B-128332, SEP. 10, 1957

B-128332, SEP. 10, 1957

TO MR. CHARLES G. JONES, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1957, REQUESTING REVIEW OF SETTLEMENT DATED SEPTEMBER 17, 1956, WHICH ALLOWED YOU $5,061.81 ON YOUR CLAIM FOR RETROACTIVE RETIRED PAY FROM SEPTEMBER 3, 1944, TO FEBRUARY 28, 1951.

THE SETTLEMENT WAS BASED ON ACTION TAKEN BY AN ARMY DISABILITY REVIEW BOARD, APPROVED BY THE SECRETARY OF THE ARMY ON FEBRUARY 2, 1951, BY DIRECTION OF THE PRESIDENT, FINDING THAT YOUR INCAPACITY FOR ACTIVE DUTY AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY ON SEPTEMBER 2, 1944, WAS AN INCIDENT OF SERVICE. THERE WERE DEDUCTED FROM THE AMOUNT FOUND DUE THE SUMS OF $142.44 AND $300, REPRESENTING AMOUNTS EQUAL TO THE COMPENSATION PAID YOU BY THE VETERANS ADMINISTRATION IN EXCESS OF RETIRED PAY DUE FOR THE PERIOD JULY 1, 1945, TO JUNE 30, 1946, AND MUSTERING-OUT PAY, RESPECTIVELY. IT APPEARS TO BE YOUR VIEW THAT SUCH DEDUCTIONS SHOULD NOT HAVE BEEN MADE SINCE THE PAYMENTS OF SUCH SUMS TO YOU WERE PROPER WHEN MADE AND THAT YOU HAVE A VESTED RIGHT TO RETAIN THEM.

THE RETROACTIVE DETERMINATION AS TO YOUR PHYSICAL DISABILITY AT THE TIME OF RELEASE FROM ACTIVE DUTY ON SEPTEMBER 2, 1944, DID NOT CONFER A RIGHT TO ANY GREATER BENEFITS THAN WOULD HAVE ACCRUED IF YOUR RETIREMENT ACTUALLY HAD BEEN EFFECTED ON THAT DATE. SEE, IN THIS CONNECTION, KILBANKS V. UNITED STATES, C.CLS. NO. 50306, DECIDED JULY 12, 1957. WHILE YOU HAVE A RIGHT TO RETAIN ANY PAYMENTS, OTHERWISE LEGAL AND PROPER, THAT WERE MADE TO YOU DURING THE PERIOD INVOLVED, SINCE YOU ARE ENTITLED TO NO GREATER BENEFITS UNDER THE RETROACTIVE ADJUSTMENT THAN WOULD HAVE BEEN PAYABLE IF YOUR RETIREMENT HAD BEEN EFFECTED ON SEPTEMBER 2, 1944, YOUR RETIREMENT PAY MUST BE REDUCED BY THE AMOUNT OF ANY SUCH PRIOR PAYMENTS. IN OTHER WORDS, UNDER THE RETROACTIVE ADJUSTMENT YOU ARE PERMITTED TO RETAIN THE PRIOR PAYMENTS, BUT ARE ENTITLED ONLY TO THE DIFFERENCE BETWEEN SUCH PAYMENTS AND THE BENEFITS RETROACTIVELY ACCRUING BY VIRTUE OF THE APPROVED FINDINGS OF THE REVIEW BOARD. IF YOU HAD BEEN RETIRED WHEN RELEASED FROM ACTIVE DUTY YOU WOULD NOT HAVE BEEN PAID MUSTERING-OUT PAY SINCE THE MUSTERING OUT PAYMENT ACT OF 1944, 58 STAT. 8, AUTHORIZES SUCH PAYMENT ONLY TO EACH MEMBER OF THE ARMED FORCES "WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE" UNDER HONORABLE CONDITIONS ON AND AFTER DECEMBER 7, 1941. THE DEDUCTION OF $300 EQUALING THE AMOUNT PAID TO YOU AS MUSTERING-OUT PAY WAS PROPER. PRICE V. UNITED STATES, 121 C.CLS. 664.

AS TO COMPENSATION FROM THE VETERANS ADMINISTRATION, SECTION 15 OF THE ACT OF JULY 13, 1943, 57 STAT. 559, DOES NOT PERMIT PAYMENT OF BOTH RETIREMENT PAY AND COMPENSATION FROM THE VETERANS ADMINISTRATION DURING THE SAME PERIOD OF TIME. SINCE YOU WERE ENTITLED TO $165 AS RETIRED PAY FOR THE PERIOD JULY 1, 1945, TO JUNE 30, 1946, BUT WERE PAID $307.44 BY THE VETERANS ADMINISTRATION AS COMPENSATION FOR SUCH PERIOD, THE EXCESS OF $142.44 WAS PROPERLY DEDUCTED FROM THE AMOUNT OTHERWISE FOUND DUE.

CONCERNING YOUR STATEMENT THAT APPLICABLE PROVISIONS OF LAW PERMITTED YOU TO ACCEPT YOUR CIVILIAN "SALARY AND DISABILITY COMPENSATION BENEFITS IN LIEU OF RETIRED PAY," YOUR ATTENTION IS INVITED TO THE FACT THAT WHILE THE ACT OF MAY 27, 1944, 58 STAT. 230, PERMITS WAIVER BY A MEMBER OF THE REGULAR ARMY OF SO MUCH RETIRED PAY AS EQUALS THE COMPENSATION PAYABLE BY THE VETERANS ADMINISTRATION, NON REGULAR MEMBERS WERE NOT GIVEN THE BENEFITS OF THAT ACT UNTIL ENACTMENT OF PARAGRAPH (I), SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816. SEE 30 COMP. GEN. 255. THE RECORD SHOWS THAT YOU WERE RELEASED FROM ACTIVE DUTY WHILE SERVING AS A SECOND LIEUTENANT, ARMY OF THE UNITED STATES, AND THAT YOU WERE COMMISSIONED A SECOND LIEUTENANT, HONORARY-USAR, ON SEPTEMBER 2, 1947.

IT APPEARING THAT YOU WERE ALLOWED THE AMOUNT TO WHICH YOU WERE ENTITLED ON THE BASIS SET FORTH ABOVE, THE SETTLEMENT OF SEPTEMBER 17, 1956, IS SUSTAINED.