B-136647, NOV. 4, 1964

B-136647, NOV. 4, 1964

TO MRS. ALICE F. PERALTA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1964, REQUESTING RECONSIDERATION OF THE CLAIM FILED BY YOU AS WIDOW OF MARCELO B. PERALTA, FIRST LIEUTENANT, U.S. ARMY, RETIRED, DECEASED, FOR INCREASED RETIRED PAY BELIEVED BY YOU TO BE DUE THE ESTATE OF THE DECEDENT. YOUR CLAIMS COVERS THE DIFFERENCE BETWEEN THE RATES OF RETIRED PAY RECEIVED BY LIEUTENANT PERALTA AND THE RATES WHICH YOU BELIEVE HE SHOULD HAVE RECEIVED, INCLUDING LONGEVITY CREDIT FOR HIS 32 YEARS OF SERVICE.

THE RECORD SHOWS THAT THE DECEDENT WAS RETIRED SEPTEMBER 30, 1949, AS A MASTER SERGEANT WITH OVER 32 YEARS OF SERVICE, WAS ADVANCED TO THE GRADE OF FIRST LIEUTENANT ON THE RETIRED LIST EFFECTIVE OCTOBER 1, 1949, AND WAS PAID THE RETIRED PAY OF A FIRST LIEUTENANT FOR THE ENTIRE PERIOD FROM OCTOBER 1, 1949, TO THE DATE OF DEATH, JANUARY 15, 1960. FROM OCTOBER 1, 1949, TO APRIL 30, 1952, HE WAS PAID RETIRED PAY AT THE RATE OF $260.85 PER MONTH WHICH WAS COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY RATE OF $349.13.

THE SUPPLEMENTAL SHEET FORWARDED WITH YOUR LETTER OF MAY 4, 1964, SHOWS THAT YOU BELIEVE THE RATE OF $349.13 WAS THE RATE OF BASIC PAY PROVIDED IN THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, FOR A FIRST LIEUTENANT WITH NO LONGEVITY CREDIT AND YOU HAVE INCREASED THAT RATE BY APPROXIMATELY 77.1 PERCENT TO ARRIVE AT THE FIGURE, $618.47, WHICH YOU CONSIDER THE RATE OF BASIC PAY TO BE USED IN COMPUTING LIEUTENANT PERALTA'S RETIRED PAY. THE SAME FORMULA WAS FOLLOWED BY YOU IN COMPUTING THE RATES CLAIMED UNDER THE 1952 AND 1955 PAY ACTS.

THE STATUTES AUTHORIZING PAY FOR THE MILITARY SERVICES PRIOR TO OCTOBER 1, 1949, PROVIDED A RATE OF BASE PAY FOR EACH PAY PERIOD AND AUTHORIZED A PERCENTAGE INCREASE TO BE ADDED TO THAT BASE PAY UPON COMPLETION OF SPECIFIED PERIODS OF SERVICE. FOR INSTANCE, THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359, AS AMENDED BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, WHICH WAS IN EFFECT IMMEDIATELY PRIOR TO OCTOBER 1, 1949, PROVIDED THAT A FIRST LIEUTENANT WITH OVER 10 YEARS OF SERVICE WOULD RECEIVE THE PAY OF THE THIRD PAY PERIOD, FOR WHICH THE BASE PAY WAS $2,760 PER YEAR (OR $230 PER MONTH) WITH AN INCREASE OF 5 PERCENT TO BE ADDED UPON COMPLETION OF EACH 3-YEAR PERIOD UNTIL, UPON COMPLETION OF 30 YEARS OF SERVICE, A FIRST LIEUTENANT WOULD RECEIVE A TOTAL OF $345 PER MONTH, REPRESENTING A 50 PERCENT INCREASE OVER THE BASE PAY.

THE CAREER COMPENSATION ACT, HOWEVER, INSTITUTED A NEW METHOD OF ESTABLISHING RATES OF PAY. INSTEAD OF PROVIDING A RATE OF BASE PAY TO BE INCREASED BY A SPECIFIED PERCENTAGE UPON COMPLETION OF A STATED NUMBER OF YEARS OF SERVICE, THE CAREER COMPENSATION ACT SPECIFIED THE ACTUAL RATES OF PAY TO BE RECEIVED BY MEMBERS IN THE VARIOUS PAY GRADES UPON COMPLETION OF EACH PERIOD OF SERVICE. SECTION 201 (A) OF THAT ACT PROVIDED:

"FOR THE PURPOSE OF COMPUTING THE BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES, PAY GRADES ARE PRESCRIBED AND MONTHLY BASIC PAY FOR SUCH MEMBERS IS ESTABLISHED WITHIN EACH PAY GRADE ACCORDING TO CUMULATIVE YEARS OF SERVICE, AS FOLLOWS: * * *.'

THE TABLE OF RATES PROVIDED IN THAT SECTION SHOWS THAT A FIRST LIEUTENANT WITH NO LONGEVITY CREDIT IS ENTITLED TO PAY AT THE RATE OF $249.38 PER MONTH WHILE SERVING ON ACTIVE DUTY AND HIGHER RATES ARE PROVIDED FOR AN OFFICER OF THAT GRADE AFTER COMPLETION OF 2 YEARS, 4 YEARS, 6 YEARS, ETC. A FIRST LIEUTENANT CREDITED WITH OVER 30 YEARS OF SERVICE FOR LONGEVITY PURPOSES IS ENTITLED TO PAY AT THE RATE OF $349.13 PER MONTH WHILE SERVING ON ACTIVE DUTY. THUS THE MAXIMUM ACTIVE DUTY PAY AUTHORIZED FOR A FIRST LIEUTENANT UNDER THE 1949 ACT IS $349.13 PER MONTH. ALTHOUGH THE RATES ARE NOT ESTABLISHED ON THE BASIS OF PERCENTAGE INCREASES, THIS RATE IS EQUIVALENT TO AN INCREASE OF APPROXIMATELY 40 PERCENT ON ACCOUNT OF LONGEVITY CREDIT. MAXIMUM RETIRED PAY IS COMPUTED AT 75 PERCENT OF THE APPLICABLE RATE OF ACTIVE DUTY PAY AND, SINCE LIEUTENANT PERALTA WAS CREDITED WITH OVER 30 YEARS OF SERVICE FOR LONGEVITY PURPOSES, HIS RETIRED PAY WAS COMPUTED AT 75 PERCENT OF THE PAY OF A FIRST LIEUTENANT WITH OVER 30 YEARS OF SERVICE, $349.13. THE PRODUCT OF THAT COMPUTATION, $261.85, IS THE CORRECT RATE OF RETIRED PAY TO WHICH HE WAS ENTITLED AND YOU STATE THAT HE WAS PAID AT THAT RATE FOR ALL PERIODS DURING WHICH HIS PAY WAS COMPUTED UNDER THE 1949 ACT. IT WILL BE SEEN, THEREFORE, THAT THE RETIRED PAY HE RECEIVED WAS BASED ON 30 YEARS' LONGEVITY CREDIT. ALTHOUGH HE HAD 32 YEARS OF SERVICE, NO INCREASE IS PROVIDED FOR SERVICE IN EXCESS OF 30 YEARS.

FOR THE SUBSEQUENT PERIODS GOVERNED BY THE PAY ACTS OF 1952 AND 1955, YOU SHOW THAT LIEUTENANT PERALTA WAS PAID RETIRED PAY AT THE MONTHLY RATES OF $272.32 AND $310.05 RESPECTIVELY, WHICH ARE THE CORRECT RATES COMPUTED AT 75 PERCENT (THE MAXIMUM PERCENTAGE) OF THE RATE OF ACTIVE DUTY PAY FOR A FIRST LIEUTENANT CREDITED WITH OVER 30 YEARS OF SERVICE (THE MAXIMUM LONGEVITY CREDIT). THE OFFICIAL RECORD SHOWS THAT BEGINNING JUNE 1, 1958, HE WAS PAID RETIRED PAY AT THE RATE OF $328.65 PER MONTH, REPRESENTING AN INCREASE OF 6 PERCENT OVER THE PREVIOUS RATE OF $310.05, AS PROVIDED BY THE 1958 PAY LAW.