B-137269, DEC. 7, 1964

B-137269, DEC. 7, 1964

TO MAJOR BEVERLY P. RUTH, AUS, RETIRED:

REFERENCE IS MADE TO YOUR FIRST INDORSEMENT TO LETTER DATED SEPTEMBER 28, 1964, TO YOU FROM THE RETIRED PAY DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 15, 1960, WHICH DISALLOWED YOUR CLAIM FOR HIGHER RETIRED PAY OF A LIEUTENANT COLONEL RATHER THAN THAT OF A MAJOR IN THE ARMY OF THE UNITED STATES.

WHILE YOU WERE SERVING IN THE U.S. ARMY IN THE GRADE OF CHIEF WARRANT OFFICER, IT WAS DETERMINED THAT YOU WERE PERMANENTLY UNFIT FOR DUTY BY REASON OF 70 PERCENT PHYSICAL DISABILITY AND YOU WERE RETIRED FROM ACTIVE SERVICE MARCH 31, 1952, WITH THE GRADE OF CAPTAIN, AS PROVIDED BY SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816 AND 823. YOU WERE SUBSEQUENTLY PAID AN ADJUSTMENT OF RETIRED PAY FOR THE DIFFERENCE BETWEEN RETIRED PAY RECEIVED AS CAPTAIN AND THAT DUE AS A MAJOR--- THE PERMANENT GRADE HELD BY YOU IN THE OFFICERS' RESERVE CORPS AT TIME OF RETIREMENT--- ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JAKWAY V. UNITED STATES, 146 CT.CL. 482 (1959). IN THAT CASE THE COURT OF CLAIMS HELD THAT A WARRANT OFFICER, WHO HAD SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND HELD A PERMANENT RESERVE COMMISSION AS A COLONEL AT THE TIME HE WAS RETIRED BY REASON OF PHYSICAL DISABILITY UNDER THE PROVISIONS OF SECTIONS 402 (B) AND 409 OF THE CAREER COMPENSATION ACT OF 1949, BECAME ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF A COLONEL AS REQUIRED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, BY VIRTUE OF SECTION 402 (I) OF THE 1949 ACT.

YOUR CLAIM FOR RETIRED PAY COMPUTED ON THE PAY OF A LIEUTENANT COLONEL WAS ON THE BASIS THAT WHEN YOU SERVED ON ACTIVE DUTY AS A MAJOR PRIOR TO OCTOBER 1, 1949, YOU RECEIVED THE SAME PAY AS A LIEUTENANT COLONEL UNDER THE PROVISIONS OF THE 1942 PAY ACT. THAT CLAIM WAS DISALLOWED FOR THE REASONS THAT THERE IS NO RECORD THAT YOU EVER HELD THE RANK OF LIEUTENANT COLONEL AND THAT THE RETIRED PAY OF A MAJOR WHICH YOU ARE RECEIVING IS THE HIGHEST RATE OF RETIRED PAY TO WHICH YOU ARE ENTITLED UNDER THE PERTINENT STATUTES AND REGULATIONS.

WITH YOUR RENEWED REQUEST FOR ADJUSTMENT OF YOUR RETIRED PAY YOU FORWARDED A COPY OF AN ARTICLE WHICH APPEARED ON PAGE 10 OF THE SEPTEMBER 9, 1964, EDITION OF ARMY TIMES RELATING TO RETIRED WARRANT OFFICERS WITH WORLD WAR I ARMY SERVICE RECEIVING RETIRED PAY AT THE RATE OF 75 PERCENT OF ACTIVE-DUTY PAY. IT APPEARS FROM THE RECORD BEFORE THIS OFFICE THAT YOU ARE RECEIVING RETIRED PAY AT THE RATE OF 75 PERCENT OF ACTIVE-DUTY PAY. HENCE, THE MATTER THERE DISCUSSED WILL NOT SERVE TO INCREASE THE AMOUNT OF RETIRED PAY TO WHICH YOU ARE ENTITLED, INASMUCH AS YOU ARE RECEIVING THE MAXIMUM RATE OF RETIRED PAY (75 PERCENT OF ACTIVE DUTY PAY).

A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH APPOINTED AND IN WHICH HE SERVED. THE FACT THAT THE PAY OF A MAJOR WITH OVER 23 YEARS OF SERVICE AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY WHILE SERVING AS A MAJOR IN 1947 WAS THE SAME AS THAT OF A LIEUTENANT COLONEL WITH THE SAME LENGTH OF SERVICE IS WITHOUT LEGAL SIGNIFICANCE. BASED ON THE RULE IN THE JAKWAY CASE YOU WERE RETIRED IN 1952 AS A MAJOR UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, AND BECAME ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE PAY OF SUCH GRADE UNDER THE PROVISIONS OF SECTION 402 (D) OF THAT ACT. SINCE YOU HAVE RECEIVED DISABILITY RETIRED PAY AT THE HIGHEST RATE TO WHICH YOU ARE ENTITLED, NO ADDITIONAL AMOUNT IS FOUND TO BE DUE YOU. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 15, 1960, IS SUSTAINED.