B-168296, JAN. 6, 1970

B-168296, JAN. 6, 1970

MILITARY--DISABILITY RETIREMENT--PROMOTION DECISION TO CHIEF, RETIRED PAY DIVISION, USAF, CONCERNING VOUCHER COVERING DIFFERENCE IN RETIRED PAY COMPUTED ON PAY OF GRADE OF MAJOR AND THAT OF LIEUTENANT COLONEL. AN AIR FORCE OFFICER WHO AFTER ISSUANCE OF AN ORDER DATED SEPTEMBER 22, 1967, AUTHORIZING RETIREMENT FOR PHYSICAL DISABILITY IN THE GRADE OF MAJOR TO BE EFFECTIVE FEBRUARY 1, 1968, WAS PROMOTED ON NOVEMBER 20, 1967, TO THE GRADE OF LIEUTENANT COLONEL MAY NOT, UNDER THE REGULATIONS, HAVE THE PROMOTION ORDER REGARDED AS EFFECTIVE IN VIEW OF THE PRIOR RETIREMENT ORDER. HOWEVER, THAT WOULD NOT PRECLUDE ENTITLEMENT TO THE RETIRED GRADE OF LIEUTENANT COLONEL IF HE MET THE REQUIREMENTS OF 10 U.S.C. 1372(4).

TO MAJOR J. H. JENKINS:

REFERENCE IS MADE TO AFAFC FORM 540-11, DATED APRIL 28, 1969, FORWARDING FOR SETTLEMENT AS A CLAIM A VOUCHER IN THE AMOUNT OF $113.87 IN FAVOR OF LIEUTENANT COLONEL VERNON A. CARTWRIGHT, FV 2037951, USAF, RETIRED, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE PAY OF THE GRADE OF MAJOR AND THAT OF LIEUTENANT COLONEL FOR THE MONTH OF MAY 1969. YOUR TRANSMITTAL WILL BE TREATED AS A REQUEST FOR AN ADVANCE DECISION.

COLONEL CARTWRIGHT APPEARED BEFORE A USAF PHYSICAL EVALUATION BOARD CONVENED AT RANDOLPH AIR FORCE BASE, TEXAS, ON AUGUST 24, 1967, WHICH FOUND HIM TO BE 20 PERCENT PERMANENTLY DISABLED AND RECOMMENDED HIS PERMANENT RETIREMENT. YOU REPORT THAT ON SEPTEMBER 20, 1967, THE PROMOTION SELECTION BOARD MET AND AUTHORIZED HIS PROMOTION TO THE GRADE OF LIEUTENANT COLONEL EFFECTIVE NOVEMBER 20, 1967.

SPECIAL ORDER NO. AC-23230, DATED SEPTEMBER 22, 1967, AUTHORIZED THE RETIREMENT OF COLONEL CARTWRIGHT IN THE GRADE OF MAJOR PURSUANT TO 10 U.S.C. 1201 EFFECTIVE FEBRUARY 1, 1968, WITH RETIRED PAY COMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 8911 AND 8991. BY SPECIAL ORDER AB 2563, DATED NOVEMBER 20, 1967, HE WAS PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COLONEL, USAF, PURSUANT TO 10 U.S.C. 8442 AND 8447(B) EFFECTIVE THAT DATE WITH DATE OF RANK FROM JULY 25, 1967, AND BY SPECIAL ORDER NO. AC-1332, DATED JANUARY 15, 1968, SPECIAL ORDER NO. 23230 WAS REVOKED AND HE WAS RETIRED IN THE GRADE OF LIEUTENANT COLONEL EFFECTIVE FEBRUARY 1, 1968, PURSUANT TO 10 U.S.C. 1201.

THE PROPRIETY OF THE PROMOTION IS QUESTIONED BECAUSE OF A CONFLICT STATED TO EXIST BETWEEN THE PROVISIONS OF PARAGRAPH 1603, AFM 35-4 AND THE PROVISIONS OF PARAGRAPH 23, AFR 36-89, AND ALSO BECAUSE OF THE LACK OF CLARITY IN PRINCIPLE BETWEEN THE HOLDINGS IN OUR DECISIONS 21 COMP. GEN. 826 (1942) AND B-106161, NOVEMBER 29, 1951, ON THE ONE HAND AND 42 COMP. GEN. 314 (1962) AND 685 (1963) ON THE OTHER. YOU SAY THAT COLONEL CARTWRIGHT'S RETIRED PAY WAS REDUCED TO THAT OF A MAJOR EFFECTIVE MAY 1, 1969, AND THAT FURTHER ADJUSTMENT OF HIS RETIRED PAY WILL BE SUSPENDED PENDING OUR DETERMINATION.

AIR FORCE MANUAL 35-4 PRESCRIBES THE PROCEDURES FOR IMPLEMENTING CHAPTER 61, TITLE 10, U.S. CODE, PROVIDING FOR RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY. PARAGRAPH 1603 OF THAT MANUAL, ISSUED AUGUST 10, 1965, PROVIDED IN PERTINENT PART AS FOLLOWS:

"UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAW, A MEMBER WHO IS RETIRED FOR DISABILITY OR WHOSE NAME IS PLACED ON THE TDRL IS ENTITLED TO THE GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

"A. THE ACTIVE DUTY GRADE IN WHICH HE IS SERVING WHEN RETIRED.

"NOTE. A MEMBER BECOMES INELIGIBLE FOR TEMPORARY PROMOTION TO THE GRADE OF MAJOR OR ABOVE ON THE DATE THAT RETIREMENT OR SEPARATION UNDER THIS MANUAL IS APPROVED, EVEN THOUGH HIS NAME IS ON A SELECTED LIST (REF PARA 17E, AFR 36-89)."

PARAGRAPH 17, AFR 36-89, SEPTEMBER 2, 1964, ISSUED UNDER THE AUTHORITY OF 10 U.S.C. 8442, RATHER THAN PARAGRAPH 23, AFR 36-89, AUGUST 7, 1968, WAS IN EFFECT AT THE TIME OF COLONEL CARTWRIGHT'S RETIREMENT AND PROVIDED IN PERTINENT PART THAT:

"17. ELIGIBILITY FOR PROMOTION. THE TEMPORARY PROMOTION PROGRAM IS ALIGNED WITH THE REGULAR AIR FORCE PERMANENT PROMOTION PROGRAM TO THE EXTENT THAT REGULAR OFFICERS ARE CONSIDERED FOR TEMPORARY PROMOTION 1 OR MORE YEARS BEFORE THEY WILL BE CONSIDERED FOR PERMANENT PROMOTION BASED UPON COMPLETION OF PROMOTION LIST SERVICE (PLS) PRESCRIBED BY LAW. THE PRINCIPAL CRITERION FOR A RESERVE OFFICER IS TOTAL ACTIVE FEDERAL COMMISSIONED SERVICE (TAFCS) EXCEPT FOR RESERVE MEDICAL CORPS AND DENTAL CORPS OFFICERS, WHOSE ELIGIBILITY IS BASED ON SERVICE COMPUTED FROM A PROFESSIONAL EDUCATION DATE (PED). AS IT IS NOT POSSIBLE, DUE TO EXISTING OFFICER GRADE STRUCTURE AND AIR FORCE REQUIREMENTS, TO ESTABLISH SPECIFIC ELIGIBILITY CRITERIA TO BE ADHERED TO YEAR AFTER YEAR, HQ USAF, WHEN ANNOUNCING THE PROGRAM, SPECIFIES THE EXACT REQUIREMENTS FOR EACH PROGRAM. AN OFFICER WHO DOES NOT MEET THE ANNOUNCED BASIC ELIGIBILITY CRITERIA OR IS IN ONE OF THE FOLLOWING CATEGORIES IS INELIGIBLE FOR PROMOTION:

"E. ANY OFFICER ABOVE THE GRADE OF FIRST LIEUTENANT WITH AN ESTABLISHED DATE OF RELEASE FROM EAD, SEPARATION, OR RETIREMENT, WHICH IS WITHIN 2 YEARS OF THE CONVENING DATE OF THE SELECTION BOARD THAT WOULD NORMALLY CONSIDER HIM. IF HIS DATE OF SEPARATION IS ESTABLISHED AFTER THE SELECTION BOARD HAS CONVENED, HIS CONSIDERATION IS WITHOUT EFFECT. * *

IT SEEMS CLEAR THAT UNDER THE REGULATIONS NOTED ABOVE, THE PROMOTION OF COLONEL CARTWRIGHT ANNOUNCED ON NOVEMBER 20, 1967, WAS WITHOUT EFFECT IN VIEW OF THE RETIREMENT ORDER DATED SEPTEMBER 22, 1967. HOWEVER, THAT WOULD NOT PRECLUDE HIS ENTITLEMENT TO THE RETIRED GRADE OF LIEUTENANT COLONEL IF HE MET THE REQUIREMENTS OF 10 U.S.C. 1372(4) WHICH PROVIDES THAT UNLESS ENTITLED TO A HIGHER GRADE UNDER SOME OTHER PROVISION OF LAWANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER 10 U.S.C. 1201 IS ENTITLED TO THE GRADE EQUIVALENT TO THE TEMPORARY GRADE TO WHICH HE WOULD HAVE BEEN PROMOTED HAD IT NOT BEEN FOR THE PHYSICAL DISABILITY FOR WHICH HE IS RETIRED IF ELIGIBILITY FOR THAT PROMOTION WAS REQUIRED TO BE BASED ON CUMULATIVE YEARS OF SERVICE OR YEARS OF SERVICE IN GRADE AND THE DISABILITY WAS DISCOVERED AS A RESULT OF HIS PHYSICAL EXAMINATION FOR PROMOTION. SEE B-148438, APRIL 6, 1962, 41 COMP. GEN. 658, AND THE COURT CASES CITED IN THAT DECISION. THE DECISIONS CITED BY YOU INVOLVED OTHER PROVISIONS OF LAW AND DO NOT APPEAR TO BE CONTROLLING IN THE CASE.

THE INFORMATION BEFORE THIS OFFICE IS INSUFFICIENT TO DETERMINE WHETHER COLONEL CARTWRIGHT IS ENTITLED TO THE BENEFITS OF 10 U.S.C. 1372(4). HOWEVER, IF, UPON FURTHER CONSIDERATION, IT IS DETERMINED THAT HE IS ENTITLED TO THE RETIRED GRADE OF LIEUTENANT COLONEL, APPROPRIATE ADJUSTMENT SHOULD BE MADE IN HIS ACCOUNT FROM MAY 1, 1969, TO CURRENT DATE.