B-66974, MAY 1, 1961

B-66974: May 1, 1961

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22. YOU HAVE BEEN DENIED THE BENEFIT OF THIS TEMPORARY RANK IN COMPUTING YOUR RETIRED PAY SOLELY ON THE BASIS OF AN ADMINISTRATIVE POLICY OF THE SECRETARY OF THE ARMY. YOU WERE RETIRED EFFECTIVE MAY 1. AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.'. THE STATUTORY PROVISIONS GOVERNING YOUR RANK OR GRADE ON THE RETIRED LIST FOR RETIRED PAY PURPOSES ARE CONTAINED IN SECTIONS 3961 AND 3963 (A) OF TITLE 10. "A REGULAR COMMISSIONED OFFICER WHO IS RETIRED. OR A RESERVE COMMISSIONED OFFICER WHO IS RETIRED OR TO WHOM RETIRED PAY IS GRANTED. IS ENTITLED TO A RETIRED GRADE EQUAL TO THE HIGHEST TEMPORARY GRADE IN THE ARMY IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY.

B-66974, MAY 1, 1961

TO LIEUTENANT COLONEL JOHN F. CONDON, U.S. ARMY, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1961, REQUESTING A REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR ADJUSTMENT IN RETIRED PAY BASED ON YOUR TEMPORARY RANK OF COLONEL.

YOU STATE THAT ALTHOUGH YOU SERVED SATISFACTORILY ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS A COLONEL FROM NOVEMBER 9, 1945, TO APRIL 30, 1946, YOU HAVE BEEN DENIED THE BENEFIT OF THIS TEMPORARY RANK IN COMPUTING YOUR RETIRED PAY SOLELY ON THE BASIS OF AN ADMINISTRATIVE POLICY OF THE SECRETARY OF THE ARMY.

BY ORDERS OF APRIL 5, 1960, YOU WERE RETIRED EFFECTIVE MAY 1, 1960, UPON YOUR OWN APPLICATION AFTER COMPLETION OF MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 3911, WHICH READS AS FOLLOWS:

"THE SECRETARY OF THE ARMY MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.'

THE STATUTORY PROVISIONS GOVERNING YOUR RANK OR GRADE ON THE RETIRED LIST FOR RETIRED PAY PURPOSES ARE CONTAINED IN SECTIONS 3961 AND 3963 (A) OF TITLE 10, U.S. CODE, RESPECTIVELY, AS FOLLOWS:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISIONS OF LAW, A REGULAR OR RESERVE OF THE ARMY WHO RETIRES OTHER THAN FOR PHYSICAL DISABILITY RETIRES IN THE REGULAR OR RESERVE GRADE THAT HE HOLDSON THE DATE OF HIS RETIREMENT.

"A REGULAR COMMISSIONED OFFICER WHO IS RETIRED, OR A RESERVE COMMISSIONED OFFICER WHO IS RETIRED OR TO WHOM RETIRED PAY IS GRANTED, IS ENTITLED TO A RETIRED GRADE EQUAL TO THE HIGHEST TEMPORARY GRADE IN THE ARMY IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMY, FOR NOT LESS THAN SIX MONTHS.'

SINCE THE LAW SPECIFICALLY PROVIDES THAT IN ORDER TO BE ENTITLED TO ADVANCEMENT TO THE HIGHEST TEMPORARY GRADE THE OFFICER MUST HAVE SERVED IN THAT TEMPORARY GRADE FOR NOT LESS THAN SIX MONTHS, THE DETERMINATION IN YOUR CASE AS TO THE HIGHEST GRADE SATISFACTORILY HELD FOR RETIREMENT PURPOSES WAS NOT MADE ON THE BASIS OF AN ADMINISTRATIVE POLICY, BUT WAS MADE IN ACCORDANCE WITH THE MANDATORY REQUIREMENTS OF THE GOVERNING STATUTE. WITH RESPECT TO THE AUTHORITY OF THE SECRETARY OF THE ARMY TO ADMINISTRATIVELY REQUIRE AT LEAST 6 MONTHS OF ACTIVE SERVICE IN A GRADE AS A CONDITION PRECEDENT TO DETERMINING THAT SERVICE THEREIN WAS SATISFACTORY FOR RETIRED PAY PURPOSES, SEE RALPH H. ROBERTS V. UNITED STATES, CT.CL. NO. 247-59, DECIDED NOVEMBER 2, 1960; COMPARE RALPH O. BROWNFIELD V. UNITED STATES, CT.CL. NO. 352-58, DECIDED JANUARY 20, 1960.

YOU REFER TO WHAT YOU BELIEVE TO BE A COMMON PRACTICE OF COUNTING A MAJOR PORTION OF A MONTH AS A FULL MONTH AND STATE THAT ON THIS BASIS YOUR SERVICE IN THE HIGHER TEMPORARY GRADE OF 5 MONTHS AND 21 DAYS WOULD CONSTITUTE SIX MONTHS. WHILE SOME STATUTES AUTHORIZE THE CREDITING OF SIX MONTHS OR MORE AS A FULL YEAR FOR SOME PURPOSES, THE CREDIT OF A FRACTION OF ANY PERIOD AS A WHOLE PERIOD MAY BE MADE ONLY IN THOSE CASES WHERE SUCH CONSTRUCTIVE CREDIT IS SPECIFICALLY AUTHORIZED BY LAW. SINCE 10 U.S.C. 3963 (A) REQUIRES SERVICE IN THE HIGHEST TEMPORARY GRADE OF "NOT LESS THAN SIX MONTHS" TO QUALIFY FOR ADVANCEMENT TO THAT GRADE ON THE RETIRED LIST, THERE IS NO AUTHORITY FOR ADVANCING YOU TO THE TEMPORARY GRADE OF COLONEL, IN WHICH YOU SERVED FOR A PERIOD OF LESS THAN 6 MONTHS.