B-98085, SEP. 9, 1960

B-98085, SEP. 9, 1960

TO MR. WATSON BENGE, FINANCE OFFICER, VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1960, FILE C-145710, DE ROSE, RALPH M., CODE 3472, 3072/242A, IN WHICH YOU REQUEST AN OPINION IN THE CASE OF THE ABOVE-MENTIONED VETERAN, WHO IS CLAIMING AN INCREASE IN HIS RETIRED PAY AS AN OFFICER ON THE EMERGENCY OFFICERS' RETIRED LIST BASED ON A LONGEVITY CREDIT FOR THE PERIOD HE WAS ON THE RETIRED LIST FROM JUNE 6, 1928, THROUGH JANUARY 5, 1943.

CAPTAIN DE ROSE BELIEVES HE IS DUE CREDIT FOR THE INACTIVE TIME MENTIONED ABOVE BY REASON OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, WHICH PROVIDES AS FOLLOWS:

"/I) ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES.'

THE VETERAN STATES THAT HE IS ENTITLED TO THE SAME RETIRED PAY AS A "RE- RETIRED" OFFICER OF THE REGULAR SERVICES WITH OVER 23 YEARS' SERVICE IN ACCORDANCE WITH RECENT RULINGS OF THE COURT OF CLAIMS.

WE HAVE NOT RENDERED ANY OPINION IN THE MATTER TO ANY OF THE VETERANS ADMINISTRATION REGIONAL OFFICERS. HOWEVER, WE ARE ENCLOSING A COPY OF A DECISION OF THIS OFFICE ADDRESSED TO CAPTAIN DE ROSE, B 98085, DATED JANUARY 22, 1951, IN WHICH WE HOLD THAT HE WAS NOT ENTITLED TO COUNT THE PERIOD OF INACTIVE DUTY FOR LONGEVITY PAY PURPOSES WHILE ON ACTIVE DUTY FROM JANUARY 6, 1943, TO JUNE 21, 1945, NOR WAS HE ENTITLED TO SUCH CREDIT UPON RESTORATION TO THE EMERGENCY OFFICERS' RETIRED LIST. WE HELD HE WAS ENTITLED TO THE PAY OF A CAPTAIN WITH OVER 9 YEARS' SERVICE EFFECTIVE JUNE 29, 1948, PURSUANT TO THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085.

IT IS WELL ESTABLISHED THAT FORMER OFFICERS OF WORLD WAR I WHOSE NAMES HAVE BEEN PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 24, 1928, AS AMENDED, 38 U.S.C. 581, HAVE A STATUS ESSENTIALLY DIFFERENT FROM THAT OF RETIRED OFFICERS OF THE ARMY OR NAVY AND STATUTORY PROVISIONS RELATING TO RETIRED OFFICERS OF THE ARMY OR NAVY GENERALLY HAVE NOT BEEN CONSIDERED AS APPLICABLE TO OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST UNLESS THE STATUTE INVOLVED HAS SPECIFICALLY SO PROVIDED. SEE 23 COMP. GEN. 102, 106; 28 COMP. GEN. 620, 622; PERKINS V. UNITED STATES, 116 CT.CL. 778. UNDER THE EXPRESS PROVISIONS OF SECTION 6 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345, SUCH MEMBERS WERE ENTITLED TO ADJUSTMENT IN THEIR RETIRED PAY BASED ON THE RATES PROVIDED IN THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. PURSUANT TO SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, THEY WERE FURTHER ENTITLED TO THE HIGHEST TEMPORARY GRADE IN WHICH THEY SERVED SATISFACTORILY IN THE ARMY OR AIR FORCE FOR NOT LESS THAN 6 MONTHS DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946.

IN 32 COMP. GEN. 417, WE HELD THAT AN OFFICER PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST IS "A FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY" WITHIN THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, AND HE IS PERMITTED TO MAKE AN ELECTION WITH RESPECT TO RETIREMENT PAY AS PROVIDED BY THAT SECTION. IN A SUBSEQUENT DECISION TO THE ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION, B-113433, DATED MAY 20, 1953, WE STATED AS FOLLOWS:

"TITLE IV OF SAID CAREER COMPENSATION ACT SETS UP AN ENTIRELY NEW RETIREMENT SYSTEM FOR PHYSICAL DISABILITY, UTILIZING A TEMPORARY DISABILITY RETIREMENT LIST WHERE APPLICABLE. HOWEVER, NO RIGHT TO RETIREMENT FOR PHYSICAL DISABILITY CAN ACCRUE UNDER THAT TITLE TO A FORMER OFFICER WHOSE NAME HAS BEEN PLACED ON ONE OF THE EMERGENCY RETIRED LISTS CREATED BY THE ACT OF MAY 24, 1928, SINCE THE RETIREMENT PROVISIONS OF SECTION 402, TITLE IV, ARE APPLICABLE TO MEMBERS, AND NOT TO FORMER MEMBERS, OF THE UNIFORMED SERVICES. THE ONLY RIGHT WHICH IS GRANTED SUCH FORMER OFFICERS UNDER TITLE IV OF THE CAREER COMPENSATION ACT, IS A RIGHT TO INCREASED RETIREMENT PAY (OR SEVERANCE PAY WHERE APPLICABLE), IN THOSE INSTANCES WHERE AN ELECTION UNDER METHODS (A) OR (B) OF SECTION 411 WILL RESULT IN AN INCREASE IN RETIREMENT PAY. WHILE METHOD (A) PERMITS FORMER OFFICERS "TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT" SUCH FORMER OFFICERS CANNOT QUALIFY FOR RETIREMENT PAY UNDER THE RETIREMENT PROCEDURES CONTAINED IN SECTION 402 OF THAT ACT, SINCE THEY ARE NOT ELIGIBLE FOR RETIREMENT UNDER THAT ACT AND AN ELECTION OF THAT METHOD DOES NOT EFFECT ANY CHANGE IN THEIR STATUS AS EMERGENCY RETIRED OFFICERS. IT SEEMS APPARENT THAT THE WORD "QUALIFY" WAS USED IN THE SENSE OF PERMITTING A RECOMPUTATION OF RETIREMENT PAY BY EITHER METHOD (1) OR (2) OF SECTION 402 (D) OF THAT ACT IN THOSE INSTANCES WHERE CONSIDERATION OF YEARS OF SERVICE OR PERCENTAGE OF DISABILITY AS DETERMINED IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION, WILL RESULT IN AN INCREASE IN RETIREMENT PAY. ELECTION OF METHOD (B) OF SECTION 411 PERMITS A RECOMPUTATION AS PRESCRIBED IN SECTION 511. IN OTHER WORDS, AN ELECTION UNDER METHOD (A) RESULTS IN A RECOMPUTATION BY ONE OF THE TWO FORMULAS PRESCRIBED IN SECTION 402 (D) AND AN ELECTION UNDER METHOD (B) GENERALLY RESULTS IN A RECOMPUTATION BY THE FORMULA PRESCRIBED IN METHOD (B) IN SECTION 511. HOWEVER, IN EITHER EVENT, THE BASIC LAW UNDER WHICH THE RIGHT TO RETIREMENT PAY ACCRUES, CONTINUES TO BE THE ACT OF MAY 24, 1928, AS AMENDED, THE PROVISIONS OF WHICH REQUIRE THAT SUCH DISABILITY RETIREMENT PAY BE PAID "SOLELY OUT OF THE MILITARY AND NAVAL COMPENSATION APPROPRIATION FUND OF THE VETERANS ADMINISTRATION.'"

SEE ALSO 31 COMP. GEN. 28 AND PALMER V. UNITED STATES, 139 CT.CL. 376, WHERE THE COURT OF CLAIMS HELD THAT AN OFFICER RETIRED PRIOR TO OCTOBER 1, 1949, WAS NOT RETIRED UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT AND MAY NOT, BY REASON OF THE PROVISIONS OF SECTION 402 (I) OF THAT ACT, RECEIVE AN INCREASE IN RETIRED PAY BASED ON THE RATES FIXED IN THAT ACT.

UNDER THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, CAPTAIN DE ROSE BECAME ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH OVER 9 YEARS' SERVICE AT RATES ESTABLISHED BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, A TOTAL OF $198.37. THIS WAS INCREASED BY 4 PERCENT BY THE ACT OF MAY 19, 1952, 66 STAT. 79, EFFECTIVE MAY 1, 1952; BY AN ADDITIONAL 6 PERCENT BY THE ACT OF MARCH 31, 1955, 69 STAT. 18, EFFECTIVE APRIL 1, 1955, AND AN ADDITIONAL 6 PERCENT BY PUBLIC LAW 85 422, MAY 20, 1958, 72 STAT. 122, EFFECTIVE JUNE 1, 1958, FOR A PRESENT PAYMENT OF $231.79. SINCE THESE PAYMENTS WERE COMPUTED AT RATES PROVIDED IN LAWS IN EFFECT ON SEPTEMBER 30, 1949, IT APPEARS THAT EITHER THE VETERAN MADE NO ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, OR THAT HE ELECTED TO RECEIVE RETIRED PAY COMPUTED BY METHOD (A), SECTION 511 OF THAT ACT, 63 STAT. 829. ACCORDINGLY, THERE IS NO BASIS FOR INCREASING HIS RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949.