B-145659, JULY 25, 1961, 41 COMP. GEN. 38

B-145659: Jul 25, 1961

Additional Materials:

Contact:

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

 

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

SERVES ON ACTIVE DUTY AND IS RE-RETIRED IS ENTITLED BY VIRTUE OF ELECTION MADE UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT TO THE BENEFITS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THEREFORE MAY HAVE INACTIVE TIME ON THE RETIRED LIST CREDITED IN THE COMPUTATION OF RETIRED PAY EFFECTIVE FROM OCTOBER 1. BASED ON RATES OF PAY PRESCRIBED IN LAW THAT WERE IN EFFECT ON SEPTEMBER 30. - ARE ENTITLED PURSUANT TO ELECTIONS MADE UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. TO HAVE RETIRED PAY COMPUTED ON THE BASIS OF 402 (I) OF THE CAREER COMPENSATION ACT. IS TO BE DISTINGUISHED FROM THE HOLDING IN PALMER V. THAT AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT BY AN OFFICER PREVIOUSLY RETIRED IS NOT A RETIREMENT UNDER THE 1949 ACT AND THERE IS NO PROVISION OF LAW UNDER WHICH HE CAN HAVE RETIREMENT PAY BASED ON 75 PERCENT OF THE RATES OF THE CAREER COMPENSATION ACT.

B-145659, JULY 25, 1961, 41 COMP. GEN. 38

MILITARY PERSONNEL - RETIRED PAY - RE-RETIREMENT - RESERVES - INACTIVE TIME - ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 UNDER SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 10 U.S.C. 1215, WHICH EXTENDS TO ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE RETIRED BECAUSE OF DISABILITY THE SAME PAY, RIGHTS, BENEFITS AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES, A MEMBER OF THE UNIFORMED SERVICES WHO SERVED IN THE NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO, AFTER PLACEMENT ON THE RETIRED LIST OF THE NAVAL RESERVE FORCE BY REASON OF DISABILITY, SERVES ON ACTIVE DUTY AND IS RE-RETIRED IS ENTITLED BY VIRTUE OF ELECTION MADE UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT TO THE BENEFITS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, AND THEREFORE MAY HAVE INACTIVE TIME ON THE RETIRED LIST CREDITED IN THE COMPUTATION OF RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, BASED ON RATES OF PAY PRESCRIBED IN LAW THAT WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL PERCENTAGE INCREASES. THE HOLDING IN ANDREWS, ET AL. ( ROBERT S. RAYMOND, PLAINTIFF NO. 3) V. UNITED STATES, CT. CL. NO. 240-58, AND DARLING V. UNITED STATES, CT. CL. NO. 229-58, THAT MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949--- THE DATE OF THE CAREER COMPENSATION ACT OF 1949--- ARE ENTITLED PURSUANT TO ELECTIONS MADE UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 281, TO HAVE RETIRED PAY COMPUTED ON THE BASIS OF 402 (I) OF THE CAREER COMPENSATION ACT, 10 U.S.C. 1215, AT RATE OF 75 PERCENT OF PAY AUTHORIZED BY PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, IS TO BE DISTINGUISHED FROM THE HOLDING IN PALMER V. UNITED STATES, 139 CT. CL. 376, THAT AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT BY AN OFFICER PREVIOUSLY RETIRED IS NOT A RETIREMENT UNDER THE 1949 ACT AND THERE IS NO PROVISION OF LAW UNDER WHICH HE CAN HAVE RETIREMENT PAY BASED ON 75 PERCENT OF THE RATES OF THE CAREER COMPENSATION ACT.

TO LIEUTENANT COMMANDER E. C. DODD, DEPARTMENT OF THE NAVY, JULY 25, 1961:

YOUR LETTER OF MARCH 9, 1961, AND ENDORSEMENTS, PRESENTS FOR DECISION UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-572, THE QUESTION WHETHER LIEUTENANT CLAUDE CHANDLER, U.S. NAVAL RESERVE, RETIRED (FILE NO. 27318), IS ENTITLED TO AN INCREASE IN HIS RETIRED PAY BY REASON OF THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820 (NOW CODIFIED IN 10 U.S.C. 1215, 70A STAT. 100).

THE SPECIFIC QUESTION PRESENTED IS WHETHER LIEUTENANT CHANDLER IS ENTITLED, ON THE BASIS OF SECTION 402 (I) AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, TO COUNT INACTIVE SERVICE ON THE RETIRED LIST IN COMPUTING HIS RETIRED PAY ON THE BASE AND LONGEVITY PAY PRESCRIBED IN THE PAY READJUSTMENT ACT OF 1942 FOR A LIEUTENANT WITH OVER 30 YEARS OF SERVICE EFFECTIVE OCTOBER 1, 1949. THERE IS NOT INVOLVED A QUESTION OF ENTITLEMENT UNDER THOSE PROVISIONS OF LAW TO RETIRED PAY ON THE BASIS OF 75 PERCENT OF THE PAY RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949.

LIEUTENANT CHANDLER SERVED IN THE NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND ON AUGUST 20, 1920, HE WAS PLACED ON THE RETIRED LIST OF THE NAVAL RESERVE FORCE IN THE RANK OF LIEUTENANT, JUNIOR GRADE, BY REASON OF PHYSICAL DISABILITY. HE REMAINED IN AN INACTIVE (RETIRED) STATUS UNTIL HIS RECALL TO ACTIVE DUTY IN 1942. IT IS STATED THAT UPON RELEASE FROM ACTIVE DUTY EFFECTIVE AUGUST 26, 1945,"HE HAD COMPLETED 10 YEARS AND 2 MONTHS SERVICE FOR BASIC PAY PURPOSES AND 21 YEARS 10 MONTHS AND 6 DAYS INACTIVE SERVICE ON THE RETIRED LIST, A TOTAL OF 32 YEARS AND 6 DAYS SERVICE.' IT IS FURTHER STATED THAT IN ACCORDANCE WITH SECTION 10, ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT APPROVED FEBRUARY 21, 1946, 34 U.S.C. 350I (1946 USED.), THE SECRETARY OF THE NAVY ADVANCED LIEUTENANT CHANDLER ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT, THE HIGHEST TEMPORARY GRADE AND RANK IN WHICH HE SERVED SATISFACTORILY ON ACTIVE DUTY DURING WORLD WAR II, AND IN JUNE 1954 LIEUTENANT CHANDLER ELECTED UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281 (1952 USED.), TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AS PRESCRIBED IN METHOD (A) OF SECTION 511, THAT IS, MONTHLY RETIRED PAY IN THE AMOUNT AUTHORIZED BY THE PROVISIONS OF LAW WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949.

THERE IS NO DOUBT THAT HAVING BEEN RETIRED IN 1920 FOR PHYSICAL DISABILITY, LIEUTENANT CHANDLER'S RETIRED PAY STATUS CAME SQUARELY WITHIN THE SCOPE OF SECTION 411 OF THE 1949 LAW, THUS PERMITTING HIM TO ELECT TO QUALIFY FOR DISABILITY RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949), AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT, 37 U.S.C. 272 (D) (1952 USED.), OR TO RECEIVE RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS SET FORTH IN SECTION 511 OF THE ACT. LIEUTENANT CHANDLER ELECTED TO RECEIVE RETIRED PAY UNDER SECTION 511. HIS RETIRED PAY COMPUTED UNDER METHOD (A) OF THAT SECTION--- 75 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT WITH 10 YEARS AND 2 MONTHS' CREDITABLE SERVICE BASED ON THE RATES OF ACTIVE DUTY PAY IN EFFECT SEPTEMBER 30, 1949--- EXCEEDED THE AMOUNT OF RETIRED PAY DUE HIM WHEN COMPUTED ON THE RATES OF ACTIVE DUTY BASIC PAY PRESCRIBED IN THE 1949 ACT UNDER METHOD (B) OF SECTION 511 (BASED ON YEARS OF ACTIVE SERVICE), OR DISABILITY RETIRED PAY AS PRESCRIBED IN SECTION 402 (D) OF THE ACT COMPUTED (1) ON YEARS OF ACTIVE SERVICE OR (2) ON THE PERCENTAGE OF HIS DISABILITY, WHICH IS INDICATED AS RATED AT 30 PERCENT.

PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, PROVIDES:

THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

UNDER THE "RE-RETIREMENT" CONCEPT WHICH THE COURT OF CLAIMS HAS APPLIED TO THE ABOVE-QUOTED STATUTORY PROVISIONS (SEE THE CARROLL AND DANIELSON DECISIONS, 117 CT. CL. 53 (1948), AND 121 CT. CL. 533 (1952), RESPECTIVELY), AN OFFICER OF THE REGULAR MILITARY OR NAVAL FORCE OF THE UNITED STATES WHO SERVED IN ANY CAPACITY PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED FOR DISABILITY AND LATER RECALLED TO ACTIVE DUTY FROM AN INACTIVE STATUS ON THE RETIRED LIST BECAME ENTITLED, UPON RELEASE ("RE- RETIREMENT") PRIOR TO OCTOBER 1, 1949, FROM SUCH PERIOD OF ACTIVE DUTY, TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS RECEIVING ON THE DATE OF HIS RE-RETIREMENT" THEREBY RECEIVING CREDIT NOT ONLY FOR HIS ACTIVE SERVICE AS A RETIRED OFFICER, BUT ALSO FOR THE PERIOD OF HIS INACTIVE TIME ON THE RETIRED LIST. THE PROVISIONS OF PARAGRAPH 4, SECTION 15 OF THE 1942 LAW APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES AND EXCEPT AS OTHERWISE PROVIDED BY LAW, HAVE NO APPLICATION TO MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES. BARRY V. UNITED STATES, 123 CT. CL. 530; REYNOLDS V. UNITED STATES, 125 CT. CL. 108. SEE ABBOTT, ET AL. V. UNITED STATES, CT. CL. NO. 235-59, DECIDED MARCH 1, 1961.

SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820 (FOR THE CURRENT PROVISIONS OF LAW SEE 10 U.S.C. 1215), PROVIDED AS FOLLOWS:

ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES.

THE ISSUE RAISED IS WHETHER LIEUTENANT CHANDLER IS ENTITLED TO THE BENEFITS OF PARAGRAPH 4, SECTION 15 OF THE 1942 ACT SOLELY BY REASON OF THE PROVISIONS OF SECTION 402 (I) OF THE 1949 LAW, WHICH EXTENDS TO ALL MEMBERS OF THE RESERVE COMPONENTS RETIRED BECAUSE OF PHYSICAL DISABILITY THE SAME PAY, RIGHTS, BENEFITS AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES. YOU REFER SPECIFICALLY TO THE JUDGMENT ENTERED ON SEPTEMBER 7, 1960, BY THE COURT OF CLAIMS IN FAVOR OF LIEUTENANT COMMANDER ROBERT S. RAYMOND, U.S. NAVAL RESERVE, RETIRED (PLAINTIFF NO. 3 IN THE CASE OF ANDREWS, ET AL. V. UNITED STATES, CT. CL. NO. 240-58, DECIDED SEPTEMBER 7, 1960), BASED ON DEFENDANT'S ( GOVERNMENT-S) ADMISSION OF LIABILITY FILED MAY 31, 1960, CONCEDING THAT UNDER THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949 AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 " ROBERT S. RAYMOND, PLAINTIFF NO. 3, THEREFORE, IS ENTITLED TO RECOVER IN ACCORDANCE THEREWITH, I.E., ADDITIONAL RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT ON FEBRUARY 13, 1947, FOR THE PERIOD FROM MAY 29, 1952.'

THAT DATE ( MAY 29, 1952) REPRESENTS THE CUTOFF DATE REQUIRED BY THE PROVISIONS OF 28 U.S.C. 2501, WHICH HAD THE EFFECT OF LIMITING THE JURISDICTION OF THE COURT OF CLAIMS UNDER THE FACTS IN THAT CASE, TO THE 6 -YEAR PERIOD PRECEDING THE DATE THAT THE PETITION ( NO. 240-58) WAS FILED ON MAY 29, 1958. SUBSEQUENTLY THIS OFFICE AUTHORIZED PAYMENT TO LIEUTENANT COMMANDER RAYMOND OF INCREASED RETIRED PAY ON THE SAME BASIS (AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS RECEIVING ON FEBRUARY 13, 1947, THE DATE OF HIS "RE-RETIREMENT") FOR THE PERIOD FROM OCTOBER 1, 1949, TO MAY 28, 1952, INCLUSIVE, PLUS PERCENTAGE INCREASE EFFECTIVE MAY 1, 1952, AS PROVIDED BY LAW. THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WERE NOT APPLICABLE UNDER THE FACTS OF THAT CASE.

IN THE SIMILAR CASE OF COMMANDER ROY A. DARLING, U.S. NAVAL RESERVE, RETIRED, THE DEPARTMENT OF JUSTICE ALSO FILED AN ADMISSION OF LIABILITY ON THE SAME BASIS, NAMELY, SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949 AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. IN THAT CASE, WE DECIDED THAT IT SEEMED REASONABLE TO ASSUME THAT IN ALL OTHER SIMILAR CLAIMS FILED IN THE COURT OF CLAIMS THE DEPARTMENT OF JUSTICE WOULD TAKE LIKE ACTION, THEREBY MAKING IT HIGHLY IMPROBABLE THAT THE QUESTION AS TO THE SCOPE AND OPERATION OF SECTION 402 (I) OF THE 1949 LAW, WITH RESPECT TO THE RETIRED PAY STATUS OF RESERVE OFFICERS WHO WERE RETIRED FOR PHYSICAL DISABILITY AND AFTER SERVING AGAIN ON ACTIVE DUTY WERE RELEASED ("RE RETIRED") TO AN INACTIVE STATUS PRIOR TO OCTOBER 1, 1949, WILL BE JUDICIALLY DETERMINED.

IN SUCH CIRCUMSTANCES AND SINCE A LITERAL INTERPRETATION OF THE WORDS "HERETOFORE * * * RETIRED" IN SECTION 402 (I) LENDS SUPPORT TO THE VIEWS OF THE DEPARTMENT OF JUSTICE, WE AUTHORIZED A SETTLEMENT BY OUR CLAIMS DIVISION ALLOWING COMMANDER DARLING INCREASED RETIRED PAY ON THE BASIS INDICATED FOR THE PERIOD FROM OCTOBER 1, 1949, TO THE DATE PRECEDING THE ACTUAL PERIOD COVERED IN THE JUDGMENT, THE PROVISIONS OF 31 U.S.C. 71A NOT BEING APPLICABLE UNDER THE FACTS OF THAT CASE. IN STILL ANOTHER CASE, WALLING V. UNITED STATES, CT. CL. NO. 102-60, DECIDED APRIL 14, 1961, THE DEPARTMENT OF JUSTICE ADMITTED LIABILITY ON JANUARY 11, 1961, BASED ON THE SAME STATUTORY PROVISIONS. SINCE THEN OTHER SIMILAR CLAIMS FOR RETIRED PAY COVERING PERIODS FROM OCTOBER 1, 1949, HAVE BEEN ALLOWED IF OTHERWISE CORRECT, SUBJECT, OF COURSE, TO THE 10-YEAR LIMITATION PRESCRIBED IN 31 U.S.C. 71A.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF THE FACTS STATED IN YOUR LETTER, LIEUTENANT CHANDLER IS ENTITLED TO RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949 (SUBJECT TO THE PROVISIONS OF 31 U.S.C. 71A), COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT WITH OVER 30 CREDITABLE YEARS OF SERVICE (INCLUDING HIS INACTIVE TIME ON THE RETIRED LIST FROM 1920 TO 1942) BASED ON THE RATES OF PAY PRESCRIBED IN THE PROVISIONS OF LAW THAT WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL PERCENTAGE INCREASES THEREIN AS PROVIDED BY LAW.

THE CONCLUSIONS REACHED IN THE RAYMOND CASE AND ROY A. DARLING V. UNITED STATES, CT. CL. NO. 229-58, DECIDED NOVEMBER 20, 1959, ABOVE DISCUSSED ARE TO BE DISTINGUISHED FROM THE HOLDING IN THE DECISION RENDERED ON JULY 12, 1957, IN THE CASE OF JACKSON PALMER V. UNITED STATES, 139 CT. CL. 376. THAT CASE, THE PLAINTIFF, PALMER, AS THE RESULT OF A "CORRECTION BOARD" ACTION HAD BEEN CERTIFIED IN 1953 AS ELIGIBLE EFFECTIVE AS OF JULY 16, 1946, FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 555, 10 U.S.C. 202B (1946 USED.), BY REASON OF PHYSICAL DISABILITY INCURRED INCIDENT TO HIS ACTIVE SERVICE AS AN OFFICER OF THE ARMY OF THE UNITED STATES DURING THE PERIOD AUGUST 8, 1941, TO JULY 15, 1946. UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 (PURSUANT TO HIS ELECTION UNDER SECTION 411 OF THAT ACT), PALMER WAS ENTITLED TO RETIRED PAY AT THE RATE OF 60 PERCENT (THE PERCENTAGE OF HIS DISABILITY) OF THE BASIC PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE BASED ON THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THE 1949 ACT. THE PLAINTIFF, HOWEVER, HAD SERVED IN THE ARMY PRIOR TO NOVEMBER 12, 1918, AND HE CLAIMED THAT UNDER SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949 AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, HE WAS ENTITLED TO COMPUTE HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 75 PERCENT OF THE BASIC PAY OF HIS GRADE AS PRESCRIBED IN THE 1949 LAW. ON THIS ISSUE THE COURT STATED:

PLAINTIFF WOULD HAVE US HOLD THAT AN ELECTION BY A PREVIOUSLY RETIRED NONREGULAR OFFICER, WHO HAS SERVED IN THE SERVICE PRIOR TO NOVEMBER 12, 1918, TO RECEIVE DISABILITY RETIRED PAY UNDER THE PROVISIONS AUTHORIZED IN THE CAREER COMPENSATION ACT IS ENTITLED TO COMPUTE HIS PAY UPON THE BASIS OF 75 PERCENT OF THE BASIC PAY SO PROVIDED IN THAT ACT. IN OTHER WORDS, PLAINTIFF CLAIMS THAT WHEN AN ELECTION IS MADE UNDER SECTION 411 OF THE CAREER COMPENSATION ACT TO QUALIFY FOR THE DISABILITY PAY PROVIDED FOR BY THAT ACT, IT IS IN EFFECT A RETIREMENT UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT AND THAT SECTION 402 (I) ENTITLES HIM TO INVOKE THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942.

WE DO NOT BELIEVE THAT SUCH A RESULT WAS INTENDED BY CONGRESS WHEN THEY PASSED THE CAREER COMPENSATION ACT. THE ACT GAVE TO THOSE PREVIOUSLY RETIRED FOR PHYSICAL DISABILITY A RIGHT TO ELECT TO HAVE THEIR PAY COMPUTED IN ACCORDANCE WITH ONE OF THE TWO METHODS PROVIDED FOR IN SECTION 411, OR CONTINUE TO RECEIVE PAY BASED UPON THE LAWS IN EFFECT PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT. 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. 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. SINCE WE HOLD THAT AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT BY AN OFFICER PREVIOUSLY RETIRED FOR PHYSICAL DISABILITY IS NOT A RETIREMENT UNDER THAT ACT, THERE IS NO PROVISION OF LAW UNDER WHICH HE CAN HAVE RETIREMENT PAY BASED ON 75 PERCENT OF THE RATES OF THE CAREER COMPENSATION ACT OF 1949.

IN THE CASE NOW BEFORE US, THE SECRETARY OF THE ARMY CORRECTED PLAINTIFF'S RECORDS TO SHOW THAT HE WAS RELEASED FROM THE SERVICE BY REASON OF PHYSICAL DISABILITY AND CERTIFIED HIM FOR RETIREMENT UNDER THE ACT OF APRIL 3, 1939. EVEN THOUGH THIS ACTION TOOK PLACE AFTER THE PASSAGE OF THE CAREER COMPENSATION ACT, PLAINTIFF WAS NEVERTHELESS EFFECTIVELY RETIRED ON JULY 15, 1946, THE DATE HE WAS CERTIFIED FOR RETIREMENT AS SHOWN BY THE CORRECTED RECORDS. FOR THE PURPOSES OF THE PAY READJUSTMENT ACT OF 1942 PLAINTIFF WAS RETIRED UNDER THE ACT OF APRIL 3, 1939. PLAINTIFF MAY NOT NOW BY AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT BE CONSIDERED AS RETIRED THEREUNDER.

THUS, THE COURT FLATLY REJECTED THE THEORY ADVANCED BY THE PLAINTIFF, PALMER, THAT BY REASON OF SECTION 402 (I) HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, AT THE 75 PERCENT RATE AUTHORIZED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW AND BASED ON THE ACTIVE DUTY BASIC PAY OF HIS GRADE AS PRESCRIBED IN THE 1949 LAW. SEE, ALSO, 31 COMP. GEN. 28.