B-141472, SEP. 14, 1965

B-141472, SEP. 14, 1965

TO FIRST LIEUTENANT JOHN E. HILLIARE, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 6, 1965, AND AUGUST 16, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION ON JUNE 4, 1964. YOU WERE RELEASED FROM YOUR LAST TOUR OF ACTIVE DUTY ON APRIL 30, 1948, IN THE GRADE OF CAPTAIN AND AT THAT TIME YOU WERE RECEIVING ACTIVE DUTY PAY BASED ON OVER SIX YEARS OF SERVICE. YOU ARE THEREFORE CLAIMING RETIRED PAY AS A CAPTAIN WITH OVER SIX YEARS OF SERVICE RATHER THAN THE RETIRED PAY YOU ARE RECEIVING, WHICH IS BASED ON THE GRADE OF FIRST LIEUTENANT WITH OVER THREE BUT LESS THAN SIX YEARS OF SERVICE.

THE RECORD NOW BEFORE OUR OFFICE SHOWS THAT YOU SERVED IN THE ARMY OF THE UNITED STATES FROM MAY 26, 1920, TO MAY 25, 1921, A PERIOD OF ONE YEAR; THAT YOU AGAIN SERVED IN THE ARMY OF THE UNITED STATES DURING WORLD WAR II AND WERE RELEASED TO INACTIVE DUTY STATUS ON OCTOBER 15, 1945; AND THAT YOU AGAIN SERVED ON ACTIVE DUTY FROM MAY 7, 1947, TO APRIL 30, 1948.

BEGINNING AUGUST 12, 1947, YOU WERE PAID ACTIVE DUTY PAY AT THE RATE PRESCRIBED FOR A FIRST LIEUTENANT WITH OVER SIX YEARS OF SERVICE IN ACCORDANCE WITH THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359, AS AMENDED, 37 U.S.C. 101, 103A (1946 ED.), WHICH AUTHORIZED CREDITING INACTIVE SERVICE AS WELL AS ACTIVE SERVICE FOR LONGEVITY PURPOSES. YOU WERE REGARDED AS HAVING COMPLETED SIX YEARS ON AUGUST 11, 1947, BY COUNTING YOUR INACTIVE SERVICE FROM OCTOBER 16, 1945, TO MAY 6, 1947. THE PAY YOU RECEIVED AS A FIRST LIEUTENANT WITH OVER SIX YEARS OF SERVICE WAS THE PAY OF THE SECOND PAY PERIOD, THE PAY OF THE THIRD PAY PERIOD BEING AUTHORIZED BY THE 1942 ACT TO BE PAID TO CAPTAINS OF THE ARMY AND TO FIRST LIEUTENANTS WHO HAD COMPLETED TEN YEARS OF SERVICE. IT APPEARS THAT YOUR REFERENCE TO THE ,THIRD PAY PERIOD" WAS INTENDED AS A REFERENCE TO THE THIRD STEP IN GRADE BASED ON LONGEVITY INCREASES. ON APRIL 30, 1948, YOU WERE GIVEN A TERMINAL LEAVE PROMOTION TO THE GRADE OF CAPTAIN AND YOU THEREFORE RECEIVED ACTIVE DUTY PAY AND ALLOWANCES OF THE THIRD PAY PERIOD AS A CAPTAIN WITH OVER SIX YEARS OF SERVICE FOR THAT DAY AND FOR 29 DAYS OF UNUSED LEAVE.

ON MARCH 25, 1954, YOUR RECORDS WERE CORRECTED TO SHOW THAT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 15, 1945, YOU WERE INCAPACITATED FOR ACTIVE SERVICE, THAT THE INCAPACITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF THE SERVICE HAVING BEEN INCURRED IN LINE OF DUTY WHILE SERVING ON ACTIVE DUTY. YOU THEREUPON BECAME ENTITLED TO RECEIVE DISABILITY RETIRED PAY EFFECTIVE FROM OCTOBER 16, 1945, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, WHICH AUTHORIZED FOR OFFICERS OF THE ARMY OF THE UNITED STATES WHO WERE SO DISABLED THE SAME RETIREMENT BENEFITS AS WERE THEN PROVIDED BY LAW FOR OFFICERS OF THE REGULAR ARMY. OFFICERS OF THE REGULAR ARMY WERE ENTITLED UNDER SECTIONS 1251 AND 1274 OF THE REVISED STATUTES TO BE RETIRED UPON THE ACTUAL RANK HELD AT THE TIME OF RETIREMENT AND TO RECEIVE 75 PERCENTUM OF THE PAY OF THAT RANK. THEREFORE YOUR RETIRED PAY WAS ESTABLISHED EFFECTIVE OCTOBER 16, 1945, AT 75 PERCENT OF THE PAY OF A FIRST LIEUTENANT WITH OVER THREE BUT LESS THAN SIX YEARS OF SERVICE.

THE PERIOD OF INACTIVE SERVICE ON THE RETIRED LIST, OCTOBER 16, 1945, TO MAY 6, 1947, WAS CREDITABLE FOR LONGEVITY PURPOSES DURING YOUR SUBSEQUENT TOUR OF ACTIVE DUTY UNDER THE PROVISIONS OF THE 1942 ACT, AS AMENDED, ALLOWING YOU TO RECEIVE ACTIVE DUTY PAY AS AN OFFICER WITH OVER SIX YEARS OF SERVICE BUT SUCH INACTIVE TIME ON THE RETIRED LIST IS NOT CREDITABLE IN COMPUTATION OF RETIRED PAY GENERALLY. THE FIRST PARAGRAPH OF SECTION 15 OF THE 1942 ACT PROVIDES IN PART AS FOLLOWS:

"ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS * * *.'

THE ACTIVE SERVICE PERFORMED BY YOU FROM MAY 7, 1947, TO APRIL 30, 1948, IS CREDITABLE UNDER THE ABOVE-QUOTED PROVISION BUT THAT SERVICE WHEN ADDED TO THE SERVICE CREDITABLE ON THE DATE OF RETIREMENT TOTALS LESS THAN SIX YEARS. SOME OFFICERS BECAME ENTITLED TO INCLUDE INACTIVE TIME ON THE RETIRED LIST AND PROMOTIONS IN GRADE RECEIVED WHILE SERVING AFTER RETIREMENT IN COMPUTATION OF THEIR RETIRED PAY THEREAFTER (SEE GORDON V. UNITED STATES, 134 CT.CL. 840 (1956) ( BY APPLICATION OF THE "RE- RETIREMENT" THEORY IN CONJUNCTION WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WHICH IS AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

SINCE YOU ARE NOT A REGULAR OFFICER WHO SERVED PRIOR TO NOVEMBER 12, 1918, YOU DO NOT QUALIFY FOR SUCH BENEFITS.

YOU CITED THE DECISION IN THE CASE OF CADDINGTON V. UNITED STATES, 147 CT.CL. 629 (1959), AS POSSIBLY FURNISHING A BASIS FOR COMPUTATION OF YOUR RETIRED PAY ON THE GRADE OF CAPTAIN. IN THAT DECISION THE COURT ALLOWED RETIRED PAY ON THE HIGHER GRADE IN THE ABSENCE OF AN ACTUAL PROMOTION BECAUSE THE COURT WAS CONVINCED THAT THE OFFICER WOULD HAVE BEEN PROMOTED TO THE GRADE IN QUESTION IF CERTAIN RECORDS HAD NOT BEEN LOST. THERE IS NO EVIDENCE OF LOST RECORDS WHICH MIGHT HAVE FURNISHED THE BASIS FOR AN EARLIER PROMOTION IN YOUR CASE. IN THE CASE OF CARTER V. UNITED STATES, 152 CT.CL. 334 (1961), INVOLVING AN OFFICER WHOSE RECORDS AFTER RETIREMENT WERE RETROACTIVELY CORRECTED TO SHOW THAT HE HAD RECEIVED A TERMINAL LEAVE PROMOTION ON A DATE SUBSEQUENT TO RETIREMENT, THE COURT STATED IN PART:

"IN ORDER FOR THE PLAINTIFF TO RECOVER INCREASED RETIRED PAY, HIS PROMOTION TO COLONEL MUST BE EFFECTIVE NO LATER THAN THE DATE OF HIS RETIREMENT, SINCE RETIRED PAY IS BASED ON THE ACTIVE DUTY PAY BEING RECEIVED AT THE TIME OF RETIREMENT, OR IF EFFECTED WHILE ON THE RETIRED LIST, A STATUTORY PROVISION AUTHORIZING INCREASED PAY MUST BE SHOWN. * *

YOU WERE PROMOTED TO THE GRADE OF CAPTAIN AFTER YOUR RETIREMENT. WE KNOW OF NO STATUTORY PROVISION AUTHORIZING PAYMENT TO YOU OF RETIRED PAY COMPUTED ON THE PAY OF A CAPTAIN RATHER THAN A FIRST LIEUTENANT.

CONCERNING YOUR REQUEST THAT YOUR RECORDS BE CORRECTED IN SUCH MANNER AS TO ENTITLE YOU TO RETIRED PAY COMPUTED ON THE PAY OF A CAPTAIN, YOU ARE ADVISED THAT WE ARE WITHOUT AUTHORITY TO CHANGE UNDER ANY CIRCUMSTANCES. YOUR RECORD WAS CORRECTED IN 1954 TO ENTITLE YOU TO RETIRED PAY COMMENCING OCTOBER 16, 1945, PURSUANT TO ACTION TAKEN BY THE ASSISTANT SECRETARY OF THE AIR FORCE APPROVING RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS UNDER AUTHORITY CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, CH. 753, 60 STAT. 812, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, CH. 588, 65 STAT. 655. IT IS THERE PROVIDED THAT CORRECTIONS SO MADE ARE "FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD.'