B-130134, FEB. 1, 1957

B-130134, FEB. 1, 1957

TO MAJOR MORRIS M. ORR, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1956, CONCERNING YOUR CLAIM FOR MILITARY RETIRED PAY FOR THE MONTH OF JUNE 1950. ALSO, WE HAVE RECEIVED YOUR LETTERS OF SEPTEMBER 28 AND DECEMBER 21, 1956, CONCERNING YOUR CLAIM FOR REFUND OF RETIREMENT DEDUCTIONS MADE FROM YOUR CIVILIAN SALARY FOR THE PERIOD FROM JUNE 1, 1950, TO DECEMBER 31, 1953.

YOUR CLAIM FOR MILITARY RETIRED PAY FOR THE MONTH OF JUNE 1950 WAS DENIED BY OUR CLAIMS DIVISION IN A LETTER DATED SEPTEMBER 24, 1956, ON THE GROUND THAT SINCE YOU DID NOT MAKE APPLICATION FOR SUCH PAY UNTIL JUNE 2, 1950, YOU DID NOT BECOME ENTITLED TO SUCH PAY UNTIL JULY 1, 1950, THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH YOUR APPLICATION WAS FILED. YOU SAY THAT THE DATE OF YOUR RETIREMENT WAS MAY 31, 1950, AND THAT YOU MADE APPLICATION FOR YOUR BACK MILITARY RETIRED PAY FROM JUNE 1, 1950, THE DATE OF ACCEPTANCE OF YOUR CIVILIAN POSITION.

YOUR CLAIM FOR RETIRED PAY IS BASED ON THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087-1091. SECTION 302 (A) OF THAT ACT PROVIDES IN PERTINENT PART:

"ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER, WARRANT OFFICER, FLIGHT OFFICER, OR ENLISTED PERSON IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF, AND ALSO INCLUDING THE FEDERALLY RECOGNIZED NATIONAL GUARD PRIOR TO 1933, THE UNITED STATES NAVY INCLUDING THE RESERVE COMPONENTS THEREOF, THE UNITED STATES MARINE CORPS, INCLUDING THE RESERVE COMPONENTS THEREOF, OR THE UNITED STATES COAST GUARD, INCLUDING THE RESERVE COMPONENTS THEREOF, AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY * * *.'

YOU WILL NOTE THAT THE LAW IS NOT SELF-EXECUTING; IT EXPRESSLY PROVIDES THAT QUALIFIED PERSONS SHALL "UPON APPLICATION THEREFOR" BE GRANTED RETIRED PAY. RETIRED PAY CANNOT ACCRUE PRIOR TO THE DATE APPLICATION IS FILED. IN OUR DECISION DATED JANUARY 11, 1951, 30 COMP. GEN. 287, TO THE SECRETARY OF THE AIR FORCE, WE HELD QUOTING THE SYLLABUS, AS FOLLOWS:

"UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, PROVIDING THAT OTHERWISE QUALIFIED PERSONS SHALL,"UPON APPLICATION THEREFOR," BE GRANTED RETIRED PAY, AN APPLICANT WHO QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948, OR BETWEEN THAT DATE AND JANUARY 1, 1949--- THE EFFECTIVE DATE OF THE ACT- -- MAY BE PAID RETIRED PAY BEGINNING WITH THE DATE HIS APPLICATION WAS FILED, IF TIMELY FILED, ALTHOUGH ADMINISTRATIVE APPROVAL THEREOF WAS DELAYED; HOWEVER, IN ALL OTHER CASES WHERE AN APPLICATION IS OR HAS BEEN PROPERLY APPROVED, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICANT INITIALLY MEETS THE STATUTORY AGE AND SERVICE REQUIREMENTS, WHICHEVER IS LATER. COMP. GEN. 321, MODIFIED IN PART.'

A REPORT DATED MAY 25, 1956, FROM THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WHICH WAS IN THE FILE WHEN THE LETTER OF SEPTEMBER 24, 1956, WAS WRITTEN, INDICATED THAT YOUR APPLICATION FOR RETIRED PAY WAS FILED ON JUNE 2, 1950. AFTER THE RECEIPT OF YOUR LETTER OF OCTOBER 5, 1956, WE OBTAINED FROM THE DEPARTMENT OF THE ARMY A COPY OF YOUR APPLICATION FOR RETIREMENT BENEFITS UNDER TITLE III OF THE ACT OF JUNE 29, 1948. THAT APPLICATION IS ON NME FORM NO. 108. ALTHOUGH THE APPLICATION WAS DATED MAY 31, 1950, IT WAS NOT RECEIVED IN THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY UNTIL JUNE 2, 1950.

ACCORDINGLY, BASED ON THE APPLICABLE PROVISIONS OF LAW AND IN ACCORDANCE WITH THE RULE STATED IN THE DECISION OF JANUARY 11, 1951, YOUR RETIRED PAY STATUS BECAME EFFECTIVE ON JULY 1, 1950, AND, THEREFORE, YOUR CLAIM FOR RETIRED PAY FOR JUNE 1950 WAS PROPERLY DENIED.

YOUR CLAIM FOR REFUND OF RETIREMENT DEDUCTIONS MADE FROM YOUR CIVILIAN SALARY FOR THE PERIOD FROM JUNE 1, 1950, TO DECEMBER 31, 1953, WHICH IS A NEW CLAIM, WILL BE CONSIDERED AS SUCH BY OUR CLAIMS DIVISION AND YOU WILL BE ADVISED OF THE ACTION TAKEN.