B-147050, OCTOBER 23, 1961, 41 COMP. GEN. 262

B-147050, OCTOBER 23, 1961, 41 COMP. GEN. 262

PAY - RETIRED - DISABILITY - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - YEARS OF SERVICE V. PERCENTAGE OF DISABILITY BASIS--- MILITARY PERSONNEL - RECORD CORRECTION - RETIRED PAY ELECTION MEMBERS OF THE UNIFORMED SERVICES WHO, WHEN RETIRED FOR PHYSICAL DISABILITY IN AN ACTIVE DUTY GRADE LOWER THAN A HIGHER GRADE HELD IN THE RESERVE COMPONENTS, ELECTED TO RECEIVE RETIRED PAY UNDER THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- ARE ELIGIBLE FOR RETIRED PAY IN THE HIGHER GRADE ON THE BASIS OF YEARS OF SERVICE UNDER THE TRACY, LOWELL AND BUDD DECISIONS (136 CT.1CL. 211; 141 ID. 111; ID. 123), THE EFFECT OF SECTION 411 OF THE ACT WHICH GIVES MEMBERS RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, THE RIGHT TO QUALIFY FOR DISABILITY RETIREMENT UNDER TITLE IV OF THE ACT, BEING TO GIVE THE MEMBERS A FURTHER ELECTION TO HAVE THEIR PAY COMPUTED ON EITHER A YEARS OF SERVICE OR A PERCENTAGE OF DISABILITY BASIS AS PROVIDED IN SECTION 402 (D) OF THE ACT. A MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY RECORDS SHOWING RETIREMENT FOR DISABILITY PRIOR TO OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- IN AN ACTIVE DUTY GRADE LESS THAN THE MEMBER'S PERMANENT RESERVE GRADE AND AN ELECTION UNDER SECTION 411 OF THE ACT TO RECEIVE RETIRED PAY ON THE BASIS OF THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, WERE CORRECTED TO SHOW THAT A TIMELY ELECTION WAS MADE TO RECEIVE RETIRED PAY IN THE HIGHER RESERVE GRADE BASED ON YEARS OF SERVICE IS ENTITLED TO RECEIVE AN ADJUSTMENT OF DISABILITY RETIRED PAY BASED ON YEARS OF SERVICE IN THE HIGHER GRADE, THE EFFECT OF SECTION 411 OF THE ACT, WHICH GIVES MEMBERS RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, THE RIGHT TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT UNDER TITLE IV OF THE ACT, BEING TO GIVE THE MEMBERS A FURTHER ELECTION TO HAVE THEIR RETIRED PAY COMPUTED ON EITHER YEARS OF SERVICE OR ON A PERCENTAGE OF DISABILITY AS PROVIDED IN SECTION 402 (D) OF THE ACT.

TO CAPTAIN S. NORTON, DEPARTMENT OF THE ARMY, OCTOBER 23, 1961:

YOUR LETTER DATED JULY 28, 1961, REQUESTED AN ADVANCE DECISION CONCERNING THE VALIDITY OF THE PAYMENT PROPOSED ON A VOUCHER TOTALING $10,696.37, FORWARDED WITH YOUR LETTER, REPRESENTING AN ADJUSTMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, THROUGH JULY 31, 1961, AS A RESULT OF CORRECTION OF THE RECORDS IN THE CASE OF MAJOR MITCHELL BODNER, 10223353. YOUR REQUEST WAS FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, BY FIRST ENDORSEMENT DATED AUGUST 21, 1961, UNDER D.O. NO. 598 ALLOCATED BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT MAJOR BODNER WAS PLACED ON THE RETIRED LIST MAY 31, 1949, BY REASON OF PHYSICAL DISABILITY, UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, 10 U.S.C. 656 (1946 USED.), IN THE GRADE OF MASTER SERGEANT, THE GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY. HE WAS CONCURRENTLY ADVANCED ON THE RETIRED LIST TO THE GRADE OF MASTER SERGEANT, THE GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY. HE WAS CONCURRENTLY ADVANCED ON THE RETIRED LIST TO THE GRADE OF MAJOR UNDER THE PROVISIONS OF SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1086, 10 U.S.C. 1004 (1952 (ED.). MAJOR BODNER HAD COMPLETED 27 YEARS 10 MONTHS AND 7 DAYS OF ACTIVE SERVICE AND 27 YEARS 10 MONTHS AND 18 DAYS' SERVICE FOR BASIC PAY PURPOSES. AT THE TIME OF HIS RETIREMENT HE HELD PERMANENT RESERVE APPOINTMENT IN THE GRADE OF LIEUTENANT COLONEL.

YOU REPORT THAT THE CASE OF MAJOR BODNER WAS REVIEWED UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281 (1952 USED.), AND HIS DISABILITY RATING WAS DETERMINED TO BE 40 PERCENT. HE WAS ADVISED OF HIS RIGHT TO ELECT RETIRED PAY UNDER THE PROVISIONS OF SECTION 411 AND HE ELECTED TO CONTINUE TO RECEIVE RETIRED PAY UNDER THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949.

YOU ALSO SAY THAT IN AN APPLICATION FOR REVIEW OF HIS CASE BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, MAJOR BODNER REQUESTED THAT HE BE GRANTED RETIRED PAY BASED ON HIS RESERVE GRADE OF LIEUTENANT COLONEL. ON MAY 10, 1961, THE UNDER SECRETARY OF THE ARMY ISSUED THE FOLLOWING DIRECTIVE---

THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF MITCHELL BODNER BE CORRECTED TO SHOW THAT HE WAS TIMELY ADVISED OF HIS ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF HIS RESERVE GRADE OF LIEUTENANT COLONEL AND THAT HE TIMELY ELECTED UNDER THE PROVISIONS OF SECTION 411, PUBLIC LAW 351, 81ST CONGRESS, TO RECEIVE RETIREMENT PAY UNDER SUCH LAW IN THE AMOUNT MOST ADVANTAGEOUS TO HIM.

AS YOU SAY, THE APPARENT INTENT OF THE CORRECTION OF THE RECORD WAS TO PROVIDE FOR RETIRED PAY BASED ON THE PAY OF THE GRADE OF LIEUTENANT COLONEL MULTIPLIED BY 2 1/2 PERCENT FOR EACH YEAR OF ACTIVE SERVICE, SINCE THE EXTENT OF HIS DISABILITY WAS DETERMINED TO BE ONLY 40 PERCENT. YOU HAVE EXPRESSED DOUBT AS TO WHETHER MAJOR BODNER MAY BE ALLOWED RETIRED PAY IN THE HIGHER GRADE BASED ON YEARS OF SERVICE AND FROM YOUR DISCUSSION OF HIS RIGHTS UNDER SECTION 411, IT APPEARS THAT YOU ARE UNDER THE IMPRESSION THAT HE COULD ELECT TO RECEIVE RETIRED PAY COMPUTED ON A YEARS OF SERVICE BASIS ONLY UNDER SECTION 511 OF THE 1949 ACT, 37 U.S.C. 311, OR ON THE PERCENTAGE OF HIS DISABILITY BASIS UNDER SECTION 402 (D), 37 U.S.C. 272 (D) (1952 USED.).

UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE SECRETARY OF A MILITARY DEPARTMENT IS AUTHORIZED TO CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUCH A CORRECTION AUTHORIZED BY THE STATUTE IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES EXCEPT WHEN PROCURED BY FRAUD. A MEMBER IS ENTITLED CONTEMPORANEOUSLY WITH A RECORD CHANGE TO ALL PAY WHICH WOULD OTHERWISE HAVE BECOME DUE UNDER APPLICABLE PROVISIONS OF LAW ON THE BASIS OF THE FACTS REFLECTED IN THE RECORD AS CORRECTED IN HIS CASE. CONSEQUENTLY, MAJOR BODNER MUST BE DEEMED TO BE LEGALLY ENTITLED TO RECEIVE RETIREMENT PAY COMPUTED ON A BASIS WHICH WOULD BE MOST ADVANTAGEOUS TO HIM.

UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, A MEMBER RETIRED BECAUSE OF PHYSICAL DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE ACT HAD THE RIGHT TO ELECT WITHIN 5 YEARS FROM THE DATE OF THE ACT HAD THE RIGHT TO ELECT WITHIN 5 YEARS FROM THE DATE OF THE ACT (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER TITLE IV OF THE ACT OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT.

UNDER SECTION 402 (D) A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED AT HIS ELECTION BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIS PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF RETIREMENT BY (1) THE NUMBER OF YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AT THE TIME OF RETIREMENT. THUS, SECTION 411, GIVING THOSE MEMBERS WHO HAD RETIRED FOR DISABILITY PRIOR TO THE DATE OF THE ACT THE RIGHT TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT UNDER TITLE IV OF THE ACT, HAD THE EFFECT OF GIVING THEM THE FURTHER ELECTION TO HAVE THEIR RETIRED PAY COMPUTED ON EITHER A YEARS OF SERVICE OR A PERCENTAGE OF DISABILITY BASIS AS PROVIDED IN SECTION 402 (D).

THE COURT OF CLAIMS HAS DETERMINED THAT UNDER SECTION 402 (D) A MEMBER IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE "PERMANENT RANK" HELD BY HIM AT THE TIME OF RETIREMENT WHETHER OR NOT HE EVER SERVED ON ACTIVE DUTY IN THAT RANK. SEE TRACY V. UNITED STATES, 136 CT.1CL. 211; LOWELL V. UNITED STATES, 141 CT.1CL. 111, AND BUDD V. UNITED STATES, 141 CT.1CL. 123. SINCE MAJOR BODNER HELD A PERMANENT RESERVE APPOINTMENT IN THE GRADE OF LIEUTENANT COLONEL AT THE TIME OF HIS RETIREMENT FOR DISABILITY AND AN ELECTION TO RECEIVE DISABILITY RETIRED PAY BASED ON A YEARS OF SERVICE COMPUTATION IN THAT GRADE WOULD RESULT IN A RETIRED PAY RATE MOST ADVANTAGEOUS TO HIM, THE VOUCHER, WHICH IS ENCLOSED, MAY BE PAID, IF OTHERWISE CORRECT.