B-94125, JUL 27, 1950

B-94125: Jul 27, 1950

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YOU REQUEST DECISION AS TO WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED. UNDER THE PROVISIONS OF WHICH HE WAS ENTITLED TO RETIREMENT PAY AT THE RATE OF 36.375 PERCENT OF HIS ACTIVE DUTY PAY. UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE. IT WAS HELD. THAT THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT THEREFORE AN OFFICER OF THE NAVAL RESERVE WHO WAS RETIRED OR GRANTED RETIREMENT PAY WAS NOT ENTITLED TO THE BENEFITS OF SUCH PROVISIONS. IT WAS HELD THAT THE RETIREMENT PAY SYSTEM SET UP BY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. IS ENTIRELY SEPARATE AND DISTINCT FROM THE PROVIDED FOR MEMBERS OF THE ARMED SERVICES GENERALLY.

B-94125, JUL 27, 1950

PRECIS-UNAVAILABLE

COLONEL B. J. TULLINGTON, DISBURSING OFFICER:

THROUGH THE HONORABLE, THE SECRETARY OF THE ARMY:

BY LETTER DATED FEBRUARY 27, 1950, THE SECRETARY OF THE ARMY FORWARDED YOU LETTER OF NOVEMBER 28, 1949, TRANSMITTING A VOUCHER, WITH SUPPORTING PAPERS, IN FAVOR OF COLONEL JOHN L. ANDERSON, OFFICERS' RESERVE CORPS, ARMY OF THE UNITED STATES, RETIRED, IN THE AMOUNT OF $751.84 REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY AND RETIRED PAY COMPUTED AT THE RATE OF 36.375 PERCENT OF HIS ACTIVE DUTY PAY FOR THE PERIOD SEPTEMBER 1 TO NOVEMBER 30, 1949. YOU REQUEST DECISION AS TO WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED.

IT APPEARS THAT COLONEL ANDERSON, HAVING ATTAINED THE AGE OF 60 YEARS, HAD COMPLETED A TOTAL OF OVER 30 YEARS' SERVICE FOR ACTIVE DUTY PAY PURPOSES AND AN AGGREGATE OF 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE. ACCORDINGLY, HE AS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 60 STAT. 1087, AS AMENDED, UNDER THE PROVISIONS OF WHICH HE WAS ENTITLED TO RETIREMENT PAY AT THE RATE OF 36.375 PERCENT OF HIS ACTIVE DUTY PAY. HOWEVER, SINCE HE SERVED AS A MEMBER OF THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HE CLAIMS TO BE ENTITLED TO RETIREMENT PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE PAY IN VIEW OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, WHICH READS AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT."

IN DECISION OF MAY 6, 1947, B-63359, TO THE SECRETARY OF THE NAVY, IT WAS HELD, INTER ALIA, THAT THE SAID FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT THEREFORE AN OFFICER OF THE NAVAL RESERVE WHO WAS RETIRED OR GRANTED RETIREMENT PAY WAS NOT ENTITLED TO THE BENEFITS OF SUCH PROVISIONS. THE SAME RULE WOULD APPLY, OF COURSE, TO AN OFFICER OF A RESERVE COMPONENT OF THE ARMY. MOREOVER, IN DECISION OF APRIL 26, 1950, 29 COMP.GEN. 424, IT WAS HELD THAT THE RETIREMENT PAY SYSTEM SET UP BY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, SUPRA, IS ENTIRELY SEPARATE AND DISTINCT FROM THE PROVIDED FOR MEMBERS OF THE ARMED SERVICES GENERALLY, AND THAT THE LAWS GOVERNING THE RETIREMENT PAY SYSTEMS OF THE TWO GROUPS MUST BE CONSIDERED TO BE MUTUALLY EXCLUSIVE. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.