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B-137269, SEP. 23, 1966

B-137269 Sep 23, 1966
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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 15. YOUR CLAIM WAS ALSO CONSIDERED IN OUR DECISION. THE BASIS FOR YOUR RENEWED REQUEST FOR ADJUSTMENT OF YOUR RETIRED PAY IS A CLIPPING FROM THE ARMY TIMES OF AUGUST 10. IT WAS HELD IN THAT DECISION THAT UNDER THE PROVISIONS OF 10 U.S.C. 1372 (2) A MEMBER OF THE ARMED FORCES WHO IS RETIRED FOR PHYSICAL DISABILITY IS ENTITLED TO THE HIGHEST TEMPORARY (OR PERMANENT) GRADE IN WHICH HE SATISFACTORILY SERVED AND THAT THE "SATISFACTORY SERVICE" COULD BE PRESUMED ON THE BASIS OF THE MEMBER'S EFFICIENCY RATINGS. NO RECORD HAS BEEN FURNISHED SHOWING THAT YOU WERE EVER APPOINTED A LIEUTENANT COLONEL AND THERE IS NO AUTHORITY OF LAW FOR COMPUTING YOUR RETIRED PAY ON THE BASIS OF THAT GRADE.

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B-137269, SEP. 23, 1966

TO MAJOR BEVERLY P. RUTH, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 15, 1966, WITH ENCLOSURE, AGAIN REQUESTING ALLOWANCE OF YOUR CLAIM FOR RETIRED PAY BASED ON THE GRADE OF LIEUTENANT COLONEL RATHER THAN ON THE GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES, THE HIGHEST GRADE YOU HELD. YOUR CLAIM WAS ALSO CONSIDERED IN OUR DECISION, B-137269 OF DECEMBER 7, 1964.

THE BASIS FOR YOUR RENEWED REQUEST FOR ADJUSTMENT OF YOUR RETIRED PAY IS A CLIPPING FROM THE ARMY TIMES OF AUGUST 10, 1966, CONCERNING THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FRIESTEDT V. UNITED STATES, CT.CL. NO. 237-62, DECIDED NOVEMBER 12, 1965.

IT WAS HELD IN THAT DECISION THAT UNDER THE PROVISIONS OF 10 U.S.C. 1372 (2) A MEMBER OF THE ARMED FORCES WHO IS RETIRED FOR PHYSICAL DISABILITY IS ENTITLED TO THE HIGHEST TEMPORARY (OR PERMANENT) GRADE IN WHICH HE SATISFACTORILY SERVED AND THAT THE "SATISFACTORY SERVICE" COULD BE PRESUMED ON THE BASIS OF THE MEMBER'S EFFICIENCY RATINGS. THAT DECISION, HOWEVER, OFFERS NO SUPPORT TO YOUR CLAIM FOR HIGHER RETIRED PAY BASED ON THE GRADE OF LIEUTENANT COLONEL. FRIESTEDT ACTUALLY HAD BEEN APPOINTED AND HAD SERVED IN THE GRADE TO WHICH THE COURT HELD HE SHOULD BE ADVANCED. NO RECORD HAS BEEN FURNISHED SHOWING THAT YOU WERE EVER APPOINTED A LIEUTENANT COLONEL AND THERE IS NO AUTHORITY OF LAW FOR COMPUTING YOUR RETIRED PAY ON THE BASIS OF THAT GRADE.

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