B-28153, JUL 14, 1947

B-28153, JUL 14, 1947

PRECIS-UNAVAILABLE

COLONEL CARL WITCHER, F. D., U.S. ARMY:

CHIEF OF FINANCE

WAR DEPARTMENT

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 10, 1947, AS FOLLOWS:

"1. ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $199.38 COVERING DIFFERENCE IN RETIRED PAY TO COLONEL JOSEPH T. CLEMENT, 0-14022, WHICH IS BEFORE THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT. THE DIFFERENCE IN RETIRED PAY CLAIMED ON THIS VOUCHER IS FOR LONGEVITY ON ACCOUNT OF INACTIVE TIME ON THE RETIRED LIST. IT APPEARS THAT COLONEL CLEMENT WAS RETIRED IN THE GRADE OF MAJOR 4 JANUARY 1921 ON ACCOUNT OF DISABILITY THE RESULT OF WOUNDS RECEIVED IN ACTION, AND WAS RECALLED TO ACTIVE DUTY 1 APRIL 1941 AND RELIEVED FROM ACTIVE DUTY 23 MARCH 1944. BY REASON OF HAVING INCURRED ADDITIONAL PHYSICAL DISABILITY, THIS OFFICER WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF COLONEL IN ACCORDANCE WITH PARAGRAPH 12, SPECIAL ORDERS 197, WAR DEPARTMENT 1946. DUE TO ORIGINAL RETIREMENT BY REASON OF WOUNDS RECEIVED IN ACTION, THIS OFFICER RECEIVED PERIODIC INCREASES IN RETIRED PAY AND AT THE DATE OF ADVANCEMENT ON THE RETIRED LIST WAS RECEIVING THE RETIRED PAY OF A MAJOR WITH OVER 30 YEARS SERVICE IN THE FOURTH PAY PERIOD.

"2. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER THIS OFFICER IS ENTITLED TO RETIRED PAY OF A COLONEL WITH OVER 30 YEARS SERVICE IN VIEW OF ADVANCEMENT ON THE RETIRED LIST AND CHANGE IN STATUS TO THAT OF DISABILITY INCURRED WHILE SERVING IN THE GRADE OF COLONEL NOT AS A RESULT OF WOUNDS RECEIVED IN ACTION. IT IS, THEREFORE, REQUESTED THAT THIS VOUCHER BE FORWARDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR ADVANCE DECISION. PENDING RECEIPT OF DECISION COLONEL CLEMENT IS BEING PAID RETIRED PAY ON THE BASIS OF OVER 21 YEARS SERVICE."

THE ACT OF MARCH 2, 1903, 32 STAT. 932, PROVIDES, IN PART, AS FOLLOWS:

"*** HEREAFTER, EXCEPT IN CASE OF OFFICERS RETIRED ON ACCOUNT OF WOUNDS RECEIVED IN BATTLE, NO OFFICER NOW ON THE RETIRED LIST SHALL BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY, AND OFFICERS HEREAFTER RETIRED, EXCEPT AS HEREIN PROVIDED, SHALL NOT BE ALLOWED OR PAID ANY FURTHER INCREASE OF LONGEVITY PAY ABOVE THAT WHICH HAD ACCRUED AT DATE OF THEIR RETIREMENT."

THE ABOVE PROVISION WAS REPEALED AS TO OFFICERS APPOINTED ON OR AFTER JULY 1, 1922. 7 COMP.GEN. 735. CF. 23 COMP.GEN. 284. HOWEVER, IT APPEARS THAT COLONEL CLEMENT WAS APPOINTED AN OFFICER PRIOR TO JULY 1, 1922, AND THAT HE WAS RETIRED AS A MAJOR FOR DISABILITY RESULTING FROM WOUNDS RECEIVED IN BATTLE. ACCORDING, HE WAS ENTITLED TO LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST IN THE COMPUTATION OF HIS RETIRED PAY. 7 COMP.GEN. 735, SUPRA; 24 ID. 171. HIS PROMOTION TO THE RANK OF COLONEL ON THE RETIRED LIST IS INDICATED TO HAVE BEEN MADE UNDER THE ACT OF JUNE 29, 1943, 57 STAT. 249, SECTION 4 OF WHICH READS AS FOLLOWS:

"ANY OFFICER OF THE REGULAR ARMY ON THE RETIRED LIST WHO SHALL HAVE BEEN PLACED THEREON BY A REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS ADDITIONAL PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE, BE PROMOTED ON THE RETIRED LIST TO SUCH HIGHER GRADE AND RECEIVED RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE: PROVIDED, THAT THE SECRETARY OF WAR, OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE, SHALL FIND THAT THE ADDITIONAL PHYSICAL DISABILITY IS INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER GRADE AND NOT LESS THAN 30 PER CENTUM PERMANENT."

COLONEL CLEMENT'S PROMOTION ON THE RETIRED LIST UNDER THE ABOVE QUOTED PROVISION DID NOT CHANGE HIS RETIRED STATUS BUT MERELY CHANGED THE RANK OR GRADE UPON WHICH HIS RETIRED PAY IS TO BE COMPUTED. HE REMAINED AN OFFICER, APPOINTED PRIOR TO JULY 1, 1922, WHO WAS RETIRED FOR DISABILITY RESULTING FROM WOUNDS RECEIVED IN BATTLE. HIS RETIRED PAY IS TO BE COMPUTED "AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE" AND SINCE AN OFFICER OF SUCH HIGHER GRADE WHOSE RETIRED STATUS IS THE SAME AS COLONEL CLEMENT'S WOULD BE ENTITLED TO LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST IN THE COMPUTATION OF HIS RETIRED PAY, COLONEL CLEMENT WOULD BE ENTITLED TO SUCH BENEFIT. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, PAYMENT THEREOF BEING AUTHORIZED, IF IT IS OTHERWISE CORRECT.