B-175543, JUL 18, 1972

B-175543: Jul 18, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHEN HE WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST. CLAIMANT WAS DISCHARGED FROM THE SERVICE UNDER HONORABLE CONDITIONS UPON APRIL 8. CLAIMANT IS NOT ELIGIBLE FOR SAVED PAY. THE CLAIM IS DENIED. WHEN YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (TDRL) OF THE ARMY. YOU WERE HONORABLY DISCHARGED NOT BY REASON OF PHYSICAL DISABILITY FROM YOUR SIX- YEAR ENLISTMENT IN THE REGULAR ARMY WHICH OTHERWISE WOULD HAVE TERMINATED IN OCTOBER 1961. IT WAS INDICATED THAT YOU DESIRED TO REENLIST IN THE REGULAR ARMY. YOUR REENLISTMENT FOR A THREE-YEAR PERIOD WAS AUTHORIZED. STATES THAT YOU WERE FOUND UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY (30 PERCENT) AND YOU WERE RELIEVED OF YOUR ASSIGNMENT (MEDICAL HOLDING DETACHMENT.

B-175543, JUL 18, 1972

MILITARY PERSONNEL - SAVED PAY - ELIGIBILITY DECISION DISALLOWING THE CLAIM OF JOHN C. BROWN, SP4, USA, RETIRED, FOR ADDITIONAL PAY UNDER THE "SAVED PAY PROVISION" OF PUBLIC LAW 85 422, 72 STAT. 122, FOR SERVICE IN THE U.S. ARMY FROM JUNE 6, 1958, UNTIL FEBRUARY 16, 1960, WHEN HE WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST. CLAIMANT WAS DISCHARGED FROM THE SERVICE UNDER HONORABLE CONDITIONS UPON APRIL 8, 1958, AND HE REENLISTED UPON JUNE 6, 1958. BECAUSE OF THIS BREAK IN SERVICE, CLAIMANT IS NOT ELIGIBLE FOR SAVED PAY; THEREFORE, THE CLAIM IS DENIED. SEE 38 COMP. GEN. 47. NEITHER THE RECEIPT OF A REENLISTMENT BONUS NOR WAIVER THAT ALLOWED HIM TO REENLIST ALTERS THIS RESULT AS NEITHER PROVIDE A BASIS FOR APPLICATION OF SAVED PAY PROVISION.

TO SP4 JOHN C. BROWN:

WE REFER FURTHER TO YOUR LETTER OF FEBRUARY 24, 1972, WITH ENCLOSURES, IN WHICH YOU IN EFFECT REQUEST REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 27, 1964, WHICH DENIED YOUR CLAIM FOR ADDITIONAL PAY FOR THE PERIOD FROM JUNE 6, 1958, UNTIL FEBRUARY 16, 1960, WHEN YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (TDRL) OF THE ARMY.

BY SPECIAL ORDER NUMBER 70, APRIL 8, 1958, HEADQUARTERS, THE ARMOR COMBAT TRAINING CENTER, CAMP IRWIN, CALIFORNIA, EFFECTIVE APRIL 9, 1958, YOU WERE HONORABLY DISCHARGED NOT BY REASON OF PHYSICAL DISABILITY FROM YOUR SIX- YEAR ENLISTMENT IN THE REGULAR ARMY WHICH OTHERWISE WOULD HAVE TERMINATED IN OCTOBER 1961.

BY LETTER OF MAY 14, 1958, FROM THE ADJUTANT GENERAL OF THE ARMY TO THE COMMANDING GENERAL, SIXTH UNITED STATES ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, IT WAS INDICATED THAT YOU DESIRED TO REENLIST IN THE REGULAR ARMY, AND YOUR REENLISTMENT FOR A THREE-YEAR PERIOD WAS AUTHORIZED. ACCORDINGLY, YOU REENLISTED ON JUNE 6, 1958, IN THE SAME PAY GRADE (E-4) PREVIOUSLY HELD BY YOU.

SPECIAL ORDERS NUMBER 27, HEADQUARTERS, DEPARTMENT OF THE ARMY, FEBRUARY 8, 1960, STATES THAT YOU WERE FOUND UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY (30 PERCENT) AND YOU WERE RELIEVED OF YOUR ASSIGNMENT (MEDICAL HOLDING DETACHMENT, LETTERMAN GENERAL HOSPITAL) AND PLACED ON THE TDRL AS SPECIALIST FOURTH CLASS (E-4), EFFECTIVE FEBRUARY 16, 1960.

PRIOR TO YOUR DISCHARGE FROM THE REGULAR ARMY IN APRIL 1958 YOU RECEIVED BASIC PAY OF $202.80 MONTHLY (E-4 WITH OVER 14 YEARS' SERVICE). UPON REENLISTMENT IN THE SAME GRADE IN JUNE 1958, YOU WERE PAID $190 MONTHLY, THE AMOUNT OF BASIC PAY THEN AUTHORIZED FOR MEMBERS OF YOUR GRADE AND LENGTH OF SERVICE.

YOUR CLAIM FOR THE DIFFERENCE IN BASIC PAY FOR THE PERIOD JUNE 6, 1958 - FEBRUARY 15, 1960, WAS DENIED BY THE ARMY ON MAY 19, 1964, AND LATER WAS DISALLOWED BY THIS OFFICE.

YOU APPEAR TO BE OF THE OPINION THAT SINCE YOU RECEIVED A WAIVER WHICH PERMITTED YOU TO REENLIST AND YOU DID SO APPROXIMATELY 56 DAYS AFTER BEING DISCHARGED, THE SAVED PAY PROVISIONS OF PUBLIC LAW 85-422, MAY 20, 1958, ENTITLED YOU TO RECEIVE $202.80 MONTHLY BASIC PAY IN THE LAST PERIOD OF YOUR SERVICE.

THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, EFFECTIVE JUNE 1, 1958, ADJUSTED THE METHOD OF COMPUTING BASIC PAY OF MEMBERS OF THE UNIFORMED SERVICES. THE NEW PAY TABLE FOR ENLISTED PERSONNEL PROVIDED THAT A MEMBER IN GRADE E-4 WITH OVER 14 YEARS' SERVICE WAS TO RECEIVE $190 MONTHLY. THE ACT FURTHER PROVIDED IN PERTINENT PART (72 STAT. 130) AS FOLLOWS:

"SEC. 10. THE ENACTMENT OF THIS ACT SHALL NOT OPERATE TO REDUCE -

"(1) THE BASIC PAY OR RETIRED PAY TO WHICH A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT***."

IN DECISION OF JULY 22, 1958, TO THE SECRETARY OF DEFENSE, B-136668, 38 COMP. GEN. 47, COPY ENCLOSED, WE ANSWERED SEVERAL QUESTIONS REGARDING THE EFFECT OF THE SAVED PAY PROVISION OF THE ABOVE ACT. WE WERE ASKED IF MEMBERS ON ACTIVE DUTY ON MAY 31, 1958, MIGHT CONTINUE TO RECEIVE THE BENEFITS OF THE PROVISION WHERE THERE WAS DISCHARGE OR REENLISTMENT WITHIN 90 DAYS OR THREE MONTHS (QUESTION C). IN REPLY WE SAID THAT WHILE THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, 37 U.S.C. 315(A) WERE APPLICABLE TO MEMBERS "WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF THE LAST DISCHARGE," SIMILAR LANGUAGE WAS NOT INCLUDED IN THE 1958 ACT.

WE VIEWED THE OMISSION OF SUCH LANGUAGE AS EVIDENCING AN INTENT ON THE PART OF THE CONGRESS THAT ANY BREAK IN SERVICE OF ONE DAY OR MORE SHOULD TERMINATE ANY RIGHT TO SAVED PAY, AND CONSEQUENTLY, WE HELD THAT A MEMBER WITH SUCH BREAK IN SERVICE WAS NOT ENTITLED TO THE BENEFIT OF THE SAVED PAY PROVISION OF THE 1958 ACT.

THE RECORD SHOWS THAT YOU WERE DISCHARGED FROM THE ARMY ON APRIL 9, 1958, AND THAT YOU REENLISTED JUNE 6, 1958. AS THERE WAS A LAPSE IN YOUR SERVICE, IN ACCORD WITH 38 COMP. GEN. 47, YOU ARE NOT ENTITLED TO THE BENEFIT OF THE SAVED PAY PROVISION OF THE ACT OF MAY 20, 1958. WHILE THE WAIVER YOU RECEIVED PERMITTED REENLISTMENT, IN NO WAY COULD IT OPERATE TO RESCIND YOUR DISCHARGE. LIKEWISE, YOUR RECEIPT OF A REENLISTMENT BONUS MADE UNDER THE AUTHORITY OF SECTION 208 OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488, PROVIDES NO BASIS FOR APPLICATION OF THE SAVED PAY PROVISION IN YOUR CASE. THE PROVISION UNDER WHICH YOU WERE PAID THE REENLISTMENT BONUS SPECIFICALLY PROVIDED FOR PAYMENT OF THE BONUS TO A MEMBER WHO REENLISTED WITHIN 90 DAYS AFTER THE DATE OF HIS DISCHARGE, COMPUTED ON THE MONTHLY BASIC PAY TO WHICH HE WAS ENTITLED AT THE TIME OF DISCHARGE.

MOREOVER, SINCE ON MAY 31, 1958, THE DAY BEFORE THE EFFECTIVE DATE OF THE 1958 ACT YOU WERE NOT A MEMBER OF A UNIFORMED SERVICE, SECTION 10(1) OF THAT LAW DOES NOT APPLY TO YOU AS YOU WERE NOT ENTITLED TO BASIC PAY ON THAT DAY. CONSEQUENTLY, AS THE RECORD INDICATES THAT COMMENCING JUNE 6, 1958, YOU WERE PAID $190 MONTHLY, WHICH WAS THE PROPER AMOUNT OF YOUR BASIC PAY, YOU ARE NOT ENTITLED TO RECEIVE INCREASED PAY FROM THAT DATE UNTIL PLACEMENT ON THE TDRL ON FEBRUARY 16, 1960.

ADDITIONALLY, YOU REFER TO THE NONRECEIPT OF SUBSISTENCE WHILE ASSIGNED TO THE MEDICAL HOLDING DETACHMENT AT LETTERMAN GENERAL HOSPITAL AND WHILE ON THE TDRL. THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) SHALL BE FOREVER BARRED UNLESS SUCH CLAIM BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. SINCE YOUR LETTER OF FEBRUARY 24, 1972, IS YOUR FIRST CLAIM FOR SUBSISTENCE ALLOWANCE WHICH ACCRUED IN 1960, APPROXIMATELY 12 YEARS AGO, THIS CLAIM IS BARRED AND MAY NOT BE CONSIDERED. WHILE WE DO NOT HAVE THE PERTINENT RECORDS BEFORE US, WE HAVE NO REASON TO BELIEVE THAT YOU DID NOT RECEIVE SUBSISTENCE IN KIND OR ALL SUBSISTENCE ALLOWANCES TO WHICH YOU WERE ENTITLED WHILE AT LETTERMAN GENERAL HOSPITAL; SUCH ALLOWANCES ARE NOT PAYABLE TO A MEMBER ON THE TDRL.

COPIES OF ORDERS FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH.