B-98145, OCTOBER 18, 1950, 30 COMP. GEN. 163

B-98145: Oct 18, 1950

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DISABILITY RETIREMENT PAY - ARMY OFFICERS - SERVICE WITH ISTHMIAN CANAL COMMISSION AN ARMY COLONEL WHO UPON RETIREMENT FOR AGE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF BRIGADIER GENERAL WITH RETIRED PAY OF SUCH RANK PURSUANT TO SECTION 3 OF THE ACT OF MARCH 4. WHO WAS RECALLED TO ACTIVE DUTY IN THE RANK OF COLONEL AND INCURRED A PHYSICAL DISABILITY WHILE SERVING IN THAT RANK. IS NOT ENTITLED TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 ON THE BASIS OF THE GRADE OF BRIGADIER GENERAL. SMITH IS ENTITLED TO DISABILITY RETIRED PAY BASED ON THE PAY OF THE GRADE OF BRIGADIER GENERAL. IT APPEARS THAT THE OFFICER WAS PLACED ON THE RETIRED LIST OF THE REGULAR ARMY EFFECTIVE DECEMBER 1.

B-98145, OCTOBER 18, 1950, 30 COMP. GEN. 163

DISABILITY RETIREMENT PAY - ARMY OFFICERS - SERVICE WITH ISTHMIAN CANAL COMMISSION AN ARMY COLONEL WHO UPON RETIREMENT FOR AGE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF BRIGADIER GENERAL WITH RETIRED PAY OF SUCH RANK PURSUANT TO SECTION 3 OF THE ACT OF MARCH 4, 1915, PROVIDING FOR SUCH ADVANCEMENT FOR SERVICE WITH THE ISTHMIAN CANAL COMMISSION, AND WHO WAS RECALLED TO ACTIVE DUTY IN THE RANK OF COLONEL AND INCURRED A PHYSICAL DISABILITY WHILE SERVING IN THAT RANK, IS NOT ENTITLED TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 ON THE BASIS OF THE GRADE OF BRIGADIER GENERAL.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, OCTOBER 18, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 18, 1950, WITH ENCLOSURE, REQUESTING DECISION AS TO WHETHER BRIGADIER GENERAL WALTER D. SMITH IS ENTITLED TO DISABILITY RETIRED PAY BASED ON THE PAY OF THE GRADE OF BRIGADIER GENERAL, UNDER THE CIRCUMSTANCES SET FORTH IN THE SAID ENCLOSURE (LETTER DATED MAY 16, 1950, FROM COLONEL B. J. TULLINGTON, FINANCE DEPARTMENT, U.S. ARMY, TO THE CHIEF OF FINANCE).

IT APPEARS THAT THE OFFICER WAS PLACED ON THE RETIRED LIST OF THE REGULAR ARMY EFFECTIVE DECEMBER 1, 1939, PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1882, 22 STAT. 118, 10 U.S.C. 945, HAVING ATTAINED THE AGE OF SIXTY-FOUR YEARS ON NOVEMBER 16, 1939. UPON RETIREMENT HE WAS ADVANCED ONE GRADE IN RANK, THAT IS, FROM COLONEL TO BRIGADIER GENERAL, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1191, 10 U.S.C. 1027, WHICH PROVIDES THAT OFFICERS OF THE ARMY AND NAVY WHO WERE DETAILED FOR DUTY WITH THE ISTHMIAN CANAL COMMISSION ON THE ISTHMUS OF PANAMA FOR MORE THAN THREE YEARS, AND WHO SHALL NOT HAVE BEEN ADVANCED IN RANK FOR SUCH SERVICE BY ANY PROVISION OF LAW, SHALL BE ADVANCED ONE GRADE IN RANK UPON RETIREMENT. THE OFFICER APPARENTLY WAS PAID RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A BRIGADIER GENERAL FROM DECEMBER 1, 1939, TO JANUARY 20, 1941. 15 COMP. GEN. 824; LEYS V. UNITED STATES, 80 C.1CLS. 235. BY PARAGRAPH 3, WAR DEPARTMENT SPECIAL ORDERS NO. 15, DATED JANUARY 18, 1941, AS AMENDED BY PARAGRAPH 2 OF WAR DEPARTMENT SPECIAL ORDERS NO. 16, DATED JANUARY 21, 1941, HE WAS RECALLED TO ACTIVE DUTY,"WITH THE RANK OF COLONEL, THE RANK HELD UPON RETIREMENT.' HE SERVED ON ACTIVE DUTY AS A COLONEL FROM JANUARY 21, 1941, TO MARCH 6, 1946, WHEN HE WAS RELEASED FROM ACTIVE DUTY. BY PARAGRAPH 7 OF WAR DEPARTMENT SPECIAL ORDERS NO. 37, DATED FEBRUARY 13, 1946, IT WAS ANNOUNCED THAT THE OFFICER WAS FOUND BY AN ARMY RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE BY REASON OF DISABILITY INCIDENT TO THE SERVICE INCURRED WHILE SERVING ON ACTIVE DUTY IN THE SAME GRADE AS THAT HELD BY HIM ON THE RETIRED LIST, THAT IS,") COL W/RANK BRIG GEN)," AND HIS RETIRED PAY STATUS WAS CHANGED TO THAT OF AN OFFICER RETIRED BY OPERATION OF SECTION 5 OF THE ACT OF JUNE 29, 1943, 57 STAT. 250, 10 U.S.C. 985D. THE SAID SECTION 5 OF THE 1943 ACT PROVIDES THAT ANY OFFICER OF THE REGULAR ARMY ON THE RETIRED LIST WHO SHALL HAVE BEEN PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY "IN THE GRADE AS THAT HELD BY HIM ON THE RETIRED LIST," RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH GRADE RETIRED ON ACCOUNT OF PHYSICAL DISABILITY INCIDENT TO THE SERVICE. SECTION 8 OF THE SAID ACT, 57 STAT. 250, 10 U.S.C. 985G, PROVIDES THAT NOTHING CONTAINED IN SUCH ACT SHALL BE CONSTRUED TO AFFECT THE RIGHT OF ANY OFFICER OF THE REGULAR ARMY TO HAVE THE RANK AND RETIRED PAY OF A HIGHER GRADE THAN THEREIN PROVIDED, IF ENTITLED THERETO UNDER OTHER PROVISIONS OF LAW. IT IS STATED THAT THE OFFICER (BY REASON OF SUCH DISABILITY STATUS) HAS BEEN PAID THE RETIRED PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE FROM MARCH 7, 1946, WITHOUT INCOME TAX DEDUCTIONS (SEE SECTION 22 (B) (5) OF THE INTERNAL REVENUE CODE, 53 STAT. 10) BUT APPARENTLY HE IS OF THE OPINION THAT HE IS ENTITLED TO DISABILITY RETIREMENT PAY OF A BRIGADIER GENERAL, RATHER THAN A COLONEL, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 APPROVED OCTOBER 12, 1949.

SECTION 411 OF THE SAID ACT, 63 STAT. 823, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE: PROVIDED, THAT THE DETERMINATION OF THE PERCENTAGE OF DISABILITY AS PRESCRIBED IN SECTIONS 402 (A) (3), 402 (B) (3), OR 402 (C) (3), AS APPLICABLE, SHALL BE BASED UPON THE DISABILITY OF SUCH MEMBER, FORMER MEMBER, OR PERSON, AS OF THE TIME HE WAS LAST RETIRED OR AS OF THE TIME HE WAS GRANTED RETIREMENT PAY, AS THE CASE MAY BE, AND THE PERCENTAGE OF SUCH DISABILITY WILL BE DETERMINED IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTIONS 511 OF THIS ACT * * *.

AN OFFICER OTHERWISE WITHIN THE PURVIEW OF THE SAID SECTION 411 OF THE CAREER COMPENSATION ACT MAY ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF SUCH ACT (SECTION 402D, 63 STAT. 818) OR TO RECEIVE RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT. THE TWO METHODS CONTAINED IN THE SAID SECTION 511 (63 STAT. 829) ARE AS FOLLOWS:

* * * (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DATE IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM. * * *

THE FIRST METHOD CONTAINED IN SECTION 511, IN EFFECT, PERMITS A MEMBER TO CONTINUE TO RECEIVE RETIRED PAY AUTHORIZED UNDER LAWS IN EFFECT ON THE DATE IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THE ACT. UNDER THE SECOND METHOD CONTAINED IN SECTION 511, A MEMBER IS ENTITLED TO RETIRED PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE, PERMANENT OR TEMPORARY,"SATISFACTORILY HELD" BY SUCH MEMBER "AS DETERMINED BY THE SECRETARY CONCERNED" AND WHICH SUCH MEMBER WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK OR GRADE, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM. IT IS UNDERSTOOD THAT THE SECRETARY OF THE ARMY DETERMINED THAT NO MEMBER, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, MAY BE CONSIDERED AS HAVING "SATISFACTORILY HELD" A HIGHER GRADE OR RANK UNLESS HE SERVED ON ACTIVE DUTY IN SUCH HIGHER GRADE OR RANK FOR AT LEAST SIX MONTHS. CONSEQUENTLY, SINCE THE OFFICER DID NOT SATISFACTORILY HOLD THE GRADE OR RANK OF BRIGADIER GENERAL AS DETERMINED BY THE SECRETARY OF THE ARMY, HE IS NOT ENTITLED, UNDER SECTION 511, TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY OF A BRIGADIER GENERAL.

THE DISABILITY RETIREMENT PAY AUTHORIZED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT IS BASED ON A PERCENTAGE OF THE MONTHLY BASIC PAY OF THE RANK OR GRADE HELD "AT THE TIME OF THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT," WHICHEVER IS EARLIER. IN THE CASE OF AN OFFICER RETIRED PRIOR TO OCTOBER 1, 1949, AND OTHERWISE ELIGIBLE FOR DISABILITY RETIREMENT PAY, THE "TIME OF HIS RETIREMENT" WOULD, OF COURSE, BE EARLIER THAN THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST AND, HENCE, THE RANK OR GRADE HELD AT THE TIME OF RETIREMENT WOULD BE CONTROLLING FOR PAY PURPOSES, EXCEPT TO THE EXTENT OTHERWISE PROVIDED. ALTHOUGH THE OFFICER,"UPON RETIREMENT" IN 1939, WAS ADVANCED ONE GRADE IN RANK TO THAT OF BRIGADIER GENERAL PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 4, 1915, SUPRA, NEVERTHELESS,"AT THE TIME OF HIS RETIREMENT" HE HELD THE GRADE OR RANK OF COLONEL AND IT IS ON THE BASIS OF SUCH GRADE OR RANK THAT HIS DISABILITY RETIREMENT PAY WOULD HAVE TO BE COMPUTED UNDER SECTION 402 (D) OF THE ACT, SINCE HE IS NOT WITHIN THE PURVIEW OF THE SECOND PROVISO OF THE SAID SECTION 402 (D). THAT PROVISO AUTHORIZES THE DISABILITY RETIREMENT PAY OF MEMBERS WHO HELD A "TEMPORARY" RANK OR GRADE HIGHER THAN THE RANK OR GRADE HELD AT THE TIME OF PLACEMENT OF THE MEMBER'S NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK OR GRADE, AS DETERMINED BY THE SECRETARY CONCERNED, TO BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK OR GRADE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER. THE OFFICER NEVER HELD THE "TEMPORARY" RANK OR GRADE OF BRIGADIER GENERAL. MOREOVER, SINCE HE NEVER SERVED ON ACTIVE DUTY IN SUCH RANK OR GRADE, THE SECRETARY OF THE ARMY PRESUMABLY HAS DETERMINED THAT, WITHIN THE MEANING OF THE STATUTORY PROVISIONS HERE INVOLVED, THE HIGHEST GRADE SATISFACTORILY HELD BY THE OFFICER DURING HIS CAREER WAS THAT OF COLONEL. CONSEQUENTLY, IF THE OFFICER SHOULD ELECT, UNDER SECTION 411, TO RECEIVE THE DISABILITY RETIREMENT PAY AUTHORIZED UNDER SECTION 402 (D), SUCH PAY MUST BE COMPUTED ON THE BASIS OF THE GRADE OR RANK OF COLONEL.