B-178506, DEC 19, 1973, 53 COMP GEN 425

B-178506: Dec 19, 1973

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PAY - RETIRED - DISABILITY - NAME ON PROMOTION LIST - EFFECT ON RETIRED PAY AN AIR FORCE MAJOR WHO WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201 AND 1372 AFTER BEING RECOMMENDED FOR PROMOTION TO THE GRADE OF LIEUTENANT COLONEL. IS NOT ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE (10 U.S.C. 1374(D)). THE GRADE HE WAS ACTUALLY SERVING IN ON THE DATE OF HIS RETIREMENT SINCE THE DISABILITY FOR WHICH THE OFFICER WAS RETIRED WAS NOT FOUND AS THE RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION AS REQUIRED BY 10 U.S.C. 1372(3). IS NOT FOR APPLICATION AS IT WAS REPEALED PRIOR TO THE OFFICER'S PLACEMENT ON THE DISABILITY RETIRED LIST. 1973: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29.

B-178506, DEC 19, 1973, 53 COMP GEN 425

PAY - RETIRED - DISABILITY - NAME ON PROMOTION LIST - EFFECT ON RETIRED PAY AN AIR FORCE MAJOR WHO WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201 AND 1372 AFTER BEING RECOMMENDED FOR PROMOTION TO THE GRADE OF LIEUTENANT COLONEL, ALTHOUGH ENTITLED UNDER SECTION 206(A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 TO BE PLACED ON THE RETIRED LIST IN THE HIGHER GRADE TO WHICH PROMOTED (10 U.S.C. 1374(A)), IS NOT ENTITLED TO RETIRED PAY BASED ON THE HIGHER GRADE (10 U.S.C. 1374(D)), BUT PURSUANT TO 10 U.S.C. 1372(1) HIS RETIRED PAY MUST BE COMPUTED ON THE GRADE OF MAJOR, THE GRADE HE WAS ACTUALLY SERVING IN ON THE DATE OF HIS RETIREMENT SINCE THE DISABILITY FOR WHICH THE OFFICER WAS RETIRED WAS NOT FOUND AS THE RESULT OF A PHYSICAL EXAMINATION FOR PROMOTION AS REQUIRED BY 10 U.S.C. 1372(3). FURTHERMORE, SECTION 507(A)(7) OF THE OFFICER PERSONNEL ACT OF 1947, WHICH PERMITTED COMPUTATION OF AN OFFICER'S RETIRED PAY ON THE BASIS OF HIS PROMOTION TO A HIGHER GRADE, IS NOT FOR APPLICATION AS IT WAS REPEALED PRIOR TO THE OFFICER'S PLACEMENT ON THE DISABILITY RETIRED LIST.

TO N.R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, DECEMBER 19, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 29, 1973 (FILE REFERENCE RPTT), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $10,597.11 IN FAVOR OF LIEUTENANT COLONEL JAMES P. MALONEY, USAF, RETIRED, XXX-XX-XXXX, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THE GRADE OF MAJOR AND LIEUTENANT COLONEL FOR THE PERIOD OF JULY 4, 1958, THROUGH MARCH 31, 1973. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY HEADQUARTERS UNITED STATES AIR FORCE LETTER DATED APRIL 20, 1973 (FILE REFERENCE ACF), AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1185 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY GENERAL ORDERS NUMBER 24, DATED MAY 13, 1958, MAJOR JAMES P. MALONEY WAS PLACED ON AN APPROVED RECOMMENDED LIST FOR OFFICERS SELECTED FOR PROMOTION TO THE PERMANENT GRADE OF "LIEUTENANT COLONEL, RESERVE OF THE AIR FORCE," WITH AN EFFECTIVE DATE FOR PROMOTION OF JUNE 25, 1959.

HOWEVER, YOU INDICATE THAT SUBSEQUENT TO SELECTION FOR PROMOTION, HE WAS FOUND UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY. AND, BY SPECIAL ORDERS NUMBER C-310 DATED JUNE 24, 1958, HE WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201 AND 1372 EFFECTIVE JULY 3, 1958, IN THE GRADE OF MAJOR.

YOU INDICATE THAT THE AIR FORCE HAS ADVANCED MAJOR MALONEY ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 1374(A) BUT, PURSUANT TO 10 U.S.C. 1374(D), THE AIR FORCE HAS CONSISTENTLY DECLINED TO COMPUTE HIS RETIRED PAY BASED ON THE PAY OF A LIEUTENANT COLONEL BUT HAS CONTINUED TO COMPUTE SUCH PAY ON THE BASIS OF THE PAY OF A MAJOR. YOU ALSO SAY THAT FROM THE DATE OF HIS RETIREMENT COLONEL MALONEY HAS MAINTAINED THAT UNDER THE PROVISIONS OF 10 U.S.C. 1372(3) HE WAS ENTITLED TO BE RETIRED IN THE GRADE OF LIEUTENANT COLONEL WITH RETIRED PAY BASED ON THAT GRADE.

IN VIEW OF THE DECISIONS OF THE COURT OF CLAIMS IN KRATZ V. UNITED STATES, 156 CT. CL. 480 (1962), WILLIS V. UNITED STATES, 156 CT. CL. 485 (1962), FREDERICKSON V. UNITED STATES, 133 CT. CL. 890 (1956), AND LOWELL V. UNITED STATES, 141 CT. CL. 111 (1958), AS WELL AS OUR DECISION 42 COMP. GEN. 685 (1963), YOU SAY IT APPEARS THAT COLONEL MALONEY WAS ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 1372(3) TO BE RETIRED IN AND HAVE HIS RETIRED PAY BASED ON THE GRADE OF LIEUTENANT COLONEL. FURTHER, YOU ASK, ASSUMING THAT WE AGREE THAT COLONEL MALONEY'S RETIRED PAY SHOULD BE COMPUTED BASED ON THE PAY OF A LIEUTENANT COLONEL, WHETHER HE IS ENTITLED TO SUCH PAY RETROACTIVELY TO JULY 4, 1958, THE DAY HE BECAME ENTITLED TO RETIRED PAY.

THE KRATZ AND WILLIS CASES AND OUR DECISION 42 COMP. GEN. 685, TO WHICH YOU REFER, INVOLVED THE APPLICATION OF SECTION 507(A)(7) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 795, 893, 10 U.S.C. 559A (7) (1952 ED.). THAT PROVISION WAS EXPRESSLY REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641, 677. IN ORDER FOR COLONEL MALONEY TO RECEIVE THE BENEFITS OF SECTION 507(A)(7) OF THE 1947 ACT, HE MUST HAVE BEEN PLACED IN A DISABILITY RETIRED STATUS PRIOR TO THAT REPEAL. SINCE THE RECORD SHOWS THAT THE MEMBER WAS NOT RETIRED UNTIL JULY 3, 1958, THAT PROVISION OF LAW AND THOSE CASES ARE NOT APPLICABLE TO HIM. CF. KRATZ V. UNITED STATES, 156 CT. CL. 480, 484.

THE PROVISIONS OF LAW IN EFFECT AT THE TIME OF COLONEL MALONEY'S RETIREMENT AND APPLICABLE IN HIS CASE ARE 10 U.S.C. 1372 WHICH WAS DERIVED IN PERTINENT PART FROM THE FIFTH PROVISO OF SECTIONS 402(D) AND 409, TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 818, 823; AND SECTION 206(A), TITLE II, OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, APPROVED SEPTEMBER 3, 1954, CH. 1257, 68 STAT. 1152, 50 U.S.C. 1196(A) (SUPPLEMENT V, 1952 ED.), PRESENTLY CODIFIED AS 10 U.S.C. 1374 (A) THROUGH (D).

SECTION 1372 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 *** OF THIS TITLE *** IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(1) THE GRADE OR RANK IN WHICH HE IS SERVING *** ON THE DATE WHEN HE IS RETIRED.

(3) THE PERMANENT REGULAR OR RESERVE GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED AND WHICH WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

THE COURT OF CLAIMS AND THIS OFFICE HAVE CONSISTENTLY VIEWED THE FIFTH PROVISO OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949 AND CLAUSE (3) OF 10 U.S.C. 1372 AS REQUIRING A DEFINITE DEGREE OF CONNECTION BETWEEN THE PHYSICAL EXAMINATION AND THE PROSPECTIVE PROMOTION IN ORDER TO MEET THE CONDITIONS PRESCRIBED IN THOSE STATUTORY PROVISIONS. IN OTHER WORDS, THE PHYSICAL EXAMINATION GIVEN IN CONNECTION WITH A PROMOTION MUST HAVE A DIRECT AND SUBSTANTIAL BEARING ON EFFECTING THAT PROMOTION. SEE 50 COMP. GEN. 508 (1971) AND CASES CITED THEREIN, ESPECIALLY BRANDT V. UNITED STATES, 155 CT. CL. 345, 351 (1961), WHEREIN IN HOLDING IN FAVOR OF THE GOVERNMENT THE COURT STATED IN PART AS FOLLOWS:

*** IN EFFECT PLAINTIFF ASKS THIS COURT TO HOLD THAT SOLELY BY VIRTUE OF THE FACT THAT PLAINTIFF WAS RETIRED FOR PHYSICAL DISABILITY AT A TIME WHEN HE WAS BEING CONSIDERED FOR PROMOTION, HE HAS MET THE REQUIREMENTS OF THE FIFTH PROVISO OF SECTION 402(D), AND SHOULD THUS RECEIVE DISABILITY RETIREMENT PAY BASED ON THE HIGHER RANK TO WHICH HE WOULD HAVE BEEN PROMOTED HAD HE REMAINED IN THE SERVICE. THIS WE CANNOT DO. HAD CONGRESS INTENDED THE PROVISION TO OPERATE IN THAT MANNER WE BELIEVE IT WOULD HAVE STATED SO, RATHER THAN IMPOSING THE SPECIFIC REQUIREMENT EXPLICIT IN THE LANGUAGE OF THE STATUE. *** PLAINTIFF HAS ACTUALLY SOUGHT TO HAVE THIS COURT EXTEND THE TENOR OF THE CASES DISTINGUISHED ABOVE ONE STEP FURTHER, SO AS TO ELIMINATE THE REQUIREMENT OF A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROMOTION FROM THE FIFTH PROVISO OF SECTION 402(D). SINCE WE HAVE DECLINED TO DO THIS, THE ESTABLISHMENT OF FACTS INDICATING AT LEAST A DEGREE OF CONNECTION BETWEEN PHYSICAL EXAMINATION AND PROPOSED PROMOTION REMAINS REQUISITE TO A CAUSE OF ACTION UNDER THE STATUTORY PROVISION. ***

THE FREDRICKSON CASE WHICH YOU CITE, AND WHICH WAS DISTINGUISHED IN THE BRANDT CASE, INVOLVED PHYSICAL EXAMINATIONS FOR RETIREMENT AND PROMOTION WHICH WERE SO CLOSE TOGETHER AS TO BE HELD TO BE PART AND PARCEL OF THE SAME TRANSACTION. THAT DOES NOT APPEAR TO BE THE CASE HERE. ALSO, THE LOWELL CASE WHICH YOU CITE DOES NOT APPEAR APPLICABLE HERE SINCE THAT CASE DID NOT INVOLVE THE QUESTION OF WHETHER THE MEMBER'S PHYSICAL DISABILITY WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION.

FROM YOUR LETTER, IT APPEARS THAT THE PHYSICAL EXAMINATION GIVEN TO COLONEL MALONEY, WHICH GAVE RISE TO THE QUESTION OF HIS PHYSICAL ABILITY TO REMAIN IN THE SERVICE, TOOK PLACE SUBSEQUENT TO THE DATE OF THE ORDERS PLACING HIM ON THE APPROVED RECOMMENDED LIST OF OFFICERS SELECTED FOR PROMOTION AND, ACCORDING TO COLONEL MALONEY'S LETTER, WAS GIVEN AT HIS REQUEST NOT IN CONNECTION WITH HIS PROMOTION. THEREFORE, BASED ON THE INFORMATION BEFORE US AND IN THE ABSENCE OF A PROMOTIONAL PHYSICAL EXAMINATION WITHIN THE PURVIEW OF THE COURT'S HOLDING IN THE BRANDT CASE, IT DOES NOT APPEAR THAT COLONEL MALONEY'S PHYSICAL DISABILITY "WAS FOUND TO EXIST AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION" AND, CONSEQUENTLY, WOULD NOT COME WITHIN THE PROVISIONS OF 10 U.S.C. 1372(3) SO AS TO ENTITLE HIM TO RETIRED PAY BASED ON THE BASIC PAY OF A LIEUTENANT COLONEL.

SECTION 206(A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 PROVIDES IN PERTINENT PART AS FOLLOWS:

A RESERVE OFFICER RECOMMENDED FOR PROMOTION TO ANY GRADE UNDER THIS ACT *** WHO, AT ANY TIME PRIOR TO PROMOTION, IS FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY SHALL, IF TRANSFERRED TO THE RETIRED RESERVE, BE TRANSFERRED IN THE GRADE FOR WHICH RECOMMENDED *** UNLESS HOLDING APPOINTMENT IN OR ENTITLED TO HIGHER GRADE UNDER OTHER PROVISIONS OF LAW. NO INCREASE IN PAY OR BENEFITS SHALL ACCRUE BY REASON OF SUCH PROMOTION UNLESS OTHERWISE PROVIDED BY LAW.

CONTRARY TO COLONEL MALONEY'S BELIEF, THE PROVISIONS OF 10 U.S.C. 1374(A) AND (D) DID NOT ORIGINATE IN PUBLIC LAW 86-559, APPROVED JUNE 30, 1960, 74 STAT. 264, BUT ARE THE CODIFICATION OF THE ABOVE-QUOTED PROVISIONS OF SECTION 206(A) OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 WHICH PROVISIONS WERE IN EFFECT AT THE TIME OF HIS RETIREMENT.

BASED ON THE BEFORE-QUOTED PROVISIONS OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, IT APPEARS THAT COLONEL MALONEY WAS ENTITLED TO BE PLACED ON THE RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL AT THE TIME OF HIS RETIREMENT, AS YOU INDICATE WAS LATER DONE BY THE AIR FORCE. HOWEVER, SINCE THE ITALICIZED PROVISIONS OF THAT ACT CLEARLY PROHIBIT HIM FROM RECEIVING THE RETIRED PAY OF A LIEUTENANT COLONEL, HIS RETIRED PAY MUST BE COMPUTED ON THE BASIC PAY OF A MAJOR, THE GRADE IN WHICH HE WAS SERVING ON THE DATE WHEN HE WAS RETIRED. SEE 10 U.S.C. 1372(1).

ACCORDINGLY, SINCE COLONEL MALONEY HAS APPARENTLY BEEN RECEIVING RETIRED PAY COMPUTED ON THE GRADE OF MAJOR TO WHICH HE IS PROPERLY ENTITLED, PAYMENT ON THE VOUCHER ENCLOSED WITH YOUR LETTER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.