B-156586, JUN. 8, 1965

B-156586: Jun 8, 1965

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DE PENEYRA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25. IT APPEARS THAT YOU BELIEVE THAT YOUR HUSBAND'S RETIRED PAY SHOULD HAVE BEEN COMPUTED ON THE RATES OF PAY PROVIDED FOR ENLISTED MEN OF THE ARMY OF THE UNITED STATES BY THE PAY READJUSTMENT ACT OF JUNE 16. WAS AMENDED BY THE ACT OF MAY 10. YOUR HUSBAND WAS PAID RETIRED PAY COMPUTED ON RATES OF PAY FIXED IN ACCORDANCE WITH SUCH STATUTORY PROVISIONS. THERE IS NO BASIS FOR COMPUTING YOUR HUSBAND'S RETIRED PAY ON THE RATES OF PAY PROVIDED FOR ENLISTED MEN OF THE ARMY OF THE UNITED STATES BY THE ACT OF JUNE 16.

B-156586, JUN. 8, 1965

TO MRS. MARIA L. VDA. DE PENEYRA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1965, REQUESTING REVIEW OF SETTLEMENT OF SEPTEMBER 15, 1964, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE INCIDENT TO THE MILITARY SERVICE OF YOUR LATE HUSBAND, HILARIO PENEYRA, PHILIPPINE SCOUT, RETIRED, DECEASED. IT APPEARS THAT YOU BELIEVE THAT YOUR HUSBAND'S RETIRED PAY SHOULD HAVE BEEN COMPUTED ON THE RATES OF PAY PROVIDED FOR ENLISTED MEN OF THE ARMY OF THE UNITED STATES BY THE PAY READJUSTMENT ACT OF JUNE 16, 1942, CH. 413, 56 STAT. 359, AND BY THE AMENDATORY ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343.

THE LAST SENTENCE OF THE SECOND PARAGRAPH OF SECTION 36 OF THE ACT OF FEBRUARY 2, 1901, CH. 192, 31 STAT. 757, WAS AMENDED BY THE ACT OF MAY 10, 1926, CH. 279, 44 STAT. 496, TO READ, IN PERTINENT PART, 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 WAR (NOW 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 * * *.'

SECTION 11 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, CONTAINS IDENTICAL PROVISIONS. THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY SHOW THAT, FROM SEPTEMBER 1, 1937, TO FEBRUARY 29, 1948, YOUR HUSBAND WAS PAID RETIRED PAY COMPUTED ON RATES OF PAY FIXED IN ACCORDANCE WITH SUCH STATUTORY PROVISIONS.

SINCE THE POWER TO FIX THE PAY AND ALLOWANCES "OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR THE ENLISTED MEN OF THE PHILIPPINE SCOUTS" HAS EXPRESSLY BEEN GIVEN BY THE CONGRESS TO THE SECRETARY OF THE ARMY, AND SINCE SUCH SECRETARY HAS NOT INCREASED EITHER THE ACTIVE DUTY PAY OR THE RETIRED PAY OF THE PHILIPPINE SCOUTS SINCE JUNE 1, 1946, THERE IS NO BASIS FOR COMPUTING YOUR HUSBAND'S RETIRED PAY ON THE RATES OF PAY PROVIDED FOR ENLISTED MEN OF THE ARMY OF THE UNITED STATES BY THE ACT OF JUNE 16, 1942, OR BY THE ACT OF JUNE 29, 1946.