B-158633, MAR. 31, 1966

B-158633: Mar 31, 1966

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. THE OFFICER WAS GIVEN A TERMINAL LEAVE PROMOTION TO THE GRADE OF CAPTAIN AND BASED ON THAT PROMOTION HE SUBSEQUENTLY CLAIMED AND WAS PAID THE DIFFERENCE IN ACTIVE DUTY PAY AND ALLOWANCES BETWEEN THE GRADES OF CAPTAIN AND FIRST LIEUTENANT FOR THE PERIOD NOVEMBER 5. WERE CORRECTED TO SHOW DISABILITY RETIREMENT UNDER THE 1939 ACT AND TO SHOW FURTHER THAT PRIOR TO RELEASE HE HAD BEEN GIVEN A TERMINAL LEAVE PROMOTION. WE HELD THAT HIS RETIREMENT PAY WAS PROPERLY FOR COMPUTATION ON THE GRADE TO WHICH PROMOTED SINCE THAT WAS THE ACTUAL RANK HELD BY HIM ON THE DATE OF HIS RETIREMENT. THERE WAS RECEIVED IN THE CLAIMS DIVISION OF OUR OFFICE A CLAIM FROM CAPTAIN MOYE FOR ADJUSTMENT IN HIS RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN RATHER THAN THE GRADE OF FIRST LIEUTENANT.

B-158633, MAR. 31, 1966

TO FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1966, WITH ENCLOSURES, TRANSMITTED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER A-897, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $4,879.15, TO CAPTAIN JAMES E. MOYE, RETIRED, REPRESENTING AN ADJUSTMENT IN RETIRED PAY BETWEEN THE GRADES OF FIRST LIEUTENANT AND CAPTAIN FOR THE PERIOD NOVEMBER 21, 1945, THROUGH AUGUST 25, 1954, BASED ON THE CORRECTION OF HIS RECORDS UNDER 10 U.S.C. 1552.

CAPTAIN MOYE HAS RECEIVED DISABILITY RETIREMENT PAY PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, SINCE NOVEMBER 21, 1945, HAVING BEEN CERTIFIED TO THE VETERANS ADMINISTRATION AT THAT TIME FOR PAYMENT BASED ON THE GRADE OF FIRST LIEUTENANT. ON NOVEMBER 5, 1945, THE OFFICER WAS GIVEN A TERMINAL LEAVE PROMOTION TO THE GRADE OF CAPTAIN AND BASED ON THAT PROMOTION HE SUBSEQUENTLY CLAIMED AND WAS PAID THE DIFFERENCE IN ACTIVE DUTY PAY AND ALLOWANCES BETWEEN THE GRADES OF CAPTAIN AND FIRST LIEUTENANT FOR THE PERIOD NOVEMBER 5, 1945, TO DATE OF RELEASE, NOVEMBER 20, 1945.

IN THE CASE OF ANOTHER OFFICER WHOSE RECORDS, AFTER HIS RELEASE FROM ACTIVE DUTY, WERE CORRECTED TO SHOW DISABILITY RETIREMENT UNDER THE 1939 ACT AND TO SHOW FURTHER THAT PRIOR TO RELEASE HE HAD BEEN GIVEN A TERMINAL LEAVE PROMOTION, WE HELD THAT HIS RETIREMENT PAY WAS PROPERLY FOR COMPUTATION ON THE GRADE TO WHICH PROMOTED SINCE THAT WAS THE ACTUAL RANK HELD BY HIM ON THE DATE OF HIS RETIREMENT. B-116091, FEBRUARY 5, 1954.

ON AUGUST 26, 1964, THERE WAS RECEIVED IN THE CLAIMS DIVISION OF OUR OFFICE A CLAIM FROM CAPTAIN MOYE FOR ADJUSTMENT IN HIS RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN RATHER THAN THE GRADE OF FIRST LIEUTENANT. THE CLAIM WAS ALLOWED BY SETTLEMENT OF NOVEMBER 16, 1964, ON THE BASIS OF THE DECISION CITED ABOVE AND PAYMENT OF THE DIFFERENCE IN RETIRED PAY WAS AUTHORIZED FOR THE PERIOD AUGUST 26, 1954, THROUGH SEPTEMBER 30, 1964, THE PERIOD PRIOR TO AUGUST 26, 1954, BEING BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061.

ON SEPTEMBER 30, 1965, THE SECRETARY OF THE ARMY, ACTING UNDER 10 U.S.C. 1552, DIRECTED CORRECTION OF CAPTAIN MOYE'S ARMY RECORDS TO SHOW THAT THE CERTIFICATE OF OCTOBER 3, 1945, TO THE VETERANS ADMINISTRATION, CERTIFYING HIM FOR RETIREMENT PAY UNDER THE 1939 ACT IN THE GRADE OF FIRST LIEUTENANT, WAS AMENDED ON NOVEMBER 6, 1945, TO SHOW HIM CERTIFIED IN THE GRADE OF CAPTAIN. THE QUESTION PRESENTED BY YOU IS WHETHER SUCH CORRECTION OF RECORDS CREATED A RIGHT NOT PREVIOUSLY VESTED IN CAPTAIN MOYE, TO HAVE HIS RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN, SO AS TO AUTHORIZE PAYMENT OF THE ADJUSTMENT IN RETIRED PAY FOR THE PERIOD PRIOR TO AUGUST 26, 1954.

CAPTAIN MOYE'S ENTITLEMENT TO DISABILITY RETIREMENT PAY AROSE UNDER SECTION 5 OF THE 1939 ACT WHICH AUTHORIZED OFFICERS WHO QUALIFIED THEREUNDER TO RECEIVE "THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR ARMY.' IN 1945 OFFICERS OF THE REGULAR ARMY WHO BECAME INCAPACITATED IN LINE OF DUTY HAD THEIR RIGHTS DETERMINED UNDER SECTION 1251, R.S., 10 U.S.C. 933 (1940 ED.), WHICH AUTHORIZED DISABILITY RETIREMENT, SECTION 1254, R.S., 10 U.S.C. 1025 (1940 ED.), WHICH PROVIDED THAT SUCH OFFICERS SHOULD BE RETIRED "UPON THE ACTUAL RANK HELD BY THEM AT THE DATE OF RETIREMENT" AND SECTION 1274, R.S., 10 U.S.C. 971 (1940 ED.), WHICH PROVIDED THAT THEIR RETIRED PAY SHOULD BE COMPUTED AT 75 PER CENTUM OF THE PAY OF THE RANK UPON WHICH RETIRED.

UNDER AUTHORITY CONTAINED IN E.O. 8099, DATED APRIL 28, 1939, THE ACTUAL PAYMENT OF DISABILITY RETIREMENT PAY UNDER THE 1939 ACT AT THE TIME OF CAPTAIN MOYE'S RETIREMENT WAS EFFECTED BY THE VETERANS ADMINISTRATION UPON RECEIPT OF A CERTIFICATION FROM THE PROPERLY AUTHORIZED OFFICIAL IN THE WAR DEPARTMENT. THE LETTER OF CERTIFICATION CONSTITUTED AUTHORIZATION TO THE VETERANS ADMINISTRATION TO MAKE THE PAYMENTS IN QUESTION BUT THE LETTER ITSELF WAS ONLY EVIDENCE OF THE OFFICER'S ENTITLEMENT AND COULD NOT INCREASE OR DECREASE HIS STATUTORY RIGHTS. SINCE CAPTAIN MOYE, BY REASON OF HIS TERMINAL LEAVE PROMOTION, HELD THE RANK OF CAPTAIN AT THE TIME OF HIS RETIREMENT, THAT WAS THE ONLY RANK IN WHICH HE WAS AUTHORIZED TO BE RETIRED. THEREFORE THE CORRECTION OF HIS RECORDS IN 1965, TO SHOW THAT THE LETTER OF CERTIFICATION TO THE VETERANS ADMINISTRATION WAS AMENDED TO REFLECT THE GRADE ACTUALLY HELD BY HIM, DID NOT CREATE ANY NEW RIGHT. WAS ENTITLED TO RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN PRIOR TO SUCH CORRECTION ACTION, AS EVIDENCED BY THE SETTLEMENT OF NOVEMBER 16, 1964. UNDER THE PRINCIPLES EXPRESSED IN HAISLIP, ET AL. V. UNITED STATES, 152 CT.CL. 339 (1961) AND OUR DECISIONS, B-143582, DATED AUGUST 10, 1960, AND B-154873, DATED DECEMBER 17, 1964, SUCH CORRECTION FURNISHES NO BASIS FOR PAYMENT OF THE ADJUSTMENT IN RETIRED PAY FOR THE PERIOD PRIOR TO AUGUST 26, 1954, WHICH IS BARRED FROM CONSIDERATION BY THE 1940 ACT. THE VOUCHER SUBMITTED WITH YOUR LETTER, NOT BEING APPROVED FOR ..END :