B-83840, OCTOBER 6, 1954, 34 COMP. GEN. 155

B-83840, OCTOBER 6, 1954, 34 COMP. GEN. 155

DISABILITY RETIREMENT PAY - SERVICE CREDITS - DISABILITY DETERMINATION SUBSEQUENT TO ACTIVE DUTY RELEASE A COAST GUARD RESERVE OFFICER WHO WAS RELEASED FROM ACTIVE DUTY WITHOUT PAY FOR PHYSICAL DISABILITY AND WHO, AS THE RESULT OF THE APPROVED FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, WAS SUBSEQUENTLY GRANTED DISABILITY RETIREMENT PAY RETROACTIVE TO DATE OF RELEASE MAY NOT BE CREDITED WITH ANY INACTIVE SERVICE AFTER THE DATE OF RELEASE FROM ACTIVE DUTY IN DETERMINING THE ACTIVE DUTY PAY UPON WHICH HIS RETIREMENT PAY IS TO BE BASED.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT EVERETT BROOKS, OCTOBER 6, 1954:

REFERENCE IS MADE TO LETTER OF AUGUST 16, 1954, WRITTEN ON YOUR BEHALF BY MR. MAXWELL H. GOLDSTEIN, ATTORNEY AT LAW, REQUESTING A REVIEW OF SETTLEMENT DATED MAY 7, 1954, ALLOWING $6,570 ON YOUR CLAIM FOR RETROACTIVE RETIREMENT PAY FOR THE PERIOD FROM DECEMBER 16, 1944, TO APRIL 30, 1948, INCLUSIVE.

THE COMPUTATION OF THE AMOUNT ALLOWED WAS BASED ON THE RATES OF PAY PRESCRIBED BY THE STATUTES IN EFFECT DURING THE PERIOD DECEMBER 16, 1944, TO APRIL 30, 1948, INCLUSIVE. SEE SECTION 1, PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED EFFECTIVE JULY 1, 1946, BY SECTION 4 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, 37 U.S.C. 101, 1946 ED. THUS, YOUR RETROACTIVE RETIREMENT PAY WAS COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE BASE PAY OF A LIEUTENANT AS FOLLOWS: AT THE RATE OF $150 PER MONTH (75 PERCENTUM OF $300) FOR THE PERIOD DECEMBER 16, 1944, TO JUNE 30, 1946, INCLUSIVE, $2,775; AND AT THE RATE OF $172.50 PER MONTH (75 PERCENTUM OF $230) FOR THE PERIOD JULY 1, 1946, TO APRIL 30, 1948 INCLUSIVE, $3,795; A TOTAL OF $6,570. THE NET SUM OF $3,756.53 CERTIFIED TO BE PAID YOU UNDER SUCH SETTLEMENT REPRESENTS THE DIFFERENCE BETWEEN $6,570, THE GROSS AMOUNT FOUND TO BE DUE FOR RETIREMENT PAY AND THE SUM OF $2,813.47, WHICH REPRESENTS DEDUCTIONS REQUIRED ON ACCOUNT OF A $200 MUSTERING-OUT PAYMENT; THE AMOUNT OF $2,010.86 WHICH YOU RECEIVED AS DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION FOR THE PERIOD APRIL 3, 1946, TO APRIL 30, 1948, INCLUSIVE; AND $602.61 FOR RETIREMENT PAY OVERPAID YOU FOR THE PERIOD FROM MAY 1, 1948, TO JANUARY 31, 1954, INCLUSIVE.

REVIEW OF THE ACTION TAKEN IS REQUESTED WITH RESPECT TO (1) THE COMPUTATION OF YOUR RETROACTIVE RETIREMENT PAY ON THE BASIS STATED FOR THE PERIOD FROM DECEMBER 16, 1944, TO APRIL 30, 1948, AND (2) THE DETERMINATION OF THE $602.61 OVERPAYMENT OF RETIREMENT PAY FOR THE PERIOD FROM MAY 1, 1948, TO JANUARY 31, 1954. ALSO, THE REQUEST APPEARS TO BE DIRECTED TO THE FACT THAT AN ADJUSTMENT IN YOUR RETIRED PAY ACCOUNT HAS RECENTLY BEEN ACCOMPLISHED BY THE UNITED STATES COAST GUARD (CONFIRMED, INFORMALLY, BY THIS OFFICE) AND THAT AS A RESULT OF SUCH ACTION YOUR RETIREMENT PAY HAS BEEN COMPUTED, EFFECTIVE FROM FEBRUARY 1, 1954, AT 75 PERCENTUM OF THE BASE PAY OF A LIEUTENANT INSTEAD OF ON THE BASIS OF THE PAY OF A LIEUTENANT WITH THREE YEARS' CREDITABLE SERVICE.

THE ALLOWANCE OF RETROACTIVE RETIREMENT PAY FOR THE PERIOD FROM DECEMBER 16, 1944, TO APRIL 30, 1948, INCLUSIVE, WAS BASED UPON THE HOLDING OF THE COURT OF CLAIMS IN HAMRICK V. UNITED STATES, 120 C.1CLS. 17, AND THE DENIAL BY THE SUPREME COURT ON JUNE 15, 1953, OF THE GOVERNMENT'S PETITION FOR WRITS OF CERTIORARI IN THE SIMILAR CASES OF EDWARD W. RAMSEY, 123 C.1CLS. 504, GORDON C. THOMAS, 123 C.1CLS. 507, AND JAMES W. FRAME, 124 C.1CLS. 557. IN THE HAMRICK DECISION IT WAS HELD THAT AN OFFICER WHO WAS GRANTED RETIRED PAY AS THE RESULT OF THE APPROVED PROCEEDINGS AND FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I, WAS ENTITLED TO SUCH RETIRED PAY RETROACTIVELY TO THE DATE OF HIS RELEASE FROM ACTIVE DUTY. SUCH HOLDING EFFECTED THE COURT'S VIEW THAT "FULL CORRECTION OF THE ERROR WOULD REQUIRE PLAINTIFF'S BEING PUT IN THE SAME POSITION HE WOULD BE IN HAD THE ERRONEOUS DETERMINATION NOT BEEN MADE.' THE COURT SAID THAT "1IF THE RETIRING BOARD HAD MADE A CORRECT DETERMINATION PLAINTIFF WOULD HAVE RECEIVED RETIRED PAY FROM THE TIME HIS ACTIVE DUTY PAY CEASED.' IT WOULD SEEM CLEAR THEREFORE THAT AN OFFICER RELEASED FROM ACTIVE DUTY, WITHOUT PAY, FOR PHYSICAL DISABILITY AND SUBSEQUENTLY GRANTED RETIREMENT PAY AS THE RESULT OF THE APPROVED FINDINGS OF A REVIEW BOARD ESTABLISHED PURSUANT TO THE PROVISIONS OF 38 U.S.C. 693I IS ENTITLED TO HAVE HIS RETIREMENT PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF LAW THAT WERE IN EFFECT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY ON THE SAME BASIS AS THOUGH THE REVIEW BOARD'S DECISION HAD BEEN MADE AT THAT TIME. HENCE, CREDIT IS PRECLUDED FOR ANY INACTIVE SERVICE AFTER THE DATE OF THE RELEASE FROM ACTIVE DUTY, IN DETERMINING THE RATE OF ACTIVE DUTY PAY, AS OF THE DATE OF RELEASE, UPON WHICH THE RETIREMENT PAY IS TO BE BASED. COMPARE DECISION OF MARCH 22, 1950, 29 COMP. GEN. 382.

IT IS REPORTED THAT YOU ACCEPTED AN APPOINTMENT ON AUGUST 12, 1942, AS LIEUTENANT (JG) IN THE UNITED STATES COAST GUARD RESERVE FOR A SPECIFIC TERM OF THREE YEARS. YOU WERE APPOINTED A LIEUTENANT FOR TEMPORARY SERVICE IN THE UNITED STATES COAST GUARD RESERVE ON MAY 25, 1943, AND YOU WERE RELEASED FROM ACTIVE DUTY ON DECEMBER 15, 1944. YOUR APPOINTMENT WAS AUTOMATICALLY TERMINATED ON AUGUST 11, 1945, AT THE EXPIRATION OF THE THREE-YEAR TERM OF SUCH APPOINTMENT AND HENCE YOU WERE COMPLETELY SEPARATED FROM THE UNITED STATES COAST GUARD RESERVE ON THAT DATE.

BEING ENTITLED TO RECEIVE RETROACTIVE RETIREMENT PAY EFFECTIVE AS OF DECEMBER 16, 1944, YOU ARE ENTITLED TO CREDIT ONLY FOR THE TOTAL OF YOUR ACTIVE AND INACTIVE SERVICE PRIOR TO THAT DATE, I.E., FOR THE PERIOD AUGUST 12, 1942, TO DECEMBER 15, 1944, INCLUSIVE, A TOTAL OF 2 YEARS, 4 MONTHS, 4 DAYS. YOUR RETIREMENT PAY FOR THE RETROACTIVE PERIOD DECEMBER 16, 1944, TO APRIL 30, 1948, PROPERLY WAS COMPUTED ON THAT BASIS IN THE SETTLEMENT OF MAY 7, 1954. ALSO, THE ADJUSTMENT MADE IN THAT SETTLEMENT IN YOUR RETIRED PAY ACCOUNT FOR THE PERIOD MAY 1, 1948, TO JANUARY 31, 1954, AND THE ADJUSTMENT ACCOMPLISHED IN YOUR RETIRED PAY ACCOUNT BY THE COAST GUARD EFFECTIVE FEBRUARY 1, 1954, LIKEWISE WERE PROPERLY BASED ON THAT SAME PERIOD OF CREDITABLE SERVICE, IT BEING CLEAR THAT THERE MAY NOT BE INCLUDED IN THE COMPUTATION OF YOUR RETIREMENT PAY THE PERIOD OF INACTIVE SERVICE FROM DECEMBER 16, 1944, TO AUGUST 11, 1945, INCLUSIVE.

IT FOLLOWS THAT THE SETTLEMENT OF MAY 7, 1954, WAS CORRECT AND MUST BE SUSTAINED.