B-122846, JUN. 1, 1955

B-122846, JUN. 1, 1955

TO LIEUTENANT COLONEL EUGENE PALETZ, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1955, FINCS-B 201 DIMMICK, EDGAR L., 01689007, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON VOUCHER FOR $194.24, IN FAVOR OF EDGAR L. DIMMICK. THE PROPOSED PAYMENT REPRESENTS THE DIFFERENCE, FOR THE PERIOD NOVEMBER 1 TO DECEMBER 31, 1954, BETWEEN THE MONTHLY RETIRED PAY AUTHORIZED FOR A MAJOR WITH OVER THREE YEARS' SERVICE BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF JUNE 29, 1946, 60 STAT. 343 (INCREASED BY 4 PERCENT UNDER SECTION 2 (B) OF THE ACT OF MAY 19, 1952, 66 STAT. 80), AND THE MONTHLY RETIRED PAY AUTHORIZED FOR A MAJOR WITH 10 YEARS' SERVICE BY THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF MAY 19, 1952, 66 STAT. 79.

PRIVATE LAW 797, 82D CONGRESS, ID SESSION, APPROVED JULY 9, 1952, 66 STAT. A134, PROVIDES:

"THAT EDGAR L. DIMMICK, MAJOR, ARMY OF THE UNITED STATES, ARMY SERIAL NUMBER 01689007, IS HEREBY GRANTED ALL OF THE RIGHTS,BENEFITS, AND PRIVILEGES WHICH ARE NOW OR HEREAFTER GRANTED TO OFFICERS OF THE ARMY OF THE UNITED STATES OF THE SAME RANK AND WITH THE SAME LENGTH OF SERVICE, WHO ARE PERMANENTLY RETIRED BY REASON OF TOTAL PHYSICAL DISABILITY.

"SEC. 2. WHILE RECEIVING THE RIGHTS, BENEFITS, AND PRIVILEGES GRANTED UNDER THIS ACT, THE SAID EDGAR L. DIMMICK SHALL CEASE RECEIVING THE COMPENSATION GRANTED TO HIM UNDER LAWS ADMINISTERED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS.'

SUCH PROVISIONS CONFER UPON MAJOR DIMMICK THE RIGHTS, BENEFITS, AND PRIVILEGES ACCORDED OFFICERS OF THE ARMY OF THE UNITED STATES OF THE RANK OF MAJOR, AND WITH THE SAME LENGTH OF SERVICE, WHO ARE PERMANENTLY RETIRED FOR TOTAL DISABILITY. THEY DO NOT, HOWEVER, PURPORT TO EFFECT HIS RETIREMENT OR TO GRANT HIM ANY RIGHTS WITH RESPECT TO ANY PERIOD PRIOR TO JULY 9, 1952. AND IT SEEMS CLEAR THAT THE TERM "THE SAME LENGTH OF SERVICE," AS USED IN THE LAW, HAS REFERENCE TO THAT SERVICE WHICH AN OFFICER IS AUTHORIZED TO COUNT FOR THE PURPOSE OF COMPUTING ACTIVE-DUTY PAY.

IT APPEARS FROM SENATE REPORT NO. 1777, 82D CONGRESS, 2D SESSION, TO ACCOMPANY H.R. 3707, WHICH BECAME PRIVATE LAW 797, THAT, ON MAY 18, 1942, MAJOR DIMMICK WAS APPOINTED A CAPTAIN IN THE MEDICAL CORPS, ARMY OF THE UNITED STATES, AND THAT HE WAS ORDERED TO ACTIVE DUTY ON JUNE 19, 1942. FOLLOWING THE FINDING BY AN ARMY RETIRING BOARD IN FEBRUARY 1946 THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE DUTY BECAUSE OF A HEART CONDITION AND AN INJURY SUSTAINED IN THE PERFORMANCE OF HIS MILITARY DUTY, HE ENTERED ON TERMINAL LEAVE, WAS PROMOTED TO THE GRADE OF MAJOR, AND REVERTED TO AN INACTIVE STATUS EFFECTIVE MAY 14, 1946. WHILE MAJOR DIMMICK SINCE HAS PERFORMED NO ACTIVE DUTY, HIS APPOINTMENT AS MAJOR IN THE ARMY OF THE UNITED STATES APPEARS TO HAVE BEEN REGARDED BY THE DEPARTMENT OF THE ARMY AND THE CONGRESS AS STILL BEING IN FORCE ON JULY 9, 1952.

UNDER THE PROVISIONS OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, MAJOR DIMMICK, ON JULY 9, 1952, COULD HAVE COUNTED FOR PURPOSES OF DETERMINING BASIC PAY FOR ACTIVE DUTY THE FULL PERIOD FROM MAY 18, 1942, TO JULY 9, 1952. ON JULY 9, 1952, AN OFFICER OF THE ARMY OF THE UNITED STATES OF THE SAME RANK AND WITH THE SAME SERVICE SERVING ON ACTIVE DUTY WOULD HAVE BEEN RECEIVING THE BASIC PAY OF A MAJOR WITH 10 YEARS OF SERVICE, OF $429.78. BY VIRTUE OF THE PROVISIONS OF SUBSECTIONS 402 (A) AND (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 AND 818, SUCH OFFICER, IF PERMANENTLY RETIRED JULY 9, 1952, FOR TOTAL (100 PERCENT) PHYSICAL DISABILITY, WHICH WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, WOULD HAVE BEEN RECEIVING DURING THE PERIOD NOVEMBER 1 TO DECEMBER 31, 1954, DISABILITY RETIREMENT PAY OF 75 PERCENT OF THAT BASIC PAY, OR $322.34. UNDER THE PROVISIONS OF PRIVATE LAW 797, MAJOR DIMMICK IS ENTITLED TO THE SAME DISABILITY RETIREMENT PAY FOR THAT PERIOD.

ON THE ASSUMPTION THAT MAJOR DIMMICK HAS BEEN PAID DISABILITY RETIREMENT PAY FOR THE PERIOD CONCERNED AT A RATE NOT IN EXCESS OF $225.22, PER MONTH, PAYMENT ON THE VOUCHER, WHICH WE ARE RETURNING TO YOU, IS AUTHORIZED.