B-143606, AUG. 19, 1960

B-143606, AUG. 19, 1960

TO COLONEL E. G. RAREY, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1960, REQUESTING REVIEW OF CLAIMS DIVISION DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY BEGINNING OCTOBER 1, 1949, BASED ON THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368. YOU CITE DECISION B-142321 AS EXTENDING "THE RETIRED PAY BENEFITS OF THE 1942 ACT TO ALL RESERVISTS RETIRED FOR DISABILITY UNDER THE CAREER COMPENSATION ACT OF 1949, YOU MUST, OF NECESSITY, BE RETIRED INASMUCH AS YOU HAD MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, YOU ARE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON AND AFTER OCTOBER 1, 1949, AT 75 PERCENT OF THE ACTIVE DUTY PAY RATE SET FORTH IN THE 1949 ACT AND THAT INASMUCH AS YOU ARE NOW DRAWING PAY UNDER THE CAREER COMPENSATION ACT OF 1949, YOU MUST, OF NECESSITY, BE RETIRED UNDER THAT ACT.

YOUR CLAIM WAS PREVIOUSLY DISALLOWED BY SETTLEMENT DATED APRIL 21, 1959, FOR THE STATED REASON THAT OFFICERS RETIRED PRIOR TO OCTOBER 1, 1949, MAY NOT HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT, AND, IN ADDITION, RECEIVE THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT.

BY DECISION B-142321, DATED JUNE 21, 1960, 39 COMP. GEN. - , WE SAID THAT WE WOULD FOLLOW THE COURT'S DECISION IN THE CASE OF JAKWAY V UNITED STATES, CT. CL. NO. 51-58, DECIDED JULY 13, 1959. IN THAT CASE THE COURT HELD THAT SINCE THE PLAINTIFF WAS AN OFFICER WHO HAD SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HAD 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 SECTIONS 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 PAY READJUSTMENT ACT OF 1942.

TITLE 4 OF THE CAREER COMPENSATION ACT CONTAINS PROVISIONS RELATING TO RETIREMENT, RETIREMENT PAY, SEPARATION, AND SEVERANCE PAY FOR PHYSICAL DISABILITY EFFECTIVE OCTOBER 1, 1949. SECTION 411 OF THAT TITLE PROVIDES IN PERTINENT PART THAT A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR PHYSICAL DISABILITY MIGHT ELECT WITHIN THE FIVE- YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF TITLE 4 OF THE ACT TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE CAREER COMPENSATION ACT OR TO CONTINUE TO RECEIVE THE PAY TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING THE DATE OF ENACTMENT OF THAT ACT.

THE RECORD SHOWS THAT YOU WERE CERTIFIED TO THE VETERANS ADMINISTRATION FOR PAYMENT OF DISABILITY RETIREMENT PAY, EFFECTIVE JUNE 9, 1944, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, IN THE AMOUNT OF $350 MONTHLY. AT THAT TIME YOU HAD COMPLETED OVER 26 BUT LESS THAN 27 YEARS OF SERVICE CREDITABLE FOR LONGEVITY PURPOSES (6 YEARS, 10 MONTHS, AND 3 DAYS OF WHICH WAS ACTIVE SERVICE) AND THAT YOU HELD THE RANK OF COLONEL. THE RECORD FURTHER SHOWS THAT YOU WERE PAID RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY OF A COLONEL WITH OVER 26 YEARS OF SERVICE FROM JUNE 9, 1944, THROUGH SEPTEMBER 30, 1949, AND THAT YOU ELECTED, EFFECTIVE OCTOBER 1, 1949, UNDER SECTIONS 411 (OPTION A) AND 402 (D) (OPTION 2) OF THE 1949 ACT TO RECEIVE RETIRED PAY IN THE AMOUNT OF $401.85 MONTHLY BASED ON THE RATES OF THAT ACT AND THE PERCENTAGE OF YOUR DISABILITY, 60 PERCENT, AT THE TIME YOU WERE RETIRED OR GRANTED DISABILITY RETIREMENT PAY. IT IS READILY APPARENT THAT THE FACTUAL BASIS OF THE JAKWAY DECISION BEARS NO MATERIAL ANALOGY TO YOUR CIRCUMSTANCES.

WE HELD IN DECISION B-102149, DATED AUGUST 13, 1951, 31 COMP. GEN. 28, THAT OFFICERS OF THE REGULAR ARMY WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO WERE ,RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, MAY NOT HAVE THEIR DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE RATES OF MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AND IN ADDITION RECEIVE THE BENEFITS OF THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.' THE CONCLUSION REACHED IN THAT DECISION IS EQUALLY APPLICABLE TO MEMBERS OF THE RESERVE COMPONENTS WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949.

IT HAS BEEN HELD BY THE UNITED STATES COURT OF CLAIMS THAT AN ELECTION MADE UNDER SECTION 411 OF THE CAREER COMPENSATION ACT TO QUALIFY FOR THE DISABILITY PAY PROVIDED FOR BY THAT ACT IS NEITHER ACTUALLY, NOR IN ITS EFFECT, A RETIREMENT UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT. THE COURT HAS HELD THAT THE ACT GAVE TO THOSE PREVIOUSLY RETIRED FOR PHYSICAL DISABILITY A RIGHT TO HAVE THEIR RETIRED PAY COMPUTED IN ACCORDANCE WITH ONE OF THE TWO METHODS PROVIDED FOR IN SECTION 411, OR TO CONTINUE TO RECEIVE PAY BASED UPON THE LAWS IN EFFECT PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT, AND THAT THIS DID NOT MEAN THAT AN ELECTION TO RECEIVE DISABILITY RETIRED PAY UNDER THE CAREER COMPENSATION ACT SHOULD AMOUNT TO A RETIREMENT UNDER THAT ACT AS THOSE WORDS ARE USED IN THE PAY READJUSTMENT ACT OF 1942. THE COURT FURTHER HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 LIMITS ITS BENEFITS TO THE TIME OF RETIREMENT UNDER A PROVISION OF LAW AND, SINCE IT IS HELD THAT AN ELECTION UNDER SECTION 411 IS NOT A RETIREMENT UNDER THE ACT, THERE IS NO PROVISION OF LAW UNDER WHICH SUCH OFFICER CAN HAVE RETIREMENT PAY BASED ON 75 PERCENT OF THE RATES OF THE CAREER COMPENSATION ACT OF 1949. SEE PALMER V UNITED STATES, 139 CT. CL. 376.

SINCE YOU WERE RETIRED PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 AND BECAME ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF ITS RATES BY VIRTUE OF A SECTION 411 ELECTION, SUCH ELECTION DID NOT CONSTITUTE A RETIREMENT UNDER THAT ACT PERMITTING YOU TO COMPUTE YOUR RETIRED PAY UPON THE BASIS OF 75 PERCENT OF THE BASIC PAY PROVIDED BY THAT ACT, BY REASON OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND MUST BE SUSTAINED.