B-153909, MAY 14, 1964

B-153909: May 14, 1964

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SIXTO BARBADILLO: REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. WHICH DISALLOWED YOUR CLAIM FOR RETIREMENT BENEFITS OR ALLOWANCES TO WHICH YOU BELIEVE YOU ARE ENTITLED INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY (PHILIPPINE SCOUTS) ON NOVEMBER 30. IT WAS POINTED OUT IN THE SETTLEMENT OF JANUARY 6. "SHALL HAVE SERVED" 30 YEARS AS THERE SPECIFIED. WAS ALSO THERE POINTED OUT. - "THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY. THE RECORDS SHOW THAT MOST OF YOUR MILITARY SERVICE WAS IN THE PHILIPPINE SCOUTS AND THAT. YOU WERE RECEIVING MONTHLY ACTIVE DUTY PAY OF $103.50. WHICH WAS THE BASE AND LONGEVITY PAY OF A FIRST SERGEANT OF THE PHILIPPINE SCOUTS WITH OVER 30 YEARS' SERVICE.

B-153909, MAY 14, 1964

TO MR. SIXTO BARBADILLO:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1964, REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 6, 1964, WHICH DISALLOWED YOUR CLAIM FOR RETIREMENT BENEFITS OR ALLOWANCES TO WHICH YOU BELIEVE YOU ARE ENTITLED INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY (PHILIPPINE SCOUTS) ON NOVEMBER 30, 1947, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, CH. 2515, 34 STAT. 1217.

IT WAS POINTED OUT IN THE SETTLEMENT OF JANUARY 6, 1964, THAT THE ACT OF MARCH 2, 1907, ORIGINALLY PROVIDED THAT WHEN AN ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS,"SHALL HAVE SERVED" 30 YEARS AS THERE SPECIFIED, HE SHOULD, UPON HIS APPLICATION, BE PLACED UPON THE RETIRED LIST, WITH 75 PERCENT OF THE PAY AND ALLOWANCES HE MIGHT THEN BE IN RECEIPT OF, AND THAT SAID ALLOWANCES SHOULD BE AS FOLLOWS: $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND $6.25 PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT. WAS ALSO THERE POINTED OUT, HOWEVER, THAT SECTION 19 OF THE ACT OF JUNE 16, 1942, CH. 413, 56 STAT. 369, REPEALED THAT PART OF THE ACT OF MARCH 2, 1907, WHICH AUTHORIZED ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST. THUS, THE 1907 ACT, AS IN EFFECT AT THE TIME OF YOUR RETIREMENT ON NOVEMBER 30, 1947, PROVIDED PERTINENTLY---

"THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENTUM OF THE PAY HE MAY THEN BE IN RECEIPT OF * * *.'

THE RECORDS SHOW THAT MOST OF YOUR MILITARY SERVICE WAS IN THE PHILIPPINE SCOUTS AND THAT, ALTHOUGH YOU SERVED AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT FROM APRIL 21, 1945, TO NOVEMBER 8, 1946, YOU REENLISTED IN THE PHILIPPINE SCOUTS, ON NOVEMBER 9, 1946, AND SERVED AS A PHILIPPINE SCOUT UNTIL YOUR RETIREMENT ON NOVEMBER 30, 1947. AT THE TIME OF YOUR RETIREMENT, YOU WERE RECEIVING MONTHLY ACTIVE DUTY PAY OF $103.50, WHICH WAS THE BASE AND LONGEVITY PAY OF A FIRST SERGEANT OF THE PHILIPPINE SCOUTS WITH OVER 30 YEARS' SERVICE.

WHILE IT MAY BE THAT YOU WERE ELIGIBLE FOR RETIREMENT DURING THE SHORT PERIOD OF YOUR SERVICE IN THE ARMY OF THE UNITED STATES, YOU WERE NOT RETIRED AT THAT TIME. PLAINLY, YOUR RETIREMENT ON NOVEMBER 30, 1947, WAS FROM SERVICE IN THE PHILIPPINE SCOUTS AND NOT FROM SERVICE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. UPON YOUR RETIREMENT, THEREFORE, YOU WERE, UNDER THE PROVISIONS OF THE 1907 ACT, AS AMENDED, ENTITLED TO MONTHLY RETIRED PAY IN THE AMOUNT OF $77.63 (75 PERCENT OF YOUR MONTHLY ACTIVE DUTY PAY OF $103.50). THE DEPARTMENT OF THE ARMY HAS REPORTED THAT YOU WERE PAID RETIRED PAY AT THAT RATE THROUGH APRIL 30, 1963, AND THAT, EFFECTIVE MAY 1, 1963, YOU ELECTED TO WAIVE RETIRED PAY IN FAVOR OF VETERANS ADMINISTRATION COMPENSATION IN THE AMOUNT OF $95 PER MONTH.

IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT OF JANUARY 6, 1964, YOU SAY THAT YOU ARE CLAIMING AN ALLOWANCE OF $9.50 PER MONTH IN LIEU OF RATIONS AND CLOTHING AND AN ALLOWANCE OF $6.25 PER MONTH IN LIEU OF QUARTERS, FUEL, AND LIGHT. YOU INDICATE, HOWEVER, THAT YOU ARE BASING YOUR REQUEST FOR REVIEW ON THE GROUND THAT YOUR SERVICE IN THE UNITED STATES ARMY WAS THE SAME IN NATURE AS THE SERVICE OF SERGEANT LEOCADIO CANANO. YOU SAY THAT HE, AFTER SERVING IN THE PHILIPPINE SCOUTS FOR 32 YEARS, WAS RETIRED IN 1946, AND THAT HE WAS GIVEN THE ALLOWANCES YOU ARE CLAIMING.

THE RECORDS SHOW THAT LEOCADIO CANANO WAS RETIRED ON JUNE 30, 1946, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, AS AMENDED, AND THAT, ALTHOUGH HE HAD PREVIOUSLY SERVED IN THE PHILIPPINE SCOUTS, HE WAS NOT SERVING IN THAT ORGANIZATION AT THE TIME OF HIS RETIREMENT, BUT WAS SERVING AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND WAS RECEIVING THE ACTIVE DUTY PAY OF A SERGEANT WITH OVER 30 YEARS' SERVICE. SUCH RECORDS FURTHER SHOW THAT AT THE TIME OF HIS RETIREMENT HIS RETIRED PAY WAS COMPUTED ON THE PAY AUTHORIZED FOR A SERGEANT, PHILIPPINE SCOUTS, AND IT APPEARS THAT SUCH ACTION WAS BASED ON A DETERMINATION THAT HIS RETIREMENT WAS EFFECTED IN A PHILIPPINE SCOUT STATUS. IT LATER WAS DETERMINED, HOWEVER, THAT SINCE HE WAS SERVING AS A SERGEANT, ARMY OF THE UNITED STATES, AT THE TIME OF HIS RETIREMENT, HE WAS ENTITLED, UNDER THE PROVISIONS OF THE 1907 ACT, AS AMENDED, TO MONTHLY RETIRED PAY OF $112.50 (75 PERCENT OF $150, THE MONTHLY BASE AND LONGEVITY PAY PROVIDED FOR A SERGEANT, ARMY OF THE UNITED STATES, WITH OVER 30 YEARS' SERVICE). HIS RETIRED PAY WAS ADJUSTED ACCORDINGLY, RETROACTIVE TO THE DATE OF HIS RETIREMENT, BUT SUCH RETIRED PAY, AS ADJUSTED, DID NOT INCLUDE ANY BENEFITS OR ALLOWANCES SUCH AS THOSE WHICH YOU ARE NOW CLAIMING.

SINCE THE ACT OF MARCH 2, 1907, AS AMENDED, DID NOT AT THE TIME OF YOUR RETIREMENT PROVIDE FOR THE ALLOWANCES YOU ARE CLAIMING AND SINCE YOU WERE RETIRED AS AN ENLISTED MAN OF THE PHILIPPINE SCOUTS, AND NOT AS AN ENLISTED MAN OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 6, 1964, IS ..END :