B-144011, DEC. 19, 1960

B-144011: Dec 19, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RETIRED: REFERENCE IS MADE TO LETTERS OF SEPTEMBER 8 AND 16. YOUR CLAIM WAS DENIED FOR THE REASON THAT THE BENEFITS OF SECTION 203 (F) OF THE ACT OF JUNE 29. WERE NOT APPLICABLE IN YOUR CASE SINCE YOU WERE NOT SERVING IN THE TEMPORARY GRADE OF COLONEL AT THE TIME OF YOUR RETIREMENT. YOUR ATTORNEY STATES THAT THE FACT THAT YOU WERE NOT SERVING AS A COLONEL ON THE DATE OF YOUR RETIREMENT. WERE SERVING IN THE RANK OF LIEUTENANT COLONEL AT THAT TIME. IT IS CONTENDED THAT THERE IS NOTHING IN THE STATUTE WHICH. STATES THAT IN ORDER TO BE ENTITLED TO ITS BENEFITS THE PERSON CONCERNED MUST HAVE BEEN SERVING IN THE TEMPORARY RANK ON WHICH THE INCREASED RETIRED PAY IS CLAIMED. AT THE TIME HE WAS RETIRED.

B-144011, DEC. 19, 1960

TO LIEUTENANT COLONEL FLOYD R. BRISACK, USA, RETIRED:

REFERENCE IS MADE TO LETTERS OF SEPTEMBER 8 AND 16, 1960, SUBMITTED IN YOUR BEHALF BY YOUR ATTORNEY, REQUESTING REVIEW OF SETTLEMENT OF AUGUST 5, 1960, WHICH DENIED YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1947.

YOUR CLAIM WAS DENIED FOR THE REASON THAT THE BENEFITS OF SECTION 203 (F) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1086, WERE NOT APPLICABLE IN YOUR CASE SINCE YOU WERE NOT SERVING IN THE TEMPORARY GRADE OF COLONEL AT THE TIME OF YOUR RETIREMENT.

YOUR ATTORNEY STATES THAT THE FACT THAT YOU WERE NOT SERVING AS A COLONEL ON THE DATE OF YOUR RETIREMENT, BUT WERE SERVING IN THE RANK OF LIEUTENANT COLONEL AT THAT TIME, HAS NO BEARING ON YOUR RIGHT TO RETIREMENT IN THE RANK OF COLONEL WITH THE PAY OF THAT RANK FROM THE TIME OF YOUR SEPARATION FROM ACTIVE DUTY ON SEPTEMBER 30, 1947. IT IS CONTENDED THAT THERE IS NOTHING IN THE STATUTE WHICH, DIRECTLY OR INDIRECTLY, STATES THAT IN ORDER TO BE ENTITLED TO ITS BENEFITS THE PERSON CONCERNED MUST HAVE BEEN SERVING IN THE TEMPORARY RANK ON WHICH THE INCREASED RETIRED PAY IS CLAIMED, AT THE TIME HE WAS RETIRED, BUT THAT ALL THAT WAS NECESSARY WAS THAT HE SHALL HAVE SERVED IN THAT RANK WHILE ON ACTIVE DUTY AND THAT THERE IS NO REQUIREMENT AS TO THE LENGTH OF SUCH SERVICE.

THE RECORDS SHOW THAT YOU RECEIVED A TEMPORARY TERMINAL LEAVE PROMOTION EFFECTIVE AUGUST 2, 1947, TO THE GRADE OF COLONEL IN THE ARMY OF THE UNITED STATES UNDER PROVISIONS OF PARAGRAPH 3, WAR DEPARTMENT CIRCULAR 140, 1946, WHICH PROVIDED THAT OFFICERS MEETING CERTAIN QUALIFICATIONS WERE ELIGIBLE FOR A ONE GRADE PROMOTION, COINCIDENT WITH PROCESSING FOR RELIEF FROM ACTIVE DUTY. THE ORDER EFFECTING THE TEMPORARY PROMOTION PROVIDED THAT SUCH PROMOTION SHOULD TERMINATE ON "29 SEPTEMBER 1947, THE DAY PRIOR TO THE EFFECTIVE DATE OF YOUR RETIREMENT.'

AT THE TIME OF YOUR RETIREMENT THE PROVISIONS OF 10 U.S.C. 1025 (1946 ED.), AUTHORIZED THE RETIREMENT OF OFFICERS "UPON THE ACTUAL RANK HELD BY THEM AT THE DATE OF RETIREMENT.' SINCE YOUR TEMPORARY APPOINTMENT AS A COLONEL TERMINATED PRIOR TO THE DATE OF YOUR RETIREMENT, YOU ARE ENTITLED TO THE INCREASED RETIRED PAY CLAIMED ONLY IF YOU WERE ELIGIBLE TO BE ADVANCED ON THE RETIRED LIST TO THE GRADE OF COLONEL UNDER SECTION 203 (F) OF THE 1948 ACT. THAT SECTION AUTHORIZED SUCH ADVANCEMENT TO A TEMPORARY GRADE ONLY IN THE CASES OF OFFICERS WHO WERE "RETIRED OR GRANTED RETIREMENT PAY * * * WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE.' THAT PROVISION IS SIGNIFICANTLY DIFFERENT FROM THE LANGUAGE CONTAINED IN SECTION 203 (A) OF THAT ACT WHICH AUTHORIZED ADVANCEMENT ON THE RETIRED LIST UNDER THE CIRCUMSTANCES THERE PROVIDED "TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY.' THERE IS NO REASON TO ASSUME THAT THE CONGRESS DID NOT USE SUCH CONTRASTING PHRASEOLOGY ADVISEDLY OR THAT IT WAS INTENDED THAT THE LANGUAGE USED SHOULD BE GIVEN OTHER THAN ITS NORMAL MEANING.

UNDER DATE OF NOVEMBER 21, 1960, THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, ADVISED THAT THE VACATING OF YOUR TEMPORARY APPOINTMENT PRIOR TO THE EFFECTIVE DATE OF YOUR RETIREMENT WAS IN ACCORDANCE WITH ADMINISTRATIVE POLICY NOT TO RETIRE AN OFFICER IN HIS TERMINAL LEAVE PROMOTION GRADE. THIS POLICY IS STATED TO HAVE BEEN ADHERED TO BECAUSE SERVICE DURING THE TERMINAL LEAVE PERIOD WAS ACTIVE SERVICE ONLY IN A TECHNICAL SENSE AND DID NOT INVOLVE THE ACTUAL PERFORMANCE OF MILITARY DUTIES. IN SUCH CIRCUMSTANCES, IT WAS CONSIDERED INAPPROPRIATE TO ATTEMPT TO CONFER AN INCREASE IN THE RETIRED PAY OF AN OFFICER BY MEANS OF A TERMINAL LEAVE PROMOTION. NOTHING HAS BEEN FOUND IN THE PROVISIONS OF LAW RELATING TO THE RETIREMENT OF MILITARY OFFICERS WHICH FURNISHES A BASIS FOR QUESTIONING THE CORRECTNESS OF THIS ARMY POLICY OR THE INTENDED EFFECT OF THE ACTION TAKEN IN THIS CASE.

SINCE YOU WERE NOT SERVING ON ACTIVE DUTY IN THE GRADE OF COLONEL AT THE TIME OF YOUR RETIREMENT, SECTION 203 (F) OF THE 1948 ACT PROVIDES NO BASIS FOR THE PAYMENT OF YOUR CLAIM. SEE 37 COMP. GEN. 538. ACCORDINGLY, THE DISALLOWANCE OF AUGUST 5, 1960, IS SUSTAINED.