B-155911, MAR. 16, 1965

B-155911, MAR. 16, 1965

TO SERGEANT FIRST CLASS FRANCISCO DAYAG, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1964, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY. YOU SAY THAT SINCE MARCH 19, 1949, YOU HAVE BEEN RECEIVING RETIRED PAY OF $38.00 BASED ON PHILIPPINE SCOUT PAY RATES AND YOU REQUEST THAT YOUR CASE BE REVIEWED AND THAT YOUR RETIRED PAY BE INCREASED UNDER THE NEW RETIRED PAY LAWS.

THE REGULATIONS RELATING TO PAY AND ALLOWANCES OF PHILIPPINE SCOUTS ARE CONTAINED IN ARMY REGULATIONS 35-2730, JANUARY 23, 1948. THE PERTINENT PART OF SECTION 11 OF THE ACT OF JUNE 16, 1942, CH. 413, 56 STAT. 364, AS SET FORTH IN PARAGRAPH 1B OF THOSE REGULATIONS, READS AS FOLLOWS:

"THE PAY AND ALLOWANCES OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS SHALL BE FIXED BY THE SECRETARY OF THE ARMY AND SHALL NOT EXCEED OR BE OF OTHER CLASSES THAN THOSE NOW OR WHICH MAY HEREAFTER BE AUTHORIZED BY LAW FOR ENLISTED MEN OF THE REGULAR ARMY.'

PARAGRAPH 2 OF THOSE REGULATIONS PROVIDED THAT THE RETIRED PAY OF PHILIPPINE SCOUTS "WILL BE COMPUTED AS PRESCRIBED IN AR 35-2640 ON THE BASIS OF RATES OF PAY FIXED EFFECTIVE 1 JUNE 1946.'

SECTION 4 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 539, AS AMENDED, 10 U.S.C. 948 (1946 ED.), READS IN PERTINENT PART AS FOLLOWS:

"WHENEVER ANY ENLISTED MEN OF THE REGULAR ARMY SHALL HAVE COMPLETED A MINIMUM OF TWENTY BUT LESS THAN THIRTY YEARS OF ACTIVE FEDERAL SERVICE, HE MAY, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS AND THEREUPON WILL BE PLACED ON THE RETIRED LIST OF THE REGULAR ARMY. AN ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE * * * MONTHLY RETIRED PAY AT THE RATE OF 2 1/2 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE ENLISTED GRADE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, NOT TO EXCEED THIRTY YEARS. * * * AND PROVIDED FURTHER, THAT ANY FRACTIONAL PART OF A YEAR AMOUNTING TO SIX MONTHS OR MORE SHALL BE COUNTED AS A COMPLETE YEAR FOR THE PURPOSE OF COMPUTING RETIRED PAY, BUT SHALL NOT BE COUNTED FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT UNDER THIS SECTION.'

SUCH STATUTORY PROVISIONS ARE SET FORTH IN SECTION 2 OF ARMY REGULATIONS 35-2640, JANUARY 13, 1947.

THE MISSING PERSONS ACT, AS AMENDED, WAS FURTHER AMENDED BY THE ACT OF AUGUST 29, 1957, PUB.L. 85-217, 71 STAT. 491, 492, WITH AN EFFECTIVE DATE OF SEPTEMBER 8, 1939, TO PROVIDE THAT ENTITLEMENT TO PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT SHOULD NOT BE DENIED IN THE CASE OF ANY MEMBER OF THE PHILIPPINE SCOUTS WHO WAS CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY DURING WORLD WAR II, SOLELY ON THE GROUND THAT SUCH MEMBER WAS PAROLED AND PERMITTED TO RETURN TO HIS HOME AND ENGAGE IN CIVILIAN PURSUITS PRIOR TO THE TERMINATION OF THE JAPANESE OCCUPATION OF SUCH ISLANDS. THEREAFTER, THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, CERTIFIED YOU ELIGIBLE FOR RETIREMENT RETROACTIVE TO MARCH 31, 1949, AND YOU WERE CREDITED WITH 20 YEARS, 6 MONTH, AND 24 DAYS OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES. YOUR MONTHLY RETIRED PAY WAS BASED ON THE MONTHLY ACTIVE DUTY PAY RATE OF $74.10 WHICH THE SECRETARY OF THE ARMY FIXED, EFFECTIVE JUNE 1, 1946, AS THE PAY OF A TECHNICAL SERGEANT (LATER DESIGNATED AS SERGEANT FIRST CLASS), PHILIPPINE SCOUTS, WITH OVER 18 YEARS OF SERVICE AND UNDER 21 YEARS OF SERVICE. THE MONTHLY RATE OF YOUR RETIRED PAY, $38.90, WAS COMPUTED BY MULTIPLYING $74.10 BY 2 1/2 PERCENT BY 21 YEARS (MORE THAN 20 YEARS AND 6 MONTHS COUNTED AS 21 YEARS).

THAT PART OF SECTION 11 OF THE ACT OF JUNE 16, 1942, WHICH RELATED TO THE PAY OF PHILIPPINE SCOUTS WAS SUPERSEDED WITHOUT SUBSTANTIVE CHANGE, BY SECTION 507 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 828. SINCE THE CONGRESS HAS THERE EXPRESSLY GIVEN THE SECRETARY OF THE ARMY THE POWER TO FIX THE PAY AND ALLOWANCES "OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS," AND SINCE THE SECRETARY OF THE ARMY HAS NOT INCREASED EITHER THE ACTIVE DUTY PAY OR THE RETIRED PAY OF THE PHILIPPINE SCOUTS SINCE 1946, IT IS OUR VIEW THAT THERE IS NO BASIS FOR COMPUTING YOUR RETIRED PAY UNDER ANY OTHER ACT OR ACTS RELATING TO THE PAYMENT OF RETIRED PAY.

ACCORDINGLY, THE SETTLEMENT OF MAY 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY, IS SUSTAINED.