B-136877, SEP 9, 1958

B-136877, SEP 9, 1958

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL N.P. HANNA, F.C. DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 7, 1958, WITH ENCLOSURES, FORWARDED HERE BY INDORSEMENT DATED JULY 21, 1958, OF THE OFFICE OF THE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO COLONEL WILLIAM L. KELLER, UNITED STATES ARMY, RETIRED, ON A VOUCHER IN THE AMOUNT OF $173.80, REPRESENTING ADJUSTMENT OF PAYMENT OF RETIRED PAY BASED ON ACTIVE-DUTY PAY AND ALLOWANCES OF A COLONEL WITH DEPENDENT FOR THE MONTH OF JUNE 1958. YOUR REQUEST HAS BEEN ALLOCATED D.O. NO. 359 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT COLONEL KELLER WAS PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 31, 1935, ON THE BASIS OF HIS OWN APPLICATION UNDER THE PROVISIONS OF SECTION 1243, REVISED STATUTES AND PUBLIC LAW NO. 61, 74TH CONGRESS, APPROVED MAY 15, 1935, 49 STAT. 247. THIS LATTER ACT PROVIDES AS FOLLOWS:

"THAT IN RECOGNITION OF THE OUTSTANDING SERVICE AND CONTRIBUTION MADE TO THE SCIENCE OF MEDICINE AND SURGERY BY COLONEL WILLIAM L. KELLER, MEDICAL CORPS, UNITED STATES ARMY, AND TO PROVIDE THAT HIS MATURE PROFESSIONAL JUDGMENT AND LONG EXPERIENCE MAY CONTINUE TO REMAIN AVAILABLE TO THE PUBLIC SERVICE, THE PRESIDENT IS HEREBY AUTHORIZED TO DESIGNATE THE SAID COLONEL WILLIAM L. KELLER, UPON HIS RETIREMENT FROM THE ACTIVE LIST, AS CONSULTANT IN SURGERY AT THE UNITED STATES ARMY MEDICAL CENTER (WALTER REED HOSPITAL), WASHINGTON, DISTRICT OF COLUMBIA: PROVIDED, THAT SUCH DESIGNATION SHALL BE SUBJECT TO THE SAID COLONEL WILLIAM L. KELLER'S ACCEPTANCE AND TERMINABLE AT HIS PLEASURE; AND IT IS FURTHER PROVIDED THAT HE SHALL BE ENTITLED TO THE FULL ACTIVE DUTY PAY AND ALLOWANCES OF THE GRADE HELD BY HIM AT THE TIME OF HIS RETIREMENT."

IT ALSO APPEARS THAT COLONEL KELLER ACCEPTED THE APPOINTMENT AS CONSULTANT IN SURGERY; HAS BEEN PAID FULL ACTIVE-DUTY PAY AND ALLOWANCES OF A COLONEL, WITH DEPENDENTS, FOR THE PERIOD NOVEMBER 1, 1935, THROUGH MAY 31, 1958, UNDER THE SEVERAL PAY ACTS EFFECTIVE DURING THAT PERIOD; AND THAT HIS APPOINTMENT HAS NOT BEEN TERMINATED TO DATE, ALTHOUGH HE IS PRESENTLY INCAPACITATED TO PERFORM SERVICES.

YOUR QUESTION ARISES BY REASON OF THE MILITARY PAY ACT OF 1958, APPROVED MAY 20, 1958, EFFECTIVE JUNE 1, 1958, 72 STAT. 122. SECTION 3(A) OF THIS ACT PROVIDES THAT -

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXCEPT SECTIONS 4 AND 7 OF THIS ACT *** THE CHANGES IN RATES OF BASIC PAY MADE BY THIS ACT DO NOT INCREASE THE AMOUNT OF RETIRED PAY *** TO WHICH ANY PERSON IS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT."

SECTION 4(A) PROVIDES THAT -

"EXCEPT FOR MEMBERS COVERED BY SECTION 7 OF THIS ACT *** MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RETIRED PAY *** ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT, SHALL BE ENTITLED TO AN INCREASE OF 6 PER CENTUM OF THAT PAY TO WHICH THEY WERE ENTITLED ON THAT DATE."

SECTION 7 IS NOT PERTINENT TO THE PRESENT MATTER.

IN VIEW OF THE ABOVE, YOU EXPRESS DOUBT WHETHER COLONEL KELLER'S RETIRED PAY SHOULD BE ADJUSTED TO CONFORM TO THE ACTIVE-DUTY PAY RATES AND ALLOWANCES PROVIDED BY THE 1958 PAY ACT; WHETHER HE IS ENTITLED TO A 6 PER CENTUM PAY INCREASE ADDED TO THE RATE IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE 1958 PAY ACT; OR WHETHER PAYMENTS OF RETIRED PAY ARE SUBJECT TO REDUCTION TO 75 PERCENT OF THE ACTIVE-DUTY PAY OF A COLONEL EXCLUDING ALLOWANCES RETROACTIVE TO THE LAST DATE ON WHICH COLONEL KELLER RENDERED SERVICES AS A CONSULTANT IN SURGERY TO WALTER REED ARMY HOSPITAL.

THE ACT OF MAY 12, 1935, IS NOT A RETIREMENT STATUTE, BUT LEGISLATION PROVIDING A SPECIAL OFFICE TO WHICH COLONEL KELLER COULD BE APPOINTED AND, UPON HIS ACCEPTANCE, TERMINABLE ONLY AT HIS PLEASURE. THE LEGISLATION ALSO PROVIDES THE MANNER IN WHICH THE PAY OF THE OFFICE IS TO BE DETERMINED, THAT IS, THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE GRADE HELD BY COLONEL KELLER. IN A SENSE, THE PAY IS NOT RETIRED PAY BUT COMPENSATION FOR THE DUTIES PERFORMED AS CONSULTANT IN SURGERY. THIS VIEW IS SUPPORTED BY THE STATEMENT IN SENATE REPORT NO. 333, 74TH CONGRESS, 1ST SESSION, THAT -

"*** THIS BILL DOES NOT SEEK TO CONTINUE COLONEL KELLER ON THE ACTIVE LIST, BUT IT SEEKS TO PLACE HIM IN AN OFFICE NOT NOW EXISTENT UNDER THE WAR DEPARTMENT, WITH THE ACTIVE-DUTY PAY AND ALLOWANCES OF THE GRADE HELD BY HIM AT THE TIME OF HIS RETIREMENT."

THERE APPEARS NO INTENT TO RESTRICT THE PAY TO THE RATES IN EFFECT IN 1935.

ACCORDINGLY, SINCE THE APPOINTMENT IS TERMINABLE ONLY AT COLONEL KELLER'S PLEASURE, AND IS NOT DEPENDENT UPON HIS PHYSICAL ABILITY TO PERFORM SURGERY, IT IS CONSIDERED THAT HE IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES AT THE RATES PROVIDED IN THE ACT OF MAY 20, 1958.

THE VOUCHER FORWARDED WITH YOUR LETTER IS RETURNED AND MAY BE PAID.