B-142321, JUNE 21, 1960, 39 COMP. GEN. 855

B-142321: Jun 21, 1960

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MILITARY PERSONNEL - DISABILITY RETIREMENT PAY - ENLISTED MEMBERS ELIGIBLE FOR RETIRED PAY AS OFFICERS - JAKWAY CASE MEMBERS OF THE UNIFORMED SERVICES WHO HAVE HAD SERVICE PRIOR TO NOVEMBER 12. WHO AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY ARE SERVING IN ENLISTED GRADES BUT ARE DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER GRADE OR RANK. ARE REGARDED AS BEING RETIRED AS OFFICERS AND ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF THE OFFICER GRADE AS REQUIRED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IN ACCORDANCE WITH THE HOLDING IN JAKWAY V. WHICH WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CASES. 36 COMP.

B-142321, JUNE 21, 1960, 39 COMP. GEN. 855

MILITARY PERSONNEL - DISABILITY RETIREMENT PAY - ENLISTED MEMBERS ELIGIBLE FOR RETIRED PAY AS OFFICERS - JAKWAY CASE MEMBERS OF THE UNIFORMED SERVICES WHO HAVE HAD SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY ARE SERVING IN ENLISTED GRADES BUT ARE DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER GRADE OR RANK, UNDER SECTIONS 402 (D) AND 409 OF THE CAREER COMPENSATION ACT OF 1949, ARE REGARDED AS BEING RETIRED AS OFFICERS AND ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF THE OFFICER GRADE AS REQUIRED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IN ACCORDANCE WITH THE HOLDING IN JAKWAY V. UNITED STATES, CT. CL. NO. 51-58, DECIDED JULY 13, 1959, WHICH WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CASES. 36 COMP. GEN. 8, OVERRULED. A MEMBER OF THE UNIFORMED SERVICES WHO HAD SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO WAS SERVING ON ACTIVE DUTY IN AN ENLISTED GRADE AT THE TIME OF DISABILITY RETIREMENT WHEN THE MEMBER WAS DETERMINED TO BE ELIGIBLE FOR RETIRED PAY AS AN OFFICER IN THE GRADE OF MAJOR, ALTHOUGH AT THE TIME HE HELD A RESERVE COMMISSION AS LIEUTENANT COLONEL, IS REGARDED AS BEING RETIRED AS AN OFFICER AND ENTITLED BY VIRTUE OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949 TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF THE GRADE OF LIEUTENANT COLONEL AS PROVIDED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, JUNE 21, 1960:

YOUR LETTER OF FEBRUARY 29, 1960, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN THE AMOUNT OF $91.15, IN FAVOR OF LIEUTENANT COLONEL MICHAEL J. LYNCH, O287813, RETIRED, REPRESENTING AN INCREASE IN RETIRED PAY FOR THE PERIOD JUNE 1 TO 30, 1952. YOUR REQUEST WAS FORWARDED TO US BY FIRST ENDORSEMENT DATED MARCH 15, 1960, HAVING BEEN ALLOCATED D.O. NUMBER 486 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN THAT COLONEL LYNCH WAS DISCHARGED FROM HIS ENLISTED GRADE OF MASTER SERGEANT ON MAY 31, 1952, AND DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT ON THE SAME DATE, IN THE GRADE OF MAJOR UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, NOW 10 U.S.C. 1201 AND 1372, DUE TO PERMANENT DISABILITY OF 60 PERCENT. AT THAT TIME THE OFFICER HAD 15 YEARS, 1 MONTH AND 27 DAYS' ACTIVE SERVICE AND 26 YEARS, 3 MONTHS AND 2 DAYS' TOTAL SERVICE FOR BASIC PAY PURPOSES. ORDERS DATED NOVEMBER 7, 1958, THE RETIREMENT ORDERS OF MAY 8, 1952, WERE AMENDED TO SHOW HIS PROPER RETIRED GRADE AS LIEUTENANT COLONEL. INFORMATION OBTAINED FROM THE ADJUTANT GENERAL'S OFFICE SHOWS THAT HE WAS APPOINTED LIEUTENANT COLONEL, USAR, ON AUGUST 4, 1948 (ACCEPTED AUGUST 16, 1948), AND THAT HE HELD THAT RESERVE COMMISSION AT THE TIME OF HIS RETIREMENT. IT IS STATED THAT AT THE TIME OF RETIREMENT THE ADJUTANT GENERAL FURNISHED ADVICE THAT THE OFFICER WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT PURSUANT TO PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, DUE TO SERVICE IN THE UNITED STATES ARMY DURING THE PERIOD JANUARY 19, 1918, THROUGH NOVEMBER 26, 1918. RETIRED PAY WAS COMPUTED AND PAID AT 75 PERCENT OF THE PAY OF A MAJOR WITH OVER 26 YEARS' SERVICE FOR BASIC PAY PURPOSES EFFECTIVE JUNE 1, 1952.

HOWEVER, IN DECISION OF JULY 5, 1956, 36 COMP. GEN. 8, WE HELD THAT AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY AND DETERMINED TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER RANK OR GRADE, PURSUANT TO SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, DOES NOT HAVE HIS ENLISTED STATUS TERMINATED AND IS NOT TO BE CONSIDERED AS AN OFFICER AT THE TIME OF RETIREMENT FOR THE COMPUTATION OF RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. IT IS STATED THAT IN VIEW OF THAT DECISION THE OFFICER'S RETIRED PAY ACCOUNT WAS AUDITED AND NECESSARY CORRECTIONS MADE; THAT AN ELECTION WAS MADE TO RECEIVE RETIRED PAY BASED ON DISABILITY, AND THAT COLONEL LYNCH CURRENTLY IS RECEIVING RETIRED PAY OF 60 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT COLONEL WITH OVER 26 YEARS' SERVICE FOR BASIC PAY PURPOSES, LESS VETERANS ADMINISTRATION COMPENSATION OF $73, OR $353.63 MONTHLY.

YOU STATE THAT IN JAKWAY V. UNITED STATES, C.1CLS. NO. 51-58, DECIDED JULY 13, 1959, THE UNITED STATES COURT OF CLAIMS HELD THAT AN OFFICER WHO HAD SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WAS RETIRED AS A COLONEL UNDER THE CAREER COMPENSATION ACT OF 1949, WAS ENTITLED TO HAVE HIS PAY COMPUTED ON THE BASIS OF 75 PERCENT OF SUCH GRADE UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 ACT, 10 U.S.C. 1401. SINCE COLONEL LYNCH WAS RETIRED AS COMMISSIONED OFFICER ALTHOUGH SERVING AS AN ENLISTED MAN PRIOR TO RETIREMENT FOR DISABILITY, YOU QUESTION WHETHER THE COURT OF CLAIMS DECISION WILL BE FOLLOWED IN THIS AND SIMILAR CASES AND WHETHER WE WILL OVERRULE THE DECISION OF JULY 5, 1956.

BY DECISION OF MARCH 7, 1958, 37 COMP. GEN. 585, WE ADVISED THE SECRETARY OF DEFENSE THAT IN THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY WHO HOLD PERMANENT RESERVES GRADES WHICH ARE HIGHER THAN THE TEMPORARY GRADES IN WHICH THEY ARE SERVING ON ACTIVE DUTY AT THE TIME OF RETIREMENT, THE RULE ESTABLISHED IN THE CASE OF TRACY V. UNITED STATES, 136 C.1CLS. 211, AND RELATED CASES, WHICH AUTHORIZES COMPUTATION OF RETIRED PAY ON THE BASIS OF THE HIGHER RESERVE GRADE, WILL BE FOLLOWED BY THIS OFFICE NOT ONLY WITH RESPECT TO THE APPLICABILITY OF THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT/OF 1942, TO RESERVE OFFICERS RETIRED FOR DISABILITY, BUT ALSO WITH RESPECT TO DISABILITY RETIREMENT PAY UNDER SECTION 402 (D), CAREER COMPENSATION ACT OF 1949, OR UNDER 10 U.S.C. 1372.

IN THE JAKWAY CASE THE COURT OF CLAIMS HELD THAT, SINCE THE PLAINTIFF WAS AN OFFICER WHO HAD SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HELD A PERMANENT RESERVE COMMISSION AT THE TIME OF HIS RETIREMENT, AND WAS RETIRED BY REASON OF PHYSICAL DISABILITY IN 1956 AS AN OFFICER UNDER THE PROVISIONS OF SECTION 402 (D) AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 820, HE BECAME ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF SUCH GRADE AS REQUIRED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368. THE COURT ALSO POINTED OUT THAT WHILE THE PLAINTIFF WAS SERVING AS A WARRANT OFFICER AT THE TIME OF HIS RETIREMENT, HE HELD A COMMISSION AS A COLONEL IN THE AIR FORCE RESERVE AT THAT TIME. IT WAS CONCLUDED THAT HE ACTUALLY WAS RETIRED AS AN OFFICER AND BY VIRTUE OF SECTION 402 (I) OF THE 1949 ACT, 10 U.S.C. 1215, WAS ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.

WE HAVE DECIDED TO FOLLOW THE COURT'S DECISION IN THE JAKWAY CASE AS A PRECEDENT IN ACTING ON OTHER SIMILAR CASES AND IT APPEARS THAT THE PRINCIPLE OF THAT DECISION PROPERLY IS FOR APPLICATION IN THE CASE OF COLONEL LYNCH. TO THE EXTENT THAT 36 COMP. GEN. 8 CONFLICTS WITH SUCH COURT DECISION IT WILL NOT BE FOLLOWED.

ACCORDINGLY, PAYMENT IS AUTHORIZED ON THE VOUCHER WHICH IS RETURNED HEREWITH.