON V. UNITED STATES, C.1CLS. NO. 248-54.

SECTION 203 (A) OF THE 1948 LAW PROVIDED AS FOLLOWS:

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT RETIRED PAY OF SUCH HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST. ( ITALICS ADDED.)

THUS, SECTION 203 (A) AUTHORIZED THE ADVANCEMENT ON THE APPLICABLE OFFICERS' RETIRED LIST OF EACH COMMISSIONED OFFICER WHOSE STATUS PLACED HIM WITHIN THE SCOPE OF THAT SECTION TO THE "HIGHEST TEMPORARY GRADE" IN WHICH SUCH OFFICER "SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY.'

THE DECISION IN THE GRAYSON CASE NECESSARILY RESTS ON THE PARTICULAR FACTS PECULIAR TO THAT CASE AND WHICH WERE FOUND BY THE COURT TO HAVE ENTITLED THE PLAINTIFF, GRAYSON, TO THE BENEFITS PRESCRIBED IN SECTION 203 (A). THESE PERTINENT AND SPECIFIC FINDINGS OF FACT IN THE GRAYSON CASE WERE:

(1) GRAYSON WAS FEDERALLY RECOGNIZED AS OF SEPTEMBER 26, 1940, AS BRIGADIER GENERAL, ADJUTANT GENERAL'S DEPARTMENT, MISSISSIPPI NATIONAL GUARD,

(2) ON OCTOBER 15, 1940, SPECIAL ORDER NO. 226, FROM HEADQUARTERS OF THE 4TH CORPS AREA, ORDERED GRAYSON TO "ACTIVE DUTY" FOR A PERIOD OF 12 MONTHS UNLESS SOONER RELIEVED EFFECTIVE OCTOBER 15, 1940, AS BRIGADIER GENERAL,

(3) IN THE MONTH OF FEBRUARY 1941, GRAYSON WAS APPOINTED BRIGADIER GENERAL, ADJUTANT GENERAL'S DEPARTMENT, NATIONAL GUARD OF THE UNITED STATES, ARMY OF THE UNITED STATES, TO DATE FROM OCTOBER 9, 1940,

(4) GRAYSON SERVED ON ACTIVE DUTY AS BRIGADIER GENERAL, ADJUTANT GENERAL'S DEPARTMENT, NATIONAL GUARD OF THE UNITED STATES, ARMY OF THE UNITED STATES, FROM FEBRUARY 1941 TO JULY 25, 1942, AND

(5) THE SECRETARY OF THE ARMY DETERMINED THAT GRAYSON HAD SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL.

ON THOSE FACTS, COUPLED WITH THE LIBERAL CONSTRUCTION PLACED BY THE COURT OF CLAIMS ON THE TERM ,HIGHEST TEMPORARY GRADE" CONTAINED IN SECTION 203 (A), IT WAS HELD THAT THE PLAINTIFF, GRAYSON, WAS ENTITLED TO COMPUTE HIS RETIRED PAY UNDER THE PROVISIONS OF SECTION 203 (A) ON THE BASIS OF THE GRADE OF BRIGADIER GENERAL.

FROM THE FACTS WHICH HAVE BEEN SET FORTH ABOVE WITH RESPECT TO COLONEL DOHERTY'S MILITARY STATUS DURING THE PERIOD FROM JANUARY 12, 1953, TO JANUARY 12, 1957, IT IS REASONABLY ESTABLISHED THAT HE WAS FEDERALLY RECOGNIZED AS BRIGADIER GENERAL, INDIANA NATIONAL GUARD, AND THAT HE WAS APPOINTED BRIGADIER GENERAL AND THEREAFTER PROMOTED TO THE GRADE OF MAJOR GENERAL IN THE NATIONAL GUARD OF THE UNITED STATES, ARMY OF THE UNITED STATES. HOWEVER, IT IS NOT ESTABLISHED THAT COLONEL DOHERTY WAS ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL, OR AS A MAJOR GENERAL, IN THE NATIONAL GUARD OF THE UNITED STATES, ARMY OF THE UNITED STATES (COMPARE ITEM (2) ABOVE IN THE GRAYSON CASE); THAT HE SERVED ON ACTIVE DUTY UNDER COMPETENT FEDERAL ORDERS IN THE GRADE OF BRIGADIER GENERAL, OR MAJOR GENERAL, NATIONAL GUARD OF THE UNITED STATES, ARMY OF THE UNITED STATES (ITEM (4) ABOVE IN THE GRAYSON CASE), OR THAT THE SECRETARY OF THE ARMY HAS MADE A DETERMINATION THAT COLONEL DOHERTY SERVED SATISFACTORILY FOR NOT LESS THAN 6 MONTHS WHILE SERVING ON ACTIVE DUTY IN THE GRADE OF BRIGADIER GENERAL OR MAJOR GENERAL (COMPARE ITEM (5) ABOVE IN THE GRAYSON CASE).

THE PERTINENT PROVISIONS OF SECTION 203 (A) OF THE 1948 LAW--- AS AMENDED BY PUBLIC LAW 547, 84TH CONGRESS, MAY 31, 1956, 70 STAT. 222, DELETING THE PHRASE "DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946,"--- WERE REPLACED BY SECTION 3963 (A), TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 230, 231. A COMMISSIONED OFFICER WITHIN THE SCOPE OF SECTION 3963 (A) OF THE 1956 ACT IS ENTITLED TO A RETIRED GRADE EQUAL TO THE "HIGHEST TEMPORARY GRADE" IN THE ARMY IN WHICH HE "SERVED ON ACTIVE DUTY SATISFACTORILY" AS DETERMINED BY THE SECRETARY OF THE ARMY "FOR NOT LESS THAN SIX MONTHS.' THE TERM "ACTIVE DUTY" IS DEFINED IN SECTION 101 (22), TITLE 10, AND IN SECTION 101 (11), TITLE 32, U.S. CODE, 70A STAT. 5, 597, RESPECTIVELY, AS "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES.' THE DEFINITION SAYS THAT "ACTIVE DUTY" INCLUDES "DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.'

IT IS OUR VIEW THAT COLONEL DOHERTY'S STATUS WITH RESPECT TO THE PROVISIONS OF FORMER SECTION 203 (A) OF THE 1948 LAW DIFFERS MATERIALLY FROM THAT OF THE PLAINTIFF, GRAYSON, AS FOUND BY THE COURT IN THE DECISION OF MARCH 6, 1957. ALSO, IT SEEMS APPARENT THAT COLONEL DOHERTY'S STATUS DOES NOT MEET THE REQUIREMENTS PRESCRIBED IN 10 U.S.C. 3963 (A), 70A STAT. 230, 231, FOR ADVANCEMENT UNDER AUTHORITY OF THOSE STATUTORY PROVISIONS TO THE GRADE OF BRIGADIER GENERAL OR MAJOR GENERAL ON THE RETIRED LIST.

IT IS NOTED THAT COLONEL DOHERTY MAKES SPECIFIC REFERENCE IN HIS LETTER (CONTAINED IN THE FILE) TO SECTION 203 (F) OF THE 1948 LAW, 62 STAT. 1086, 10 U.S.C. 1005, APPARENTLY IN THE BELIEF THAT HIS RETIRED STATUS MAY COME WITHIN THE SCOPE OF THOSE STATUTORY PROVISIONS. SECTION 203 (F/--- REPEALED BY SECTION 4 (B), ACT OF MAY 31, 1956, 70 STAT. 222--- PROVIDED AS FOLLOWS:

EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW ON OR AFTER AUGUST 7, 1947, BUT NOT LATER THAN JANUARY 1, 1957, WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE NOT HIGHER THAN THAT OF MAJOR GENERAL SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO SUCH GRADE, AND SHALL RECEIVE RETIRED OR RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT COMPUTATION ON THE BASIS OF PAY OF SUCH HIGHEST GRADE SHALL BE MADE WITHOUT BENEFIT OF LONGEVITY CREDIT FOR RETIRED LIST SERVICE. NO OFFICER SHALL BE ORDERED TO ACTIVE DUTY OR PROMOTED TO ANY HIGHER TEMPORARY GRADE SOLELY FOR THE PURPOSE OF ENTITLING HIM TO RETIREMENT IN ADVANCED GRADE PURSUANT TO THIS SUBSECTION. ( ITALICS SUPPLIED.)

AS STATED ABOVE, COLONEL DOHERTY WAS RETIRED ON DECEMBER 31, 1952, WHILE SERVING IN THE GRADE OF COLONEL, REGULAR ARMY. HENCE, HE WAS NOT RETIRED "WHILE SERVING ON ACTIVE DUTY" IN THE "TEMPORARY GRADE" OF MAJOR GENERAL, AND CONSEQUENTLY THE PROVISIONS OF FORMER SECTION 203 (F) DO NOT HAVE ANY APPLICATION IN HIS CASE.

THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE.

IT WILL BE NOTED, AS ABOVE POINTED OUT, THAT THE DECISION IN THE GRAYSON CASE IS RESTED ON THE PARTICULAR FACTS PECULIAR TO THAT CASE. THEREFORE, A REPLY WILL NOT BE MADE ON YOUR REQUEST TO BE ADVISED AS TO THE APPLICABILITY OF THE GRAYSON DECISION TO OTHER "SIMILAR CASES," IT APPEARING TO BE DESIRABLE FROM EVERY STANDPOINT THAT ANY SUCH CASE WHICH MAY ARISE BE CONSIDERED SEPARATELY AND ON ITS OWN MERITS. ACCORDINGLY, ANY CASE CONSIDERED TO BE "SIMILAR" TO THE GRAYSON CASE SHOULD BE SUBMITTED FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT.