B-126123, MAY 14, 1958

B-126123, MAY 14, 1958

TO MAJOR IRVING E. PUGH, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1958, CONCERNING THE ACTION TAKEN IN OUR DECISION TO YOU DATED MARCH 27, 1956, B-126123, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL DISABILITY RETIRED PAY.

AS WE INDICATED IN OUR LETTER OF MARCH 27, 1956, THE RECORDS SHOW THAT YOU WERE RELIEVED FROM ACTIVE DUTY EFFECTIVE APRIL 14, 1946, BY REASON OF PHYSICAL DISABILITY AND THAT YOU WERE CERTIFIED FOR RETIREMENT PAY EFFECTIVE APRIL 15, 1946, PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 3, 1939, AS A MAJOR WITH OVER 24 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, INCLUDING 8 YEARS' ACTIVE SERVICE AND SERVICE PRIOR TO NOVEMBER 12, 1918. ALSO, THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT YOU WERE 40 PERCENT DISABLED AT THE TIME YOU WERE RETIRED OR GRANTED RETIREMENT PAY. WE CONCLUDED IN THE ABOVE LETTER THAT, SINCE YOU WERE RETIRED PRIOR TO OCTOBER 1, 1949, YOU MAY NOT, FOR THE REASONS SET FORTH IN OUR DECISION OF AUGUST 13, 1951, B 102149, 31 COMP. GEN. 28, RECEIVE THE BENEFIT OF THE HIGHER RATES OF PAY AUTHORIZED IN THE CAREER COMPENSATION ACT OF 1949 AND ALSO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF SUCH HIGHER RATES BY VIRTUE OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR PHYSICAL DISABILITY WERE GIVEN THE OPTION OF RECEIVING (1) THE RETIRED PAY PROVIDED BY THE LAW IN EFFECT ON OCTOBER 11, 1949, (2) DISABILITY RETIRED PAY COMPUTED ON THE RATES OF PAY PROVIDED IN THE CAREER COMPENSATION ACT BASED ON THE PERCENTAGE OF PHYSICAL DISABILITY INCURRED, OR (3) RETIRED PAY OR DISABILITY RETIRED PAY COMPUTED ON THE RATES OF PAY PROVIDED IN THE CAREER COMPENSATION ACT BASED ON TWO AND ONE-HALFPERCENT OF BASIC PAY MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE.

UNDER THOSE FORMULAS YOU COULD HAVE ELECTED TO RECEIVE RETIRED PAY AT THE RATE OF 40 PERCENT OF THE BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT BASED ON PERCENTAGE OF DISABILITY OR AT THE RATE OF 20 PERCENT BASED ON YOUR 8 YEARS OF ACTIVE SERVICE, RATHER THAN 75 PERCENT OF THE BASE AND LONGEVITY PAY PROVIDED BY LAW (PAY READJUSTMENT ACT OF 1942) IN EFFECT ON OCTOBER 11, 1949. YOU CONTEND, HOWEVER, THAT YOU ARE ENTITLED TO RETIRED PAY AT 75 PERCENT OF THE PAY RATES PROVIDED IN THE CAREER COMPENSATION ACT OF 1949 BECAUSE YOU HAVE BEEN RATED TOTALLY AND PERMANENTLY DISABLED BY THE VETERANS ADMINISTRATION AND BECAUSE YOU SERVED IN THE ARMED SERVICES PRIOR TO NOVEMBER 12, 1918. ALSO YOU QUESTION THE CREDIT OF ONLY 8 YEARS OF ACTIVE SERVICE, STATING THAT THE CAREER COMPENSATION ACT PERMITS INCLUDING ALL SERVICE (ACTIVE, INACTIVE, AND RETIRED) AND YOU CONTEND THAT YOU ARE ENTITLED TO CREDIT FOR 28 YEARS SERVICE BY VIRTUE OF SERVICE ON THE RETIRED LIST (FROM THE DATE OF YOUR RETIREMENT ON APRIL 15, 1946, TO SEPTEMBER 30, 1949), AND TO ADDITIONAL CREDIT FOR SERVICE ON THE RETIRED LIST ON AND AFTER OCTOBER 1, 1949. HENCE YOU INDICATE THAT THE LETTER OF APRIL 25, 1950, FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, ADVISING YOU OF YOUR RIGHT TO MAKE THE ABOVE INDICATED ELECTIONS WAS ERRONEOUS AND THAT YOU NOW SHOULD BE PERMITTED TO MAKE A PROPER ELECTION. YOU ALSO STATE THAT YOU MADE A TIMELY ELECTION UNDER THE CAREER COMPENSATION ACT. IN SUPPORT OF YOUR CONTENTIONS YOU CITE BAILEY V. UNITED STATES, 134 C.CLS. 471, SELIGA V. UNITED STATES, 137 C.CLS. 710, TRAVIS V. UNITED STATES, 137 C.CLS. 148, AND O-ROUARK V. UNITED STATES, C.CLS.NO. 154-54, DECIDED NOVEMBER 6, 1957.

WITH RESPECT TO THE PERCENTAGE OF DISABILITY, SECTIONS 402 AND 411 OF THE CAREER COMPENSATION ACT PROVIDE THAT THE PERCENTAGE OF DISABILITY SHALL BE DETERMINED IN ACCORDANCE WITH THE STANDARD SCHEDULE OF RATING DISABILITIES IN CURRENT USE BY THE VETERANS ADMINISTRATION. THE DETERMINATION OF THE PERCENTAGE OF DISABILITY IN ANY CASE, HOWEVER, IS TO BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR BY HIS DESIGNATED REPRESENTATIVE AND NOT BE THE VETERANS ADMINISTRATION. GOLDING V. UNITED STATES, 131 C.CLS. 677; WALES V. UNITED STATES, 132 C.CLS. 765; MACKEY V. UNITED STATES, 135 C.CLS. 411. COMPARE SCHMEIKEL V. UNITED STATES, 134 C.CLS. 809; HOLLIDAY V. UNITED STATES, 128 C.CLS. 647; UHLEY V. UNITED STATES, 137 C.CLS. 275. HENCE WE TRUST THAT YOU WILL UNDERSTAND THAT ANY DETERMINATION OF THE PERCENTAGE OF YOUR DISABILITY MADE BY THE VETERANS ADMINISTRATION UNDER LAWS IT ADMINISTERS DOES NOT BIND THE DEPARTMENT OF THE ARMY WITH RESPECT TO THE PERCENTAGE OF DISABILITY APPLICABLE UNDER THE CAREER COMPENSATION ACT. THE DEPARTMENT OF THE ARMY IS CHARGED BY LAW WITH THE DUTY OF MAKING ITS OWN DETERMINATION WITH RESPECT TO THE PERCENTAGE OF DISABILITY AND ITS DETERMINATION IN THAT RESPECT FIXES YOUR RIGHTS UNDER THE CAREER COMPENSATION ACT. ACCORDINGLY, SINCE THE DEPARTMENT OF THE ARMY DETERMINED THAT THE PERCENTAGE OF YOUR DISABILITY WAS 40 PERCENT, YOU ARE NOT ENTITLED TO RETIRED PAY IN EXCESS OF 40 PERCENT OF THE BASIC PAY PROVIDED BY THE CAREER COMPENSATION ACT UNDER THE PERCENTAGE-OF-DISABILITY FORMULA PROVIDED IN THAT ACT.

UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT, LENGTH OF SERVICE MAY AFFECT THE COMPUTATION OF RETIRED PAY IN TWO WAYS:(1) THE RATE OF BASIC PAY IS DETERMINED BY THE NUMBER OF YEARS OF CREDITABLE SERVICE (INCLUDING INACTIVE SERVICE) AND, (2) IF THE METHOD OF COMPUTING RETIRED PAY IS BASED ON THE NUMBER OF YEARS OF ACTIVE SERVICE RATHER THAN ON THE PERCENTAGE-OF-DISABILITY, BASIC PAY IS MULTIPLIED BY TWO AND ONE-HALF PERCENT TIMES THE NUMBER OF YEARS OF CREDITABLE ACTIVE SERVICE. THERE IS NO PROVISION IN THE CAREER COMPENSATION ACT WHICH AUTHORIZES YOU TO COUNT MORE THAN EIGHT YEARS ACTIVE SERVICE IN THE MULTIPLIER UNDER THE YEARS OF ACTIVE SERVICE FORMULA. SEE BAILEY V. UNITED STATES, 471 AT 475, 476.

WITH RESPECT TO THE SERVICE CREDITABLE IN DETERMINING THE RATE OF BASIC PAY, YOU HAVE BEEN CREDITED WITH ALL OF YOUR SERVICE--- BOTH ACTIVE AND INACTIVE--- PRIOR TO THE DATE OF YOUR RETIREMENT ON APRIL 15, 1946, WHICH ON THE DATE OF YOUR RETIREMENT AMOUNTED TO OVER 25 YEARS SERVICE. WE KNOW OF NO AUTHORITY OF LAW FOR CREDITING YOU WITH SERVICE SUBSEQUENT TO YOUR RETIREMENT ON APRIL 15, 1946. IN THE BAILEY, TRAVIS, SELIGA AND O-ROUARK CASES CITED BY YOU IN SUPPORT OF YOUR CLAIM, WHEN LAST RELEASED FROM ACTIVE DUTY PRIOR TO THE CAREER COMPENSATION ACT THOSE RETIRED OFFICERS WERE ALLOWED CREDIT FOR LONGEVITY PAY PURPOSES FOR THE PERIOD WHILE ON THE RETIRED LIST BETWEEN TWO PERIODS OF ACTIVE DUTY. SUCH CREDIT WAS BASED ON THE COURT'S VIEW THAT THE SECOND RELEASE FROM ACTIVE DUTY CONSTITUTED A "RETIREMENT" WITHIN THE MEANING OF THE PROVISION OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT WHICH ALLOWED AN OFFICER, IN COMPUTING HIS RETIRED PAY, TO USE AS A FACTOR AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE GRADE HELD AT THE TIME OF (THE SECOND) "RETIREMENT.' IN NONE OF THOSE CASES, HOWEVER, WERE THE OFFICERS ALLOWED CREDIT FOR TIME ON THE RETIRED LIST SUBSEQUENT TO THE LAST RELEASE FROM ACTIVE DUTY (SECOND ,RETIREMENT"). HENCE, THOSE CASES PROVIDE NO BASIS FOR ALLOWING CREDIT FOR THE TIME SUBSEQUENT TO YOUR RETIREMENT ON APRIL 15, 1946.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES THAT THE RETIRED PAY OF ANY OFFICER WHO SERVED AS A MEMBER OF THE ARMED SERVICES PRIOR TO NOVEMBER 12, 1918, THEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHALL BE 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT. PRIOR TO THE CAREER COMPENSATION ACT OF 1949 THAT PROVISION DID NOT APPLY TO RESERVE OFFICERS. BERRY V. UNITED STATES, 123 C.CLS. 530; REYNOLDS V. UNITED STATES, 125 C.CLS. 108. FOR THE REASONS STATED IN OUR LETTER OF MARCH 27, 1956, TO YOU AND IN 31 COMP. GEN. 28, IT IS OUR VIEW THAT YOU ARE NOT ENTITLED TO THE BENEFITS OF THAT PROVISION OF LAW UNDER THE CAREER COMPENSATION ACT. THERE HAS NOT BEEN BROUGHT TO OUR ATTENTION ANY BASIS FOR CONCLUDING THAT YOU ARE ENTITLED TO ITS BENEFITS.

CONCERNING YOUR REMARKS INDICATING THAT THE ADJUTANT GENERAL ERRONEOUSLY PLACED YOU IN THE FOURTH PAY PERIOD RATHER THAN THE FIFTH PAY PERIOD AT THE TIME OF YOUR RETIREMENT, THE RECORD CONTAINS A LETTER DATED MARCH 18, 1946, FROM THE ADJUTANT GENERAL OF THE ARMY TO THE ADMINISTRATOR OF VETERANS AFFAIRS, CERTIFYING THAT YOU WERE ENTITLED TO RETIREMENT PAY AS A CAPTAIN, FOURTH PAY PERIOD EFFECTIVE APRIL 15, 1946, IN THE AMOUNT OF $262.50 A MONTH. THAT LETTER WAS AMENDED BY LETTER DATED JUNE 17, 1947, CERTIFYING THAT YOU WERE ENTITLED TO RETIREMENT PAY AS A MAJOR, FIFTH PAY PERIOD, EFFECTIVE APRIL 15, 1946, IN THE AMOUNT OF $306.25 A MONTH, AND FROM JULY 1, 1946, IN THE AMOUNT OF $336.88 A MONTH. THE SUM OF $336.88 A MONTH REPRESENTED 75 PERCENT OF THE PAY AUTHORIZED FOR A MAJOR WITH OVER 24 YEARS' SERVICE BUT NOT OVER 27 YEARS' SERVICE AT THE TIME OF YOUR RETIREMENT, OR $449.17.

FOR THE REASONS STATED, THERE IS NO ADDITIONAL AMOUNT DUE YOU FOR DISABILITY RETIREMENT PAY AND THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM IS SUSTAINED.