B-130671, MAR. 26, 1957

B-130671, MAR. 26, 1957

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1957, REQUESTING A DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN THE ENCLOSURES, CARBON COPIES OF OFFICIAL CORRESPONDENCE RECEIVED BY MAJOR REGINO G. PADUA CAN BE ACCEPTED TO SUPPORT HIS CLAIM FOR RETIREMENT AND RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948.

SECTION 302 (A), TITLE III OF THE ACT OF JUNE 29, 1948 (PUBLIC LAW 810), 62 STAT. 1087, PROVIDES IN PERTINENT PART:

"THAT NO PERSON WHO WAS A MEMBER OF A RESERVE COMPONENT ON OR BEFORE AUGUST 15, 1945, SHALL BE ELIGIBLE FOR RETIREMENT BENEFITS UNDER THIS TITLE UNLESS HE PERFORMED ACTIVE FEDERAL SERVICE DURING ANY PORTION OF EITHER OF THE TWO PERIODS BEGINNING APRIL 6, 1917, AND ENDING NOVEMBER 11, 1918, AND BEGINNING SEPTEMBER 9, 1940, AND ENDING DECEMBER 31, 1946.'

SUCH PROVISION HAS NOW BEEN REENACTED BY PUBLIC LAW NO. 1028, APPROVED AUGUST 10, 1956, AS SECTION 1331 (C), TITLE 10 OF THE UNITED STATES CODE, READING AS FOLLOWS:

"/C) NO PERSON WHO, BEFORE AUGUST 16, 1945, WAS A RESERVE OF AN ARMED FORCE, OR A MEMBER OF THE ARMY WITHOUT COMPONENT OR OTHER CATEGORY COVERED BY SECTION 1332 (A) (1) OF THIS TITLE EXCEPT A REGULAR COMPONENT, IS ELIGIBLE FOR RETIRED PAY UNDER THIS CHAPTER, UNLESS HE PERFORMED ACTIVE DUTY AFTER APRIL 5, 1917, AND BEFORE NOVEMBER 12, 1918, OR AFTER SEPTEMBER 8, 1940, AND BEFORE JANUARY 1, 1947.'

WHILE THE CODE PROVISION REQUIRES THE PERFORMANCE OF "ACTIVE DUTY" DURING THE SPECIFIED PERIODS, RATHER THAN THE PERFORMANCE OF "ACTIVE FEDERAL SERVICE" DURING SUCH PERIODS AS PROVIDED IN THE 1948 ACT, THE CHANGE IN THE LANGUAGE MADE NO CHANGE IN THE SERVICE REQUIREMENT. IN THAT CONNECTION, SECTION 49 (A) OF THE 1956 ACT STATES THAT IT WAS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED BY THE PRECEDING SECTIONS OF THAT ACT.

IT IS POINTED OUT IN THE DISCUSSION, WHICH ACCOMPANIED YOUR LETTER, THAT MAJOR PADUA APPLIED FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 302 (A), TITLE III OF THE ACT OF JUNE 29, 1948, AND THAT A REVIEW OF HIS RECORDS INDICATES THAT HE MEETS THE REQUIREMENTS OF THAT ACT, EXCEPT THAT PART OF THE PROVISO IN SECTION 302 (A), QUOTED ABOVE. IT IS STATED THAT IN THE ABSENCE OF ORIGINAL CORRESPONDENCE, CARBON COPIES OF OFFICIAL CORRESPONDENCE FURNISHED BY MAJOR PADUA PURPORT TO INDICATE THAT SUCH SERVICE WAS PERFORMED. IN REQUESTING A DECISION AS TO WHETHER THE DOCUMENTS MAY BE REGARDED AS ACCEPTABLE EVIDENCE TO SUBSTANTIATE THE APPLICATION FOR RETIREMENT AND RETIREMENT PAY AS CORROBORATED BY AN AFFIDAVIT FROM THE OFFICER, IT IS STATED THAT THE SUFFICIENCY OF THIS EVIDENCE IS DIMINISHED BY THE LACK OF CONFIRMING ADMINISTRATIVE PROOF. IS CONCLUDED IN THE DISCUSSION THAT THE RECORDS OF OUR OFFICE REFLECT PAYMENT FOR DUTY PERFORMED DURING THE PERIOD FROM NOVEMBER 20, 1918, TO DECEMBER 19, 1918, BUT NO RECORD WAS FOUND SHOWING PERFORMANCE OF ACTIVE DUTY, PAID FROM FEDERAL FUNDS, BY SUBJECT OFFICER AS A MEMBER OF THE PHILIPPINE NATIONAL GUARD DURING THE PERIODS FROM JULY 23, 1917, TO AUGUST 4, 1917; JULY 5, 1918, TO NOVEMBER 18, 1918; AND DECEMBER 20, 1918, TO FEBRUARY 20, 1919.

THE SUBMITTED EVIDENCE CONSISTS OF COPIES OF CORRESPONDENCE, CONSISTING OF (1) FIRST INDORSEMENT DATED FEBRUARY 12, 1919, SIGNED BY A. M. GRIFFIN, MAJOR, M.C., U.S. ARMY, DIVISION SURGEON, STATING THAT DR. PADUA JOINED THE PHILIPPINE NATIONAL GUARD ON JUNE 23, 1917, AS A CAPTAIN, M.C. AND WAS ON ACTIVE DUTY IN THE OFFICERS' TRAINING SCHOOL (MED. DEPT.) JULY 5, 1918, RECEIVING THE RANK OF CAPTAIN, AND THAT HE WAS IN THE FEDERAL SERVICE DURING THE PERIOD THE NATIONAL GUARD, PHILIPPINE ISLANDS, WAS FEDERALIZED; (2) LETTER OF COMMENDATION DATED JUNE 20, 1919, ADDRESSED TO CAPTAIN PADUA, MD., P.N.G., AND SIGNED BY H. B. PARROTT, CAPTAIN, PHILIPPINE SCOUTS, COMMENDING THE OFFICER FOR THE HIGH GRADE OF SERVICE RENDERED AS REGIMENTAL SURGEON DURING THE TRAINING PERIOD OF THE PHILIPPINE NATIONAL GUARD; AND (3) FIRST INDORSEMENT DATED JULY 24, 1919, HEADQUARTERS PHILIPPINE NATIONAL GUARD, MANILA, ADDRESSED TO CAPTAIN PADUA, STATING THAT THE RECORDS OF THAT OFFICE SHOW THE OFFICER'S MILITARY SERVICE IN PART AS FOLLOWS:

"APPOINTED CAPTAIN, MEDICAL DEPARTMENT, JUNE 23, 1917;

ATTENDED 1917 OFFICERS' SCHOOL FOR MEDICAL OFFICERS, JULY 23, 1917, TO AUGUST 4, 1917, INCLUSIVE:

RELIEVED FROM ACTIVE SERVICE WITH GUARD, AUGUST 4, 1917;

ATTENDED OFFICERS' TRAINING SCHOOL, JULY 5, 1918, TO SEPTEMBER 30, 1918, INCLUSIVE;

QUALIFIED FOR FEDERAL SERVICE AND APPOINTED CAPTAIN, MEDICAL CORPS, OCTOBER 1, 1918;

ASSIGNED AS CAPTAIN, REGIMENTAL SURGEON, 1ST INFANTRY, OCTOBER 1, 1918;

MUSTERED INTO THE FEDERAL SERVICE OF THE UNITED STATES WITH THE 1ST DIVISION, PHILIPPINE GUARD, AS CAPTAIN REGIMENTAL SURGEON, 1ST INFANTRY, NOVEMBER 20, 1918.'

IN VIEW OF THE SUBMITTED CORRESPONDENCE, OUR RECORDS MANAGEMENT AND SERVICES BRANCH WAS REQUESTED TO MAKE AN ADDITIONAL SEARCH OF THE RECORDS OF THE DISBURSING OFFICER'S ACCOUNTS PAYING THE MANILA AREA DURING THE PERIOD HERE INVOLVED. THE SEARCH FAILED TO SHOW ANY PERFORMANCE OF ACTIVE DUTY, PAID FROM FEDERAL FUNDS, BY THE OFFICER AS A MEMBER OF THE PHILIPPINE NATIONAL GUARD DURING THE PERIODS JULY 23, 1917, TO AUGUST 4, 1917, AND JULY 5, 1918, TO SEPTEMBER 30, 1918. IN THAT CONNECTION, PAY VOUCHER NO. 592, DECEMBER 1918 ACCOUNTS OF C. W. CONKLIN SHOWS THAT THE OFFICER WAS PAID AS CAPTAIN, M.C., P.N.G. FOR THE PERIOD NOVEMBER 20 TO 30, 1918, AND CONTAINS THE NOTATION ON THE VOUCHER "FEDERALIZED MILITIA, COMMISSION AS CAPTAIN, ACCEPTED NOVEMBER 20, 1918.'

THE COPIES OF THE CORRESPONDENCE FURNISHED BY THE OFFICER DO NOT SHOW THAT HE PERFORMED ACTIVE FEDERAL SERVICE PRIOR TO NOVEMBER 20, 1918, THE FIRST INDORSEMENT OF JULY 24, 1919, STATING THAT HE WAS MUSTERED INTO THE FEDERAL SERVICE ON SUCH DATE. THAT DATE IS IN AGREEMENT WITH THE INFORMATION DISCLOSED ON THE VOUCHER COVERING THE OFFICER'S NATIONAL GUARD PAY FOR THE PERIOD NOVEMBER 20 TO 30, 1918, IN THE "FEDERALIZED MILITIA.'

SINCE NO OFFICIAL RECORD CAN BE FOUND IN THE DEPARTMENT OF THE ARMY TO SHOW THAT THE OFFICER ACTUALLY PERFORMED ACTIVE FEDERAL DUTY DURING THE PERIODS ALLEGED IN THE CORRESPONDENCE, AND INASMUCH AS THE OFFICIAL PAY RECORDS ON FILE IN OUR OFFICE FAIL TO SHOW THAT THE OFFICER WAS PAID FOR ACTIVE FEDERAL DUTY PERFORMED PRIOR TO NOVEMBER 20, 1918, THE SUBMITTED EVIDENCE MAY NOT BE ACCEPTED AS ESTABLISHING THAT THE OFFICER PERFORMED ACTIVE FEDERAL SERVICE BETWEEN THE PERIOD APRIL 6, 1917, AND NOVEMBER 11, 1918, OR SEPTEMBER 9, 1940, AND DECEMBER 31, 1946, SO AS TO BE ELIGIBLE TO RECEIVE RETIREMENT PAY UNDER THE PROVISIONS OF SECTION 302 (A), TITLE III OF THE ACT OF JUNE 29, 1948. SEE, GENERALLY, DECISION OF APRIL 13, 1956, B-126671.

ACCORDINGLY, THERE IS NO PROPER BASIS FOR AUTHORIZING RETIREMENT PAY IN THE CASE OF MAJOR PADUA.