B-164431, AUGUST 22, 1968, 48 COMP. GEN. 99

B-164431: Aug 22, 1968

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WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF APRIL 3. SUBSEQUENTLY ELECTING TO HAVE HIS RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. WHERE HE IS CURRENTLY SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442. 1951 IN THE ARMY RESERVES AND WAS APPOINTED ON MAY 5. WHERE HE CURRENTLY IS SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442. WHICHEVER IS GREATER. WHEN HE WAS APPOINTED TO THE REGULAR ARMY. WHERE HE CURRENTLY IS SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442. IF THE CONDITIONS OF CLAUSE (2) OF SECTION 1402 (C) REGARDING ADDITIONAL PHYSICAL DISABILITY ARE MET.

B-164431, AUGUST 22, 1968, 48 COMP. GEN. 99

PAY - RETIRED - DISABILITY - RETIREMENT PAY AS MEMBER OF ARMY OF THE UNITED STATES - SUBSEQUENT ACTIVE SERVICE THE TERMINATION OF THE "AUS STATUS" OF A MEMBER OF THE UNIFORMED SERVICES WHO AFTER SERVING AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES FROM JULY 16, 1942, THROUGH OCTOBER 4, 1946, WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF APRIL 3, 1939, SUBSEQUENTLY ELECTING TO HAVE HIS RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND SERVING ON ACTIVE DUTY AS A RESERVE OFFICER FROM SEPTEMBER 6, 1951 UNTIL APPOINTED AS A REGULAR OFFICER ON MAY 5, 1958, OCCURRED MARCH 31, 1953 PURSUANT TO PUBLIC LAW 86-197, AND NOT MAY 5, 1958, BY REASON OF HIS ACCEPTANCE OF AN APPOINTMENT IN THE REGUALR ARMY, WHERE HE IS CURRENTLY SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442. PAY - RETIRED - RE-RETIREMENT - RECOMPUTATION OF RETIRED PAY AN OFFICER OF THE ARMY OF THE UNITED STATES ENTITLED TO THE DISABILITY RETIREMENT BENEFITS OF SECTION 5, ACT OF APRIL 3, 1939--- SUBSEQUENTLY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949--- WHO ENTERED ON ACTIVE DUTY SEPTEMBER 6, 1951 IN THE ARMY RESERVES AND WAS APPOINTED ON MAY 5, 1958 TO THE REGULAR ARMY, WHERE HE CURRENTLY IS SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442, UPON RETIREMENT MAY BE PAID EITHER THE RETIRED PAY PERTAINING TO HIS "NEW" RETIRED STATUS OR THE RETIRED PAY BENEFITS TO WHICH ENTITLED TO BY VIRTUE OF THE ACT OF APRIL 3, 1939, AS AMENDED, WHICHEVER IS GREATER. PAY - RETIRED - DISABILITY - RECOMPUTATION OF RETIRED PAY AN OFFICER OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY PURSUANT TO THE ACT OF APRIL 3, 1939, WHO SUBSEQUENTLY ELECTED DISABILITY RETIREMENT PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AND THEN SERVED AS AN ARMY RESERVE OFFICER FROM SEPTEMBER 6, 1951 TO MAY 5, 1958, WHEN HE WAS APPOINTED TO THE REGULAR ARMY, WHERE HE CURRENTLY IS SERVING IN THE RANK OF LIEUTENANT COLONEL UNDER A TEMPORARY APPOINTMENT PURSUANT TO 10 U.S.C. 3442, UPON RETIREMENT WOULD BE ENTITLED TO RETIRED PAY RECOMPUTED UNDER 10 U.S.C. 1402 (D), IF THE CONDITIONS OF CLAUSE (2) OF SECTION 1402 (C) REGARDING ADDITIONAL PHYSICAL DISABILITY ARE MET; IF NOT, THE OFFICER'S RETIRED PAY STATUS IS FOR CONSIDERATION UNDER SECTION 1402 (A), SUBJECT TO FOOTNOTE 1, AND TO THE PROVISIONS OF 37 U.S.C. 205 (A).

TO THE SECRETARY OF THE ARMY, AUGUST 22, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 22, 1968, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) REQUESTING AN ADVANCE DECISION (SUBMISSION NO. SS A-969) ON CERTAIN QUESTIONS INVOLVING THE RETIRED PAY STATUS OF LIEUTENANT COLONEL ROBERT W. GRIFFIN (01 287 866, 080 810), UNITED STATES ARMY.

IT APPEARS THAT COLONEL GRIFFIN SERVED ON ACTIVE DUTY AS AN ENLISTED MEMBER OF THE ARMY FROM JANUARY 26, 1937 TO JULY 15, 1942, INCLUSIVE. JULY 16, 1942, HE BECAME A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES AND HE SERVED ON ACTIVE DUTY IN THAT CAPACITY THROUGH OCTOBER 4, 1946. HE WAS CERTIFIED AS ELIGIBLE, EFFECTIVE FROM OCTOBER 5, 1946, FOR THE DISABILITY RETIREMENT PAY BENEFITS AUTHORIZED BY SECTION 5, ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1946 ED.). UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, 37 U.S.C. 281 (1952 ED.), HE ELECTED TO QUALIFY FOR AND RECEIVE RETIREMENT PAY BENEFITS EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT, 37 U.S.C. 272 (D) (1952 ED.), BASED ON A DISABILITY RATING OF 60 PERCENT.

HIS APPOINTMENTS IN THE GRADE OF SECOND LIEUTENANT EFFECTIVE JULY 16, 1942, AND IN THE GRADE OF CAPTAIN EFFECTIVE FEBRUARY 17, 1945, IN THE ARMY OF THE UNITED STATES APPEAR TO HAVE BEEN ACCOMPLISHED UNDERAUTHORITY OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728. THE REPEAL OF THAT RESOLUTION BY SECTION 2A OF THE JOINT RESOLUTION OF JULY 25, 1947, CH. 327, 61 STAT. 451, WHICH REPEAL TOOK EFFECT ON JULY 1, 1948, OPERATED TO TERMINATE HIS STATUS AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES AS OF JUNE 30, 1948. LEROY J. ABT V UNITED STATES, 146 CT.CL. 205 (1959). HOWEVER, SECTION 2 OF PUBLIC LAW 86-197, AUGUST 25, 1959, 73 STAT. 426, 10 U.S.C. 3441 NOTE, PROVIDED THAT ALL APPOINTMENTS MADE AFTER DECEMBER 6, 1941, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE JOINT RESULUTION OF SEPTEMBER 22, 1941, THAT WERE NOT EARLIER TERMINATED BY ADMINISTRATIVE ACTION OR SPECIFIC PROVISION OF LAW "* * * MAY BE CONSIDERED FOR ALL PURPOSES TO HAVE CONTINUED IN EFFECT UNTIL THE CLOSE OF MARCH 31, 1953.' THUS, UNDER PUBLIC LAW 86-197, HIS STATUS AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES CONTINUED IN FORCE THROUGH MARCH 31, 1953, UNLESS SUCH STATUS WAS EARLIER TERMINATED BY ADMINISTRATIVE ACTION OR SPECIFIC PROVISION OF LAW.

IT IS REPORTED THAT COLONEL GRIFFIN WAS: APPOINTED CPT INF USAR 1 AUGUST 1951; ACCEPTED USAR APPOINTMENT 27 AUGUST 1951; ENTERED ON ACTIVE DUTY 6 SEPTEMBER 1951; APPOINTED CPT INFANTRY, REGULAR ARMY 5 MAY 1958; D/R 7 JANUARY 1954 TO MAJ 9 JULY 1961; TO LTC AUS 12 APRIL 1962. IT FURTHER APPEARS THAT HE HAS REMAINED ON ACTIVE DUTY SINCE SEPTEMBER 6, 1951, AND PRESENTLY IS SERVING IN THE RANK OF LIEUTENANT COLONEL, A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, AS AUTHORIZED IN 10 U.S.C. 3442.

ALTHOUGH COLONEL GRIFFIN HAS NOT SUBMITTED AN APPLICATION FOR RETIREMENT YOU REQUEST INFORMATION CONCERNING HIS PROSPECTIVE RETIRED PAY STATUS BY REASON OF DOUBT WHETHER:

A. THE ACCEPTANCE OF THE REGULAR ARMY APPOINTMENT TERMINATED OR VACATED THE OFFICER'S AUS STATUS.

B. THE OFFICER WOULD ACQUIRE A "NEW" RETIRED STATUS, AND IN SUCH A CASE THE PROPER BASIS FOR THE COMPUTATION OF THE OFFICER'S "NEW" RETIRED PAY WOULD BE FOR DETERMINATION SOLELY UNDER THE APPLICABLE PROVISIONS OF LAW WHICH ARE IN FORCE AND EFFECT ON THE NEW RETIREMENT DATE, IN THE EVENT ACTIVE DUTY IS TERMINATED EITHER AS A RESULT OF AN APPLICATION FOR RETIREMENT OR BY ACTION OF AN APPROVED PHYSICAL EVALUATION BOARD.

C. UPON RELEASE FROM ACTIVE DUTY, THE OFFICER WOULD BE REVERTED TO HIS FORMER DISABILITY RETIREMENT STATUS WITH ENTITLEMENT TO RETIREMENT PAY RECOMPUTED UNDER AUTHORITY OF TITLE 10, U.S. CODE 1402 (A) OR (C).

IN THE FIRST QUESTION DOUBT IS EXPRESSED WHETHER COLONEL GRIFFIN'S ACCEPTANCE ON MAY 5, 1958, OF AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY VACATED HIS "AUS STATUS.' THE ,AUS STATUS" REFERRED TO IN THIS QUESTION APPEARS TO BE HIS COMMISSIONED STATUS IN THE ARMY OF THE UNITED STATES WHICH AROSE IN 1942 WHEN HE WAS APPOINTED A SECOND LIEUTENANT UNDER AUTHORITY OF THE JOINT RESOLUTION OF SEPTEMBER 22, 1941. AS PREVIOUSLY POINTED OUT THE OFFICER'S STATUS AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES TERMINATED NOT LATER THAN MARCH 31, 1953.

POSSIBLY THIS QUESTION IS DIRECTED TO THE MATTER OF WHETHER COLONEL GRIFFIN'S BASIC ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY (WHEN NOT ON ACTIVE DUTY) UNDER AUTHORITY OF THE ACT OF APRIL 3, 1939, WAS TERMINATED UPON HIS ACCEPTANCE ON MAY 5, 1958, OF AN APPOINTMENT AS A COMMISSIONED OFFICER IN THE REGULAR ARMY. THE ANSWER TO THAT QUESTION IS IN THE NEGATIVE. SEE 23 COMP. GEN. 284, 286, AND 40 COMP. GEN. 541. QUESTION A IS ANSWERED ACCORDINGLY.

IN THE EVENT COLONEL GRIFFIN IS FOUND TO BE QUALIFIED FOR RETIREMENT UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, CURRENTLY IN EFFECT, THE SECOND QUESTION RAISES TWO ISSUES:

(1) WHETHER, IF OTHERWISE QUALIFIED, HE WOULD BE ELIGIBLE TO BE RETIRED PURSUANT TO SUCH PROVISIONS, AND

(2) WHETHER HE WOULD ACQUIRE A "NEW" RETIREMENT STATUS AND THEREUPON BECOME ENTITLED TO RECEIVE RETIREMENT PAY COMPUTED ON THE BASIS OF THE RATES OF ACTIVE DUTY BASIC PAY IN FORCE AND EFFECT ON THE DATE SUCH "NEW" RETIREMENT STATUS BECOMES EFFECTIVE.

THE ANSWER TO BOTH ISSUES IS IN THE AFFIRMATIVE SUBJECT, OF COURSE, TO THE RULE THAT THE LAW DOES NOT CONTEMPLATE PAYMENT OF TWO MILITARY RETIRED PAYS FOR THE SAME PERIOD. IN OTHER WORDS, THE OFFICER COULD BE PAID RETIRED PAY PERTAINING TO HIS "NEW" RETIRED STATUS OR RECEIVE THE RETIRED PAY BENEFITS TO WHICH HE IS ENTITLED BY VIRTUE OF THE ACT OF APRIL 3, 1939, WHICHEVER IS GREATER. 36 COMP. GEN. 399, 401. COMPARE 9 COMP. GEN. 399, 403, AND SEE ROBERT E. PATE V UNITED STATES, 78 CT.CL. 395 (1933). QUESTION B IS ANSWERED ACCORDINGLY.

AS PREVIOUSLY STATED, COLONEL GRIFFIN ELECTED UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT. HE ENTERED AN ACTIVE DUTY STATUS ON SEPTEMBER 6, 1951, UNDER A NEW APPOINTMENT IN THE MILITARY SERVICE AND HE HAS SERVED ON ACTIVE DUTY SINCE THAT DATE. DOUBT IS EXPRESSED IN QUESTION C WHETHER, UPON HIS PROSPECTIVE RELEASE (RETIREMENT) FROM ACTIVE DUTY, COLONEL GRIFFIN WILL REVERT "* * * TO HIS FORMER DISABILITY RETIREMENT STATUS WITH ENTITLEMENT TO RETIREMENT PAY RECOMPUTED UNDER AUTHORITY OF TITLE 10, U.S.C. 1402 (A) OR (C).'

COLONEL GRIFFIN'S DISABILITY RETIREMENT PAY STATUS UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, COUPLED WITH HIS SECTION 411 ELECTION UNDER THE CAREER COMPENSATION ACT OF 1949 TO QUALIFY FOR AND RECEIVE DISABILITY RETIREMENT PAY COMPUTED AS PRESCRIBED IN SECTION 402 (D) OF THE 1949 LAW, REASONABLY MAY BE VIEWED AS BRINGING HIM WITHIN THE PURVIEW OF CLAUSES (1) AND (3) IN SECTION 1402 (C), TITLE 10, U.S.C CODE. HOWEVER, UNDER CLAUSE (2) ELIGIBILITY TO RECEIVE THE BENEFITS OF SECTION 1402 (C) IS CONTINGENT UPON WHETHER THE MEMBER CONCERNED:

(2) INCURS, WHILE ON ACTIVE DUTY AFTER RETIREMENT OR AFTER HIS NAME WAS PLACED ON THAT LIST, A PHYSICAL DISABILITY THAT IS IN ADDITION TO OR THAT AGGRAVATES THE PHYSICAL DISABILITY FOR WHICH HE WAS RETIRED * * *.

THE INFORMATION CONCERNING COLONEL GRIFFIN SET FORTH IN THE LETTER OF MAY 22, 1968, DOES NOT INDICATE WHETHER HE MEETS THE CONDITIONS SPECIFIED IN CLAUSE (2) OF SECTION 1402 (C). IF HE SHOULD MEET THESE CONDITIONS UPON HIS PROSPECTIVE RELEASE FROM ACTIVE DUTY HE WOULD BE ENTITLED TO RECOMPUTE HIS RETIRED PAY UNDER THE FORMULA PRESCRIBED IN SUBSECTION (D) AS AUTHORIZED IN SECTION 1402 (C).

IN THE EVENT THAT HE DOES NOT MEET THE CONDITIONS OF CLAUSE (2) OF SECTION 140I (C) THEN HIS RETIRED PAY STATUS WOULD APPEAR TO BE FOR CONSIDERATION UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A), FORMERLY SECTION 516, CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 833. IN RECOMPUTING RETIRED PAY UNDER SECTION 1402 (A), THE SPECIFIC PROVISIONS OF FOOTNOTE 1 APPLY AS WELL AS THE PROVISIONS OF 37 U.S.C. 205 (A), WHICH IN PERTINENT PART PROVIDE:

EXCEPT FOR ANY PERIOD OF ACTIVE SERVICE DESCRIBED IN CLAUSE (1) OF THIS SUBSECTION AND EXCEPT AS PROVIDED BY SECTION 1402 (B/-/D) OF TITLE 10, A PERIOD OF SERVICE DESCRIBED IN CLAUSES (2/-/9) OF THIS SUBSECTION THAT IS PERFORMED WHILE ON A RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AMY NOT BE INCLUDED TO INCREASE RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY. * * * QUESTION C IS ANSWERED ACCORDINGLY.

IN SUMMARY, IT MAY BE STATED THAT COLONEL GRIFFIN WOULD BE ENTITLED TO WHICHEVER ONE OF THE FOLLOWING THREE METHODS THAT RESULTS IN THE GREATER AMOUNT OF RETIRED PAY:

(1) THE DISABILITY RETIREMENT PAY BENEFITS AUTHORIZED FOR HIM BY THE ACT OF APRIL 3, 1939, AND HIS ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT IN THE AMOUNT HE WAS RECEIVING ON SEPTEMBER 5, 1951, AS INCREASED BY SUBSEQUENT RETIRED PAY LEGISLATION, OR

(2) IF HE ACQUIRES A NEW RETIRED PAY STATUS HE WOULD BE ENTITLED TO RETIRED PAY COMPUTED UNDER THE PROVISIONS OF LAW IN FORCE AND EFFECT ON THE DATE OF HIS RELEASE FROM ACTIVE DUTY, OR

(3) HE MAY RECOMPUTE HIS DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A) OR (C), AS APPLICABLE.