B-139748, JUL. 29, 1959

B-139748, JUL. 29, 1959

TO MAJOR BERNARD J. HUSSEY, AUS, RETIRED:

UPON THE RECEIPT OF YOUR LETTER DATED MAY 25, 1959, STATING THAT OUR DECISION OF DECEMBER 19, 1956, B-129742,"OVERRULES THE COMPLETE FINDINGS OF THE ARMY PHYSICAL RETIRING BOARD OF 30 JUNE 1951" IN YOUR CASE AND ALSO INDICATING THAT THE SAME DECISION HELD YOUR"RETIREMENT FOR PERMANENT PHYSICAL DISABILITY OF 30 JUNE 1951, AFTER 25 YEARS SERVICE, WAS ILLEGAL" THERE WAS REQUESTED A FULL AND COMPLETE REPORT CONCERNING YOUR MILITARY RETIRED PAY STATUS.

THE INFORMATION RECEIVED ON YOUR CASE MAY BE SUMMARIZED AS FOLLOWS:

(1) EFFECTIVE JULY 18, 1950, YOU WERE RELEASED FROM ASSIGNMENT AND ACTIVE DUTY AS MAJOR, AUS (PARAGRAPH 163, SPECIAL ORDERS NO. 198, HEADQUARTERS, CAMP STONEMAN, CALIFORNIA, DATED JULY 17, 1950). ON JULY 19, 1950, YOU MADE APPLICATION FOR RETIREMENT AS AN ENLISTED MAN WITH OVER 20 YEARS' ACTIVE SERVICE, UNDER AUTHORITY OF SECTION 4, ACT OF OCTOBER 6, 1945, 59 STAT. 539, AS AMENDED BY SECTION 6 (A) OF THE ACT APPROVED AUGUST 10, 1946, 60 STAT. 995, 996.

(2) YOUR APPLICATION WAS APPROVED AND IN PARAGRAPH 78, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 197, DATED OCTOBER 10, 1950, YOU WERE DIRECTED TO BE PLACED ON THE RETIRED LIST IN THE ENLISTED GRADE OF MASTER SERGEANT AND TRANSFERRED TO THE ENLISTED RESERVE CORPS, BOTH EFFECTIVE OCTOBER 31, 1950. PARAGRAPH 76 FURTHER PLACED YOU ON ACTIVE DUTY EFFECTIVE NOVEMBER 1, 1950, IN YOUR ENLISTED RESERVE CORPS GRADE AND STATUS FOR A PERIOD OF 21 MONTHS.

(3) A MESSAGE DATED NOVEMBER 3, 1950, WAS SENT BY THE COMMANDING OFFICER, CAMP STONEMAN, CALIFORNIA, REQUESTING THAT YOUR RETIREMENT ORDERS BE REVOKED AND IN PARAGRAPH 75, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 216, DATED NOVEMBER 6, 1950, IT WAS ATTEMPTED TO REVOKE THE PERTINENT PROVISIONS OF PARAGRAPH 78, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 197, OCTOBER 10, 1950, INSOFAR AS APPLICABLE TO YOU.

(4) PARAGRAPH 76 OF DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 118, DATED JUNE 15, 1951, DIRECTED YOUR RETIREMENT IN THE GRADE OF MAJOR, AUS, EFFECTIVE JUNE 30, 1951, BY REASON OF PHYSICAL DISABILITY (SHOWN AS 20 PERCENTUM) PURSUANT TO THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949. PARAGRAPH 65 FURTHER DIRECTED AN HONORABLE DISCHARGE FROM YOUR ENLISTED GRADE OF MASTER SERGEANT, EFFECTIVE JUNE 30, 1951.

(5) THE RECORD INDICATES THAT YOU WERE HONORABLY DISCHARGED AS MASTERSERGEANT EFFECTIVE JUNE 30, 1951, AND THAT EFFECTIVE FROM JULY 1, 1951, YOU RECEIVED RETIRED PAY COMPUTED AT THE RATE OF 62 1/2 PERCENT (REPRESENTING THE TOTAL OF YOUR ACTIVE SERVICE TO JUNE 30, 1951, 24 YEARS, 10 MONTHS AND 7 DAYS, EQUALS 25, TIMES 2 1/2 PERCENT) OF THE ACTIVE-DUTY PAY OF A MAJOR WITH OVER 22, BUT NOT OVER 26, CUMULATIVE YEARS OF SERVICE.

THE LEGALITY OF THE DEPARTMENT OF THE ARMY ACTION TAKEN IN YOUR CASE IN PLACING YOU ON THE DISABILITY RETIRED LIST, PURPORTEDLY UNDER AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818 AND 823, RESPECTIVELY, IS GOVERNED NECESSARILY BY YOUR MILITARY STATUS ON JUNE 30, 1951. ON THAT DATE YOU WERE SERVING ON ACTIVE DUTY IN YOUR ENLISTED RESERVE CORPS GRADE AND STATUS AS A RETIRED ENLISTED MAN. SINCE YOU WERE ALREADY IN A RETIRED STATUS ON JUNE 30, 1951, THE PROVISIONS OF SECTION 402 (F) OF THE 1949 LAW, 63 STAT. 820, DO NOT APPLY TO YOUR CASE. ALSO, SINCE THE PERCENTAGE OF YOUR DISABILITY RATING IS LESS THAN 30 PERCENT, YOUR STATUS ON JUNE 30, 1951, DID NOT FULFILL THE REQUIREMENTS PRESCRIBED IN THE LAST PROVISO CONTAINED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND IT IS NOT SHOWN THAT YOU INCURRED THAT DISABILITY WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT. ACCORDINGLY, ON THE FACTS OF RECORD, NO STATUTORY BASIS IS PERCEIVED IN SUPPORT OF THE DEPARTMENT OF THE ARMY ACTION WHICH DIRECTED THAT YOU BE PLACED ON THE DISABILITY RETIRED LIST EFFECTIVE JUNE 30, 1951.

THUS, UPON A SUBSEQUENT REVIEW OF YOUR MILITARY RECORDS BY THE DEPARTMENT OF THE ARMY (DISCLOSING THE FACTS RELATED ABOVE), IT WAS DETERMINED THAT THE PROVISIONS OF PARAGRAPH 65, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 118, DATED JUNE 15, 1951, ATTEMPTING TO PLACE YOU IN AN OFFICER GRADE ON THE DISABILITY RETIRED LIST EFFECTIVE JUNE 30, 1951, WERE LEGALLY INEFFECTIVE, SINCE YOUR RETIREMENT AS AN ENLISTED MEMBER PURSUANT TO THE PROVISIONS OF SECTION 4, ACT OF OCTOBER 6, 1945, AS AMENDED, HAD PREVIOUSLY BECOME EFFECTIVE ON NOVEMBER 1, 1950. COPIES OF THE CORRESPONDENCE ON YOUR CASE FURNISHED TO US BY THE DEPARTMENT OF THE ARMY, DISCLOSES THAT REFERENCE WAS MADE THEREIN TO OUR DECISION OF DECEMBER 19, 1956, B-129742. THAT DECISION RELATES EXCLUSIVELY TO THE MEASURE OF REIMBURSEMENT AUTHORIZED FOR TRAVEL OF DEPENDENTS UPON RETIREMENT, AND, THEREFORE, HAS NO DIRECT CONNECTION WITH YOUR MILITARY RETIRED PAY STATUS.

THAT DECISION, HOWEVER, CORRECTLY ILLUSTRATES AND APPLIES THE GENERAL RULE THAT VALID RETIREMENT ORDERS ISSUED BY COMPETENT AUTHORITY MAY NOT BE REVOKED AFTER THE EFFECTIVE DATE OF RETIREMENT. IN THIS CONNECTION, SEE THE ENCLOSED COPY OF DECISION DATED JULY 15, 1957, B-131674 (37 COMP. GEN. 19), TO THE SECRETARY OF THE ARMY, WHEREIN THE RULE IS STATED AS FOLLOWS:

"* * * ONCE THE RETIREMENT HAS BECOME EFFECTIVE, ANY ACTION TAKEN TO CANCEL THE RETIREMENT OR TO REVOKE THE ORDER RETIRING THE MEMBER IN ORDER TO PERMIT RETIREMENT UNDER ANOTHER PROVISION OF LAW WOULD BE LEGALLY INEFFECTIVE.'

ALSO, IT WAS FURTHER POINTED OUT IN THE DECISION OF JULY 15, 1957, THAT:

"ONLY "SUBSTANTIAL NEW EVIDENCE" RELATING DIRECTLY TO THE CONDITIONS OF ENTITLEMENT TO THE NONDISABILITY RETIREMENT OR THE INVALIDITY OF THE RETIREMENT ORDER DUE TO WANT OF AUTHORITY IN THE OFFICER ISSUING IT COULD CONSTITUTE A BASIS FOR REVOKING THE RETIREMENT ORDER IF ENTITLEMENT TO SUCH RETIREMENT DID NOT IN FACT EXIST OR THE RETIREMENT ORDER WAS NOT ISSUED BY ONE HAVING AUTHORITY TO DO SO.'

THE FACTS OF YOUR CASE CLEARLY BROUGHT YOUR RETIRED-PAY STATUS WITHIN THE RULE REFLECTED IN THE DECISIONS OF DECEMBER 19, 1956, AND JULY 15, 1957, ABOVE REFERRED TO. THERE APPARENTLY WAS NO INVALIDITY IN THE RETIREMENT ORDERS OF OCTOBER 10, 1950, AND HENCE, YOUR RETIREMENT AS AN ENLISTED MEMBER BECAME EFFECTIVE ON NOVEMBER 1, 1950. SINCE THE ATTEMPT TO REVOKE THOSE ORDERS WAS INEFFECTIVE, THE PROVISIONS OF DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 118, DATED JUNE 15, 1951, DIRECTING YOUR RETIREMENT IN THE COMMISSIONED GRADE OF MAJOR, AUS, EFFECTIVE JUNE 30, 1951, BY REASON OF PHYSICAL DISABILITY WERE ALSO LEGALLY INEFFECTIVE. CONSEQUENTLY, YOU HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM JULY 1, 1951, COMPUTED AT THE RATE OF 62 1/2 PERCENT OF THE ACTIVE-DUTY PAY OF AN ENLISTED MEMBER IN PAY GRADE E-7, WITH OVER 22, BUT NOT OVER 26, CUMULATIVE YEARS OF SERVICE.

THE RECORD INDICATES THAT ON AUGUST 23, 1956, YOU COMPLETED A TOTAL OF 30 YEARS OF SERVICE (ALL PRIOR ACTIVE SERVICE, PLUS YOUR INACTIVE SERVICE ON THE RETIRED LIST) AND THAT PURSUANT TO THE PROVISIONS OF 10 U.S.C. 3964, 70A STAT. 231, AS AMENDED, YOU WERE ADVANCED (DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 69, DATED APRIL 8, 1959) TO THE COMMISSIONED GRADE OF MAJOR ON THE RETIRED LIST, EFFECTIVE AUGUST 24, 1956. ACCORDINGLY, THE RECORD ESTABLISHES THAT YOU HAVE BEEN OVERPAID THE DIFFERENCE (AMOUNTING TO $9,061.60) BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF ENLISTED GRADE E-7, AND THAT COMPUTED ON THE BASIS OF THE COMMISSIONED GRADE OF MAJOR, FOR THE PERIOD JULY 1, 1951, TO AUGUST 23, 1956, INCLUSIVE. THE RECORD ALSO INDICATES THAT PURSUANT TO THE AUTHORITY PRESCRIBED IN THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C. 46D (1952 ED.SUPP. II) MONTHLY DEDUCTIONS ARE BEING MADE IN YOUR CURRENT RETIRED PAY BY THE DEPARTMENT OF THE ARMY TO EFFECT COLLECTION OF THE OVERPAYMENTS MADE TO YOU.

IN THE CIRCUMSTANCES ABOVE STATED, IT WOULD APPEAR THAT YOUR MOST EFFECTIVE REMEDY IN THE MATTER MAY BE TO REQUEST THE ARMY BOARD FOR THE COLLECTION OF MILITARY RECORDS TO MAKE AN APPROPRIATE CORRECTION IN YOUR MILITARY RECORDS.