B-132505, MAR 17, 1959

B-132505: Mar 17, 1959

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REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF FIRST LIEUTENANT MAXWELL M. IT WAS CERTIFIED FOR PAYMENT FOR THE PERIOD UP TO FEBRUARY 28. WHICH STATED THAT WE WILL FOLLOW THE RULE ESTABLISHED BY THE COURT OF CLAIMS IN THE TRACY. BUDD CASES WERE BASED UPON SPECIFIC PROVISIONS OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949. HE WAS PAID RETIRED PAY IN ACCORDANCE WITH THAT ELECTION. 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.

B-132505, MAR 17, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J.L. WHIPPLE, DEPARTMENT OF THE ARMY:

YOUR LETTER OF DECEMBER 10, 1958, FORWARDED HERE UNDER D.O. NUMBER 389, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF FIRST LIEUTENANT MAXWELL M. WHITEBROOK, 0288448, REPRESENTING ADJUSTMENT IN 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 THROUGH NOVEMBER 30, 1958.

LIEUTENANT WITEBROOK FILED A CLAIM WITH THIS OFFICE FOR THIS ADJUSTMENT, COVERING THE PERIOD FROM DATE OF RETIREMENT, SEPTEMBER 1, 1950, BASED ON THE DECISION OF THE COURT OF CLAIMS, IN TRACY V. UNITED STATES, 136 C. CLS. 211. ALTHOUGH WE HAD PREVIOUSLY DENIED THIS CLAIM, ON JUNE 25, 1958, IT WAS CERTIFIED FOR PAYMENT FOR THE PERIOD UP TO FEBRUARY 28, 1958, APPARENTLY IN ACCORDANCE WITH OUR DECISION OF MARCH 7, 1958, B-123643, 37 COMP. GEN. 585, WHICH STATED THAT WE WILL FOLLOW THE RULE ESTABLISHED BY THE COURT OF CLAIMS IN THE TRACY, LOWELL (LOWELL V. UNITED STATES, C. CLS. NO. 361-56) AND BUDD (BUDD V. UNITED STATES, C. CLS. NO. 467-56) CASES, THE LATTER TWO DECIDED JANUARY 15, 1958. YOU EXPRESS DOUBT AS TO THE VALIDITY OF CONTINUED PAYMENT, IN VIEW OF OUR LATER DECISION OF OCTOBER 6, 1958 B-136900, 38 COMP. GEN. 268, WHICH STATES IN PART: "THE HOLDINGS AS TO GRADE IN THE TRACY, LOWELL, AND BUDD CASES WERE BASED UPON SPECIFIC PROVISIONS OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949. ONE WHO ELECTS NOT TO COME WITHIN THE SCOPE OF SUCH PROVISIONS CANNOT BENEFIT FROM THEM."

YOU REPORT THAT LIEUTENANT WHITEBROOK RETIRED AUGUST 31, 1950, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 AND 823 RESPECTIVELY, AND SECTION 415 OF THAT ACT AS AMENDED BY THE ACT OF MAY 10, 1950, 64 STAT. 158, DUE TO INCURRING A DISABILITY. ON AUGUST 12, 1950, HE ELECTED TO RECEIVE RETIREMENT BENEFITS UNDER SECTION 415, AS AMENDED, COMPUTED AT 75 PER CENTUM OF THE RATE OF PAY FOR HIS GRADE AS FIRST LIEUTENANT, PURSUANT TO LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. HE WAS PAID RETIRED PAY IN ACCORDANCE WITH THAT ELECTION. THE RECORD SHOWS FURTHER THAT ON DECEMBER 4, 1947, HE ACCEPTED AN APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS, AND IT APPEARS THAT HE PERFORMED NO ACTIVE DUTY IN THAT GRADE.

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 THIRD PAY PERIOD.

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