B-145247, APR. 27, 1961

B-145247, APR. 27, 1961

TO FINANCE OFFICER, VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION, MUNITIONS BUILDING:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1961, WITH ENCLOSURES, FILE C-1 343 629 BLOUNT, FREDERICK J., CODE 72, 3072/242A, REQUESTING AN OPINION AS TO THE ENTITLEMENT OF MR. FREDERICK J. BLOUNT TO AN INCREASE IN HIS EMERGENCY OFFICERS' RETIRED PAY. IN A LETTER DATED JANUARY 19, 1961, MR. BLOUNT HAS REQUESTED INFORMATION AS TO WHETHER THE COMPTROLLER GENERAL'S DECISION OF JUNE 21, 1960, B-142321, 39 COMP. GEN. 855, IS OF BENEFIT TO HIM. IN YOUR LETTER IT IS STATED THAT MR. BLOUNT IS CURRENTLY RECEIVING RETIRED PAY AT THE RATE OF $184.04 PER MONTH.

IT APPEARS FROM THE ARMY REGISTER, 1930, THAT FREDERICK J. BLOUNT WAS A MEMBER OF THE FLORIDA NATIONAL GUARD DURING THE PERIOD APRIL 22, 1912, TO NOVEMBER 11, 1914, INCLUSIVE, AND THAT HE SERVED ON ACTIVE DUTY IN THE MILITARY FORCES OF THE UNITED STATES FROM OCTOBER 25, 1917, TO MARCH 10, 1919, THE DATE OF HIS HONORABLE DISCHARGE AS FIRST LIEUTENANT, UNITED STATES ARMY. HE WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST (ESTABLISHED BY THE ACT OF MAY 24, 1928, 45 STAT. 735) ON NOVEMBER 26, 1928, IN THE GRADE OF FIRST LIEUTENANT AND THEREUPON BECAME ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENT OF THE PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS DISCHARGE FROM HIS COMMISSIONED SERVICE.

UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, HIS RETIRED PAY WAS REQUIRED TO BE COMPUTED EFFECTIVE FROM JULY 1, 1946, UPON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THAT ACT. THUS, EFFECTIVE JULY 1, 1946, HIS EMERGENCY OFFICERS' RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF THE PAY ($210 PER MONTH) OF A FIRST LIEUTENANT WITH A TOTAL OF 3 YEARS, 11 MONTHS, AND 6 DAYS' CREDITABLE SERVICE AMOUNTED TO $157.50 PER MONTH. ON MAY 1, 1952, THE AMOUNT OF RETIRED PAY DUE HIM WAS INCREASED BY FOUR PERCENT TO $163.80 PER MONTH; ON APRIL 1, 1955, BY SIX PERCENT TO $173.62 PER MONTH AND ON JUNE 1, 1958, BY ANOTHER SIX PERCENT TO $184.04 PER MONTH, THE RATE WHICH HE IS CURRENTLY AND CORRECTLY BEING PAID.

THE DECISION OF JUNE 21, 1960, B-142321, 39 COMP. GEN. 855, WHICH PROMPTS MR. BLOUNT'S INQUIRY, HELD THAT IN ACCORDANCE WITH THE HOLDING OF THE COURT OF CLAIMS IN THE JAKWAY CASE, CT.CL.NO. 51-58, DECIDED JULY 13, 1959, MEMBERS OF THE UNIFORMED SERVICES WHO HAVE SERVED PRIOR TO NOVEMBER 12, 1918, AND WHO AT THE TIME OF THEIR RETIREMENT FOR PHYSICAL DISABILITY ARE SERVING IN ENLISTED GRADES BUT ARE DETERMINED UNDER SECTIONS 402 (D) AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 823, TO BE ELIGIBLE FOR RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER GRADE OR RANK, ARE TO BE REGARDED AS BEING RETIRED AS OFFICERS AND HENCE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF THEIR OFFICER GRADE AT TIME OF RETIREMENT AS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115. APPARENTLY MR. BLOUNT FEELS THAT UNDER THAT RULING HE MAY BE ENTITLED TO COMPUTE HIS RETIRED PAY, PRESUMABLY FROM OCTOBER 1, 1949, AT 75 PERCENT OF THE BASIC PAY OF A FIRST LIEUTENANT (WITH OVER TWO BUT NOT OVER FOUR YEARS OF CREDITABLE SERVICE) ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949.

HOWEVER, MR. BLOUNT WAS NOT RETIRED UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949 AND HENCE HE IS NOT WITHIN THE PURVIEW OF THE JAKWAY DECISION OF JULY 13, 1959. MOREOVER, ON THE BASIS OF THE 50 PERCENT DISABILITY RATING MENTIONED BY MR. BLOUNT IN HIS LETTER OF JANUARY 19, 1961, HIS RETIRED PAY, IF COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, ON THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AS PROVIDED IN SECTIONS 411 AND 402 (D) OF THAT ACT, WOULD BE LESS THAN THE AMOUNT OF RETIRED PAY WHICH HE HAS BEEN PAID FROM OCTOBER 1, 1949, TO DATE IN ACCORDANCE WITH THE PROVISIONS OF LAW WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, TOGETHER WITH ALL SUBSEQUENT PERCENTAGE INCREASES IN SUCH PAY.