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B-132505, DECEMBER 23, 1959, 39 COMP. GEN. 467

B-132505 Dec 23, 1959
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RANK AT TIME OF RETIREMENT AN ARMY OFFICER WHO AT THE TIME OF DISABILITY RETIREMENT WAS SERVING ON ACTIVE DUTY IN A LOWER RANK. - IS ENTITLED TO RETIRED PAY OF THE HIGHER PERMANENT RESERVE GRADE. 1959: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10. NO. 389) REQUESTING DECISION AS TO WHETHER PAYMENT WAS AUTHORIZED TO BE MADE BY YOU ON A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT MAXWELL M. THE PARTICULAR FACTS CONCERNING LIEUTENANT WHITEBROOK'S MILITARY RETIRED PAY STATUS WERE FULLY SET FORTH IN OUR DECISION TO YOU OF MARCH 17. IN WHICH YOU WERE ADVISED IN PERTINENT PART AS FOLLOWS: THERE IS PRESENTLY BEFORE THE COURT OF CLAIMS. A DETERMINATION AS TO THE CLAIMANT'S RIGHTS WILL NOT BE MADE AT THIS TIME IN THE INSTANT CASE.

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B-132505, DECEMBER 23, 1959, 39 COMP. GEN. 467

MILITARY PERSONNEL - PAY - RETIRED - DISABILITY - HIGHER RESERVE GRADE V. RANK AT TIME OF RETIREMENT AN ARMY OFFICER WHO AT THE TIME OF DISABILITY RETIREMENT WAS SERVING ON ACTIVE DUTY IN A LOWER RANK, ARMY OF THE UNITED STATES, ALTHOUGH HE HELD A HIGHER PERMANENT RESERVE RANK IN THE OFFICERS' RESERVE CORPS, AND WHO ELECTED UNDER SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949 TO RECEIVE RETIRED PAY COMPUTED AT 75 PERCENT OF HIS ACTIVE DUTY RANK UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949--- PRIOR TO THE CAREER COMPENSATION ACT OF 1949--- IS ENTITLED TO RETIRED PAY OF THE HIGHER PERMANENT RESERVE GRADE, NOTWITHSTANDING THAT THE MEMBER NEVER SERVED ON ACTIVE DUTY IN SUCH GRADE, IN ACCORDANCE WITH THE HOLDING IN NERI V. UNITED STATES, C.1CLS. NO. 81-58, APRIL 8, 1959.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, DECEMBER 23, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1958 (FORWARDED HERE AS DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NO. 389) REQUESTING DECISION AS TO WHETHER PAYMENT WAS AUTHORIZED TO BE MADE BY YOU ON A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT MAXWELL M. WHITEBROOK, REPRESENTING ADJUSTMENT IN HIS RETIRED PAY BETWEEN THAT OF FIRST LIEUTENANT, THIRD PAY PERIOD, AND THAT OF CAPTAIN, FOURTH PAY PERIOD, WITH OVER 18 BUT LESS THAN 21 YEARS' SERVICE FOR THE PERIOD MARCH 1 TO NOVEMBER 30, 1958, INCLUSIVE.

THE PARTICULAR FACTS CONCERNING LIEUTENANT WHITEBROOK'S MILITARY RETIRED PAY STATUS WERE FULLY SET FORTH IN OUR DECISION TO YOU OF MARCH 17, 1959, B-132505, IN WHICH YOU WERE ADVISED IN PERTINENT PART AS FOLLOWS:

THERE IS PRESENTLY BEFORE THE COURT OF CLAIMS, THE PETITION OF CAPTAIN FRANK D. NERI, USAR ( NO. 81-58 FILED FEBRUARY 28, 1958), WHICH COVERS THE IDENTICAL SITUATION HERE INVOLVED. IN VIEW OF THE PENDENCY OF THAT ACTION, A DETERMINATION AS TO THE CLAIMANT'S RIGHTS WILL NOT BE MADE AT THIS TIME IN THE INSTANT CASE. ACCORDINGLY, NO PAYMENTS OF ADJUSTED RETIRED PAY ON THE BASIS OF THE GRADE OF CAPTAIN SHOULD BE MADE. PAYMENTS MAY CONTINUE, OF COURSE, OF RETIRED PAY TO LIEUTENANT WHITEBROOK, BASED ON THE RATE PREVIOUSLY PAID HIM AS A FIRST LIEUTENANT, THIRD PAY PERIOD.

ON APRIL 8, 1959, THE COURT OF CLAIMS HELD THAT NERI V. UNITED STATES, C.1CLS. 81-58, APRIL 8, 1959, WAS ENTITLED UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, TO THE RETIRED PAY OF A HIGHER PERMANENT RESERVE GRADE--- IN WHICH HE HAD NEVER SERVED--- THAN THE ARMY OF THE UNITED STATES GRADE IN WHICH HE WAS SERVING ON ACTIVE DUTY WHEN HE RETIRED. THE CONCLUSION REACHED BY THE COURT OF CLAIMS IN THE NERI DECISION RELATIVE TO THE PROVISIONS OF SECTION 1254, REVISED STATUTES, 10 U.S.C. 3961, GOVERNING THE GRADE OR RANK HELD AT DATE OF RETIREMENT FOR PURPOSES OF COMPUTING RETIRED PAY REFLECTS THE SAME VIEWS (INCLUDING THE DISSENTING OPINIONS OF JUDGE LARAMORE AND CHIEF JUDGE JONES) THAT WERE EXPRESSED IN TRACY V. UNITED STATES, 136 C.1CLS. 211 AND ALSO IN THE BUDD V. UNITED STATES C.1CLS. NO. 467-56) AND LOWELL V. UNITED STATES, C.1CLS. NO. 361-56) DECISIONS OF JANUARY 15, 1958, WITH RESPECT TO THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), AS AMENDED AND CODIFIED.

THE DECISION IN THE NERI CASE HAS BECOME FINAL AND IN THE CIRCUMSTANCES PRESENTED IT IS CONCLUDED THAT THIS OFFICE WILL FOLLOW THAT RULE HEREAFTER IN ACTING UPON SIMILAR CLAIMS PRESENTED HERE FOR SETTLEMENT. ALSO, OTHERWISE PROPER PAYMENTS OF RETIRED PAY MADE ADMINISTRATIVELY IN ACCORDANCE WITH THE HOLDING OF THE NERI CASE WILL NOT BE QUESTIONED IN THE AUDIT OF RETIRED PAY ACCOUNTS.

ACCORDINGLY, YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY ACCOUNT OF FIRST LIEUTENANT MAXWELL M. WHITEBROOK TO THE GRADE OF CAPTAIN EFFECTIVE MARCH 1, 1958, THE DATE FOLLOWING THE PERIOD ( SEPTEMBER 1, 1950, TO FEBRUARY 28, 1958, INCLUSIVE) THAT WAS COVERED IN GENERAL ACCOUNTING OFFICE CLAIMS DIVISION CERTIFICATION DATED JUNE 25, 1958.

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