B-28153, FEB. 7, 1956

B-28153, FEB. 7, 1956

TO COLONEL JOSEPH T. CLEMENT, U.S. ARMY, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1955, IN EFFECT REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF MARCH 22, 1954, B 28153, WHEREIN IT WAS HELD THAT YOU WERE NOT ENTITLED, ON AND AFTER OCTOBER 1, 1949, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT 60 PERCENTUM OF THE ACTIVE-DUTY PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE AS PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AND RETIRED PAY COMPUTED AT 75 PERCENTUM OF SUCH ACTIVE-DUTY PAY.

YOU NOW CONTEND THAT SINCE YOU WERE RETIRED PRIOR TO JULY 1, 1922, FOR PHYSICAL DISABILITY DUE TO WOUNDS RECEIVED IN BATTLE, YOU ARE ENTITLED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, TO HAVE YOUR RETIRED PAY COMPUTED AT 2 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE MULTIPLIED BY 30.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, PROVIDES, IN PERTINENT PART, THAT:

"PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE: PROVIDED, THAT THE DETERMINATION OF THE PERCENTAGE OR DISABILITY AS PRESCRIBED IN SECTIONS 402 (A) (3), 402 (B) (3), OR 402 (C) (3), AS APPLICABLE, SHALL BE BASED UPON THE DISABILITY OF SUCH MEMBER, FORMER MEMBER, OR PERSON, AS OF THE TIME HE WAS LAST RETIRED OR AS OF THE TIME HE WAS GRANTED RETIREMENT PAY, AS THE CASE MAY BE, AND THE PERCENTAGE OF SUCH DISABILITY WILL BE DETERMINED IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS' ADMINISTRATION; OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.'

SECTION 511 OF THE ABOVE ACT, 63 STAT. 829, PROVIDES, IN PERTINENT PART, THAT:

"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY, (2) MEMBERS HERETOFORE TRANSFERRED TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE, AND (3) MEMBERS OF THE ARMY NURSE CORPS OR THE NAVY NURSE CORPS HERETOFORE RETIRED UNDER THE ACT OF MAY 13, 1926 (44 STAT. 513), SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED, THAT FOR THE PURPOSE OF THE COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED * * *.'

IT APPEARS THAT ON OCTOBER 1, 1949, YOU HAD COMPLETED ACTIVE SERVICE OF 16 YEARS, 3 MONTHS, 20 DAYS, AND TOTAL SERVICE, INCLUDING INACTIVE TIME ON THE RETIRED LIST, OF MORE THAN 30 YEARS. IT FURTHER APPEARS THAT IT WAS DETERMINED THAT YOU WERE 60 PERCENTUM DISABLED, AND THAT YOU ELECTED TO RECEIVE DISABILITY RETIRED PAY UNDER OPTION (A) OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, THAT IS, ON THE PERCENTAGE OF YOUR DISABILITY; AND THAT YOU HAVE BEEN PAID ON THAT BASIS.

YOU CONTEND, IN EFFECT, THAT YOU NOW SHOULD BE PERMITTED TO REVOKE YOUR ORIGINAL ELECTION, MAKE A NEW ELECTION UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT, AND UNDER THAT METHOD BE CREDITED WITH INACTIVE TIME ON THE RETIRED LIST DESPITE THE FACT THAT SECTION 511 PRESCRIBES THAT ONLY "ACTIVE SERVICE" MAY BE SO INCLUDED.

WITHOUT AGAIN DISCUSSING THE ABSENCE OF MERIT TO YOUR CLAIM, IT APPEARS APPOSITE TO STATE THAT THE PERIOD FOR MAKING AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949--- THE ONLY APPROACH WHEREBY YOU COULD BECOME ENTITLED TO RETIRED PAY BASED ON ACTIVE-DUTY PAY RATES PRESCRIBED IN THAT ACT--- EXPIRED OCTOBER 1, 1954. 34 COMP. GEN. 642. HENCE, YOU MAY NOT NOW MAKE AN ORIGINAL ELECTION UNDER THAT SECTION AND, A FORTIORI, YOU CANNOT REVOKE AN ELECTION HERETOFORE ..END :