B-142248, APR. 15, 1960

B-142248, APR. 15, 1960

TO CAPTAIN HENRY A. STOKES, AUS (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1960, AND ENCLOSURE, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949, BASED ON THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, WHICH WAS DISALLOWED BY OFFICE LETTER DATED OCTOBER 22, 1959. YOU STATE, IN EFFECT, THAT SINCE THE DEPARTMENT OF THE ARMY RETROACTIVELY HAS DETERMINED THAT YOU WERE ELIGIBLE FOR RETIREMENT PAY BENEFITS AS A CAPTAIN EFFECTIVE FROM AUGUST 29, 1944, BY REASON OF PHYSICAL DISABILITY, IT IS YOUR UNDERSTANDING THAT SECTION 15 OF THE 1942 LAW IS APPLICABLE IN YOUR CASE, AUTHORIZING COMPUTATION OF YOUR RETIRED PAY AT THE RATE OF 75 PERCENT INSTEAD OF THE 67 1/2 PERCENT YOU ARE NOW RECEIVING.

YOUR MILITARY HISTORY SHOWS THAT YOU PERFORMED ACTIVE ENLISTED SERVICE FROM APRIL 12, 1917, TO JUNE 26, 1920; FROM JULY 19, 1920, TO NOVEMBER 3, 1940; AND FROM AUGUST 29, 1944, TO NOVEMBER 30, 1944; AND ACTIVE COMMISSIONED SERVICE FROM NOVEMBER 4, 1940, TO AUGUST 28, 1944.

THE RECORD SHOWS FURTHER THAT YOU WERE RETIRED NOVEMBER 30, 1944, IN THE GRADE OF TECHNICAL SERGEANT, BY REASON OF DISABILITY, WITH OVER 27 YEARS OF SERVICE, UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1941. YOU WERE ADVANCED TO THE GRADE OF CAPTAIN JUNE 29, 1948, PURSUANT TO THE PROVISIONS OF PUBLIC LAW 810, 80TH CONGRESS. RETIRED PAY WAS ADJUSTED ACCORDINGLY UNDER THE LAWS IN EFFECT PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949.

PURSUANT TO EXECUTIVE ORDER NO. 10122, DATED APRIL 14, 1950, YOU WERE, ON AUGUST 20, 1958, DETERMINED TO BE ELIGIBLE FOR RETIREMENT PAY BENEFITS EFFECTIVE AUGUST 29, 1944, BY REASON OF PHYSICAL DISABILITY, IN THE GRADE OF CAPTAIN, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 555, AND YOUR RECORDS WERE ADMINISTRATIVELY CORRECTED.

PAYMENTS BASED ON SUCH CORRECTION ARE REQUIRED TO BE MADE IN THE AMOUNTS DETERMINED TO BE DUE BY APPLYING PERTINENT LAWS AND REGULATIONS TO ALL THE MATERIAL FACTS SHOWN BY THE RECORDS AS SO CORRECTED, AND, THE RETROACTIVE DETERMINATION AS TO YOUR PHYSICAL DISABILITY AT THE TIME OF RELEASE FROM ACTIVE DUTY DID NOT CONFER A RIGHT TO ANY GREATER BENEFITS THAN WOULD HAVE ACCRUED IF YOUR RETIREMENT ACTUALLY HAD BEEN EFFECTED ON THAT DATE. RETIRED PAY COULD NOT BE GRANTED YOU FOR ANY PERIOD PRIOR TO DECEMBER 1, 1944, SINCE THE RECORDS SHOW YOU SERVED ON ACTIVE DUTY UNTIL THAT DATE. ITIS FUNDAMENTAL THAT A RIGHT TO RETIRED PAY DOES NOT ACCRUE TO ANYONE PRIOR TO HIS ACQUISITION OF A RETIRED STATUS AND THAT RETIRED PAY AND ACTIVE DUTY PAY MAY NOT BE PAID CONCURRENTLY. FURTHER, COPY OF THE DEPARTMENT OF THE ARMY LETTER YOU ENCLOSED MERELY STATES THAT BY REASON OF YOUR CERTIFICATION FOR RETIREMENT PAY BENEFITS AS AN OFFICER, YOUR RETIREMENT AS AN ENLISTED MAN WAS DECLARED NULL AND VOID. SUCH ACTION COULD NOT SERVE TO NULLIFY THE CONTINUED EXISTENCE OF THAT ACTIVE SERVICE, IN FACT, THE SAME LETTER ADVISES THAT IN THE COMPUTATION OF YOUR RETIREMENT PAY YOU WERE GIVEN CREDIT FOR THE ACTIVE DUTY PERFORMED IN AN ENLISTED STATUS FROM AUGUST 29, 1944, TO NOVEMBER 30, 1944.

RESPECTING YOUR ELIGIBILITY TO RECEIVE RETIRED PAY AS A CAPTAIN FROM OCTOBER 1, 1949, BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THAT IS, AT 75 PERCENT OF THE ACTIVE DUTY PAY UNDER THE RATES AUTHORIZED IN THE CAREER COMPENSATION ACT OF 1949, YOU ARE ADVISED THAT THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU MADE AN ELECTION UNDER SECTION 411 OF THAT ACT TO RECEIVE RETIRED PAY COMPUTED ON YOUR YEARS OF SERVICE UNDER THE PROVISIONS OF SECTION 511 (B) OF THAT ACT AT THE RATES PROVIDED IN THE CAREER COMPENSATION ACT. WE HAVE HELD THAT THE METHOD OF COMPUTING RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR AGE OR LENGTH OF SERVICE BEFORE OCTOBER 1, 1949, PROVIDED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 IS FOR EXCLUSIVE APPLICATION, AND, THEREFORE, AN OFFICER RETIRED FOR AGE OR LENGTH OF SERVICE PRIOR TO OCTOBER 1, 1949, WHOSE TOTAL ACTIVE SERVICE IS LESS THAN 29 YEARS AND 6 MONTHS, MAY NOT INVOKE THE PROVISIONS OF SECTION 511 IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT AND ALSO APPLY THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO DETERMINE THE PERCENTAGE OF HIS ACTIVE DUTY PAY IN ORDER TO RECEIVE A GREATER RETIRED PAY. SEE 30 COMP. GEN. 175; ID. 350; AND 31 COMP. GEN. 28. THE SAME CONCLUSION IS REQUIRED WITH RESPECT TO AN OFFICER RETIRED FOR DISABILITY BEFORE OCTOBER 1, 1949, WHO ELECTS TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT. SEE PALMER V. UNITED STATES, 139 C.CLS. 376.

IT APPEARING THAT YOU WERE ALLOWED THE AMOUNT TO WHICH YOU WERE ENTITLED ON THE BASIS SET FORTH ABOVE, THE DISALLOWANCE OF OCTOBER 22, 1959, IS SUSTAINED.