B-140388, SEPTEMBER 23, 1959, 39 COMP. GEN. 213

B-140388: Sep 23, 1959

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THE DAY FOLLOWING WAS AGAIN PLACED ON A TEMPORARY DISABILITY RETIRED LIST MAY HAVE THE SECOND TEMPORARY DISABILITY RETIRED LIST PERIOD REGARDED AS HAVING RESULTED FROM THE REENLISTMENT RATHER THAN AS A CONTINUATION OF THE PRECEDING FIVE-YEAR TEMPORARY DISABILITY PERIOD. THERE BEING A PERIOD OF ONE DAY WHEN THE MEMBER WAS NOT ON THE TEMPORARY DISABILITY LIST. THE INCLUSION OF THE FIVE-YEAR PERIOD OF INACTIVE SERVICE IN COMPUTATION OF THE AMOUNT OF DISABILITY RETIRED PAY UPON PERMANENT RETIREMENT WILL NOT RESULT IN AN INCREASE IN DISABILITY RETIRED PAY SO AS TO COME WITHIN THE PROHIBITION IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949. THE PROPOSED ADJUSTMENT OF RETIRED PAY IS BASED ON THE CORRECTIONS MADE IN CORPORAL CARLSON'S MILITARY RECORDS UNDER AUTHORITY OF THE PROVISIONS OF 10 U.S.C. 1552.

B-140388, SEPTEMBER 23, 1959, 39 COMP. GEN. 213

MILITARY PERSONNEL - RETIRED PAY - INACTIVE TIME ON RETIRED LIST - RETIRED PAY INCREASE AN ARMY ENLISTED MEMBER WHO, DUE TO BEING CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST LONGER THAN THE FIVE-YEAR PERIOD PRESCRIBED IN 10 U.S.C. 1210 (H), HAD HIS MILITARY RECORDS CORRECTED TO SHOW THAT HIS TEMPORARY DISABILITY RETIRED LIST STATUS EXPIRED AT THE END OF FIVE YEARS, THAT HE SUBSEQUENTLY REENLISTED EFFECTIVE THE NEXT DAY, AND THE DAY FOLLOWING WAS AGAIN PLACED ON A TEMPORARY DISABILITY RETIRED LIST MAY HAVE THE SECOND TEMPORARY DISABILITY RETIRED LIST PERIOD REGARDED AS HAVING RESULTED FROM THE REENLISTMENT RATHER THAN AS A CONTINUATION OF THE PRECEDING FIVE-YEAR TEMPORARY DISABILITY PERIOD, THERE BEING A PERIOD OF ONE DAY WHEN THE MEMBER WAS NOT ON THE TEMPORARY DISABILITY LIST, THE INCLUSION OF THE FIVE-YEAR PERIOD OF INACTIVE SERVICE IN COMPUTATION OF THE AMOUNT OF DISABILITY RETIRED PAY UPON PERMANENT RETIREMENT WILL NOT RESULT IN AN INCREASE IN DISABILITY RETIRED PAY SO AS TO COME WITHIN THE PROHIBITION IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A) AND (B).

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, SEPTEMBER 23, 1959:

YOUR LETTER OF JULY 23, 1959, FORWARDED BY THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY (UNDER D.O. NO. 444, ALLOCATED BY DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTS AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT ON A VOUCHER (ENCLOSURE (1) TO YOUR LETTER) STATED IN FAVOR OF CORPORAL HERBERT C. CARLSON, JR., IN THE AMOUNT OF $86.45, REPRESENTING ADDITIONAL RETIRED PAY FOR THE PERIOD FROM MAY 1, 1958, TO JUNE 30, 1959, INCLUSIVE. THE PROPOSED ADJUSTMENT OF RETIRED PAY IS BASED ON THE CORRECTIONS MADE IN CORPORAL CARLSON'S MILITARY RECORDS UNDER AUTHORITY OF THE PROVISIONS OF 10 U.S.C. 1552, AS SET FORTH BELOW.

IT APPEARS THAT CORPORAL CARLSON, A MEMBER OF THE REGULAR ARMY, WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 31, 1952, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272 (A), WITH A TEMPORARY DISABILITY RATING OF 50 PERCENT, HAVING THEN COMPLETED A TOTAL OF FOUR YEARS, SIX MONTHS AND NINE DAYS OF ACTUAL ACTIVE SERVICE. SUCH ACTION ENTITLED HIM, UNDER SECTION 402 (D) OF THE 1949 LAW, 37 U.S.C. 272 (D), TO RECEIVE RETIRED PAY FOR THE PERIOD DURING WHICH HIS NAME WAS AUTHORIZED TO BE CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST (BUT IN NO EVENT TO EXCEED A PERIOD OF FIVE YEARS FROM MARCH 31, 1952) COMPUTED AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF ENLISTED PAY GRADE E-4, WITH OVER FOUR BUT NOT OVER SIX CUMULATIVE YEARS OF CREDITABLE SERVICE. REMAINED ON THE TEMPORARY DISABILITY RETIRED LIST AND WAS PAID DISABILITY RETIRED PAY AT THE 50 PERCENT RATE UNTIL APRIL 30, 1958, WHEN HE WAS REMOVED FROM THAT LIST AND PERMANENTLY RETIRED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1201, 70A STAT. 91 (SEE 10 U.S.C. 1210 (C), 70A STAT. 95) WITH A 30 PERCENT DISABILITY RATING ENTITLING HIM TO RECEIVE RETIRED PAY EFFECTIVE FROM MAY 1, 1958, COMPUTED AT THE RATE OF 30 PERCENT OF THE BASIC PAY OF ENLISTED PAY GRADE E-4, WITH OVER FOUR BUT NOT OVER SIX CUMULATIVE YEARS OF CREDITABLE SERVICE ($47.97 PER MONTH). EFFECTIVE JUNE 1, 1958, THE RATE OF HIS RETIRED PAY WAS INCREASED BY SIX PERCENT TO $50.85 PER MONTH. (SECTION 4 (A), ACT OF MAY 20, 1958, 72 STAT. 128), 10 U.S.C. 1401 NOTE.

THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS, UPON CONSIDERING THE MATTER PURSUANT TO THE SOLDIER'S APPLICATION, CONCLUDED THAT THE FAILURE OF THE DEPARTMENT OF THE ARMY TO RESOLVE HIS TEMPORARY DISABILITY RETIRED STATUS WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 402 (D) OF THE 1949 LAW (SEE, ALSO, 10 U.S.C. 1210 (H), 70A STAT. 96) WAS IN ERROR AND UNJUST AND THAT RECOUPMENT OF THE AMOUNT OF RETIRED PAY IMPROPERLY PAID TO CORPORAL CARLSON DURING THE PERIOD APRIL 1, 1957, TO APRIL 30, 1958, INCLUSIVE, AT THE RATE OF $79.95 PER MONTH WOULD CONSTITUTE AN INJUSTICE. THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS WERE APPROVED AND IN A MEMORANDUM DATED NOVEMBER 6, 1958, THE UNDER SECRETARY OF THE ARMY DIRECTED:

THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF HERBERT C. CARLSON, JR., BE CORRECTED TO HOW:

A. THAT HAVING BEEN FOUND FIT FOR MILITARY DUTY, HIS NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ON 30 MARCH 1957:

B. THAT HE ENLISTED IN THE REGULAR ARMY ON 31 MARCH 1957 FOR A PERIOD OF 3 YEARS;

C. THAT ON 31 MARCH 1957, HAVING BEEN DETERMINED TO BE UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY, 50 PERCENT DISABLING, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF CORPORAL E-4, WITH RETIREMENT PAY EFFECTIVE 1 APRIL 1957; AND

D. THAT FOLLOWING FURTHER PHYSICAL EVALUATION HE WAS FOUND PERMANENTLY UNFIT FOR DUTY AND WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND PERMANENTLY RETIRED FOR DISABILITY IN THE GRADE OF CORPORAL E-4, 30 PERCENT DISABLED, EFFECTIVE 30 APRIL 1958, UNDER THE PROVISIONS OF TITLE 10, U.S.C. SECTION 1201.

IT APPEARS THAT CORPORAL CARLSON'S RETIRED PAY EFFECTIVE FROM MAY 1, 1958, HAS BEEN COMPUTED AT THE RATE OF 30 PERCENT (PERCENTAGE OF HIS DISABILITY) OF THE BASIC PAY OF ENLISTED PAY GRADE E-4, WITH OVER FOUR BUT NOT OVER SIX CUMULATIVE YEARS OF CREDITABLE SERVICE BASED ON THE TEMPORARY DISABILITY RETIRED LIST. THE PROPOSED ADJUSTMENT IN HIS RETIRED PAY COVERING THE PERIOD MAY 1, 1958, TO JUNE 30, 1959, INCLUSIVE, RAISES THE QUESTION WHETHER AS A RESULT OF THE CORRECTIONS WHICH HAVE BEEN MADE IN HIS MILITARY RECORDS THE PERIOD OF HIS INACTIVE SERVICE ON THE TEMPORARY DISABILITY RETIRED LIST FROM MARCH 31, 1952, TO MARCH 30, 1957, INCLUSIVE, FIVE FULL YEARS, SHOULD BE ADDED TO HIS ACTUAL ACTIVE SERVICE, THEREBY ENTITLING HIM TO RECEIVE RETIRED PAY EFFECTIVE FROM MAY 1, 1958, COMPUTED ON THE BASIS OF ENLISTED PAY GRADE E-4, WITH OVER EIGHT BUT NOT OVER TEN CUMULATIVE YEARS OF CREDITABLE SERVICE.

THE CORRECTIONS MADE IN CORPORAL CARLSON'S MILITARY RECORDS TERMINATED HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST AS OF MARCH 30, 1957, THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD THAT HIS NAME WAS AUTHORIZED TO BE CARRIED ON THAT LIST (10 U.S.C. 1210 (B) ( AND HAVING BEEN FOUND FIT FOR ACTIVE DUTY (SECTION 1210 (F) (, IT IS REQUIRED THAT HE BE VIEWED AS HAVING REENLISTED IN THE REGULAR ARMY (SECTION 1211 (A) (3) (, 10 U.S.C. 1211 (A) (3), EFFECTIVE AS OF MARCH 31, 1957. HIS MILITARY RECORDS, AS CORRECTED, NOW SHOW THAT FOLLOWING THIS NEW ENLISTMENT ON MARCH 31, 1957, HE WAS AGAIN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AS OF APRIL 1, 1957, REMOVED FROM THAT LIST AND PERMANENTLY RETIRED FOR DISABILITY IN THE GRADE OF CORPORAL E-4, WITH A 30 PERCENT DISABILITY, EFFECTIVE APRIL 30, 1958. THUS, THE PERIOD THAT CLAIMANT'S NAME WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST FROM APRIL 1, 1957, TO APRIL 30, 1958, INCLUSIVE, AROSE SOLELY AS AN INCIDENT TO HIS MILITARY SERVICE UNDER HIS REENLISTMENT OF MARCH 31, 1957, AND WAS, THEREFORE, ENTIRELY SEPARATE AND DISTINCT FROM AND NOT A CONTINUATION OF THE FIVE- YEAR PERIOD HIS NAME WAS ON THAT LIST FROM MARCH 31, 1952, TO MARCH 30, 1957, INCLUSIVE, UNDER THE PRECEDING ENLISTMENT PERIOD.

SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 233 (A), PRESCRIBES THE SERVICE CREDITABLE IN THE COMPUTATION OF MONTHLY BASIC PAY SUBJECT TO THE PROVISIONS OF SUBSECTIONS (B), (C), AND (D) OF THAT SECTION. THE PROVISIONS OF SUBSECTION AND (D) ARE NOT PERTINENT TO THE INSTANT MATTER. UNDER SUBSECTION (B) MEMBERS OF THE UNIFORMED SERVICES "ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST, HONORARY RETIRED LIST, OR A RETIRED LIST OF ANY OF THE UNIFORMED SERVICES, OR WHILE AUTHORIZED TO RECEIVE RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, FROM ANY OF THE UNIFORMED SERVICES OR FROM THE VETERANS ADMINISTRATION, OR WHILE A MEMBER OF THE HONORARY RESERVE OF THE OFFICERS' RESERVE CORPS OR ORGANIZED RESERVE CORPS.' SECTION 202 (B), 37 U.S.C. 233 (B), FURTHER PROVIDES THAT EXCEPT FOR ACTIVE SERVICE AS PRESCRIBED IN SECTION 202 (A) (1), 37 U.S.C. 233 (A) (1),"THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.'

IN OUR DECISION OF NOVEMBER 28, 1956, 36 COMP. GEN. 431, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MEMBER OF THE AIR FORCE WHOSE NAME WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST DURING THE PERIOD FROM JANUARY 1, 1952, TO NOVEMBER 30, 1953, WHEN HE WAS DISCHARGED FROM THE SERVICE BY REASON OF PHYSICAL DISABILITY AND PAID SEVERANCE PAY AS PRESCRIBED IN SECTION 403 OF THE 1949 ACT, 63 STAT. 820, 37 U.S.C. 273. HE HAD NO MILITARY STATUS DURING THE PERIOD DECEMBER 1, 1953, TO JUNE 14, 1955. ON JUNE 15, 1955, HE REENLISTED IN THE AIR FORCE AND ON JULY 31, 1956, HIS NAME WAS AGAIN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. IT WAS HELD IN THE DECISION OF NOVEMBER 28, 1956, THAT:

THE TIME PREVIOUSLY SPENT ON THE TEMPORARY DISABILITY RETIRED LIST ALSO MAY BE INCLUDED WITH HIS ACTIVE SERVICE IN COMPUTING SUCH RETIRED PAY (EFFECTIVE FROM AUGUST 1, 1956) SINCE SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B), AUTHORIZES THE ACCRUAL OF ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES FOR PERIODS WHILE ON SUCH LIST.

IN REACHING THAT CONCLUSION, IT WAS POINTED OUT THAT WHILE THE PROVISO IN SECTION 202 (B) "DOES NOT PERMIT THE USE OF SUCH INACTIVE SERVICE CREDIT TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, (OR) IN A RETIRED STATUS--- WITH AN EXCEPTION WHICH DOES NOT APPEAR TO BE MATERIAL HERE--- THAT PROVISION IS BELIEVED TO REFER TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY.' HENCE, ON THE BASIS OF THE FACTS IN THAT CASE IT WAS HELD THAT "THE COUNTING OF TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST DURING THAT INTERVAL ( JANUARY 1, 1952, TO NOVEMBER 30, 1953), IN COMPUTING THE AMOUNT OF RETIRED PAY DUE HIM AT THE PRESENT TIME (EFFECTIVE AUGUST 1, 1956), WILL NOT RESULT IN ANY "INCREASE" IN RETIRED PAY "WHILE ON" A RETIRED LIST OR TEMPORARY DISABILITY RETIRED LIST, WITHIN THE MEANING OF SECTION 202 (B) OF THE CAREER COMPENSATION ACT.'

IN THE INSTANT CASE AND AS PREVIOUSLY POINTED OUT, THE PERIOD THAT THE CLAIMANT'S NAME WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST FROM APRIL 1, 1957, TO APRIL 30, 1958, INCLUSIVE, AROSE SOLELY AS AN INCIDENT OF HIS REENLISTMENT ON MARCH 31, 1957, AND WAS NOT A CONTINUATION OF THE PRECEDING PERIOD OF FIVE YEARS THAT HE ALREADY HAD SPENT ON THE TEMPORARY DISABILITY RETIRED LIST FROM MARCH 31, 1952, TO MARCH 30, 1957, INCLUSIVE. THERE BEING A PERIOD OF TIME WHEN HIS NAME WAS NOT CARRIED ON SUCH LIST, THE INCLUSION OF THE FIVE-YEAR PERIOD PRECEDING MARCH 31, 1957, IN DETERMINING THE AMOUNT OF DISABILITY RETIRED PAY WHICH BECAME DUE HIM INCIDENT TO HIS REMOVAL ON APRIL 30, 1958, FROM THE TEMPORARY DISABILITY RETIRED LIST IN CONNECTION WITH HIS PERMANENT RETIREMENT, WITH 30 PERCENT PHYSICAL DISABILITY, EFFECTIVE MAY 1, 1958, WILL NOT RESULT IN AN ,INCREASE" IN HIS DISABILITY RETIRED PAY WHILE "ON A TEMPORARY DISABILITY RETIRED LIST" WITHIN THE MEANING OF SECTION 202 (B) OF THE 1949 LAW.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED AND PAYMENT THEREON IS AUTHORIZED, IF OTHERWISE CORRECT.