B-132650, OCT. 14, 1957

B-132650, OCT. 14, 1957

TO MAJOR WALTER M. MOORE, U.S. AIR FORCE, RETIRED:

YOU HAVE REQUESTED IN YOUR LETTER OF JUNE 26, 1957, ACKNOWLEDGED JULY 19, 1957, REVIEW OF THE ACTION TAKEN DECEMBER 7, 1956, BY THE CLAIMS DIVISION OF THIS OFFICE IN DENYING THAT PART OF YOUR CLAIM FOR RETROACTIVE RETIRED PAY WHICH COVERS THE PERIOD JUNE 29, 1948, TO OCTOBER 31, 1949, INCLUSIVE. YOU WERE ALLOWED RETROACTIVE RETIRED PAY UNDER THE RULE OF THE TANNER DECISION, 129 C.CLS. 792, FOR THE BALANCE OF YOUR CLAIM BEGINNING NOVEMBER 1, 1949.

THERE WAS RECEIVED AS AN ENCLOSURE WITH YOUR LETTER OF JUNE 26, 1957, A COPY OF AIR FORCE RESERVE ORDERS NO. 3, ISSUED DECEMBER 12, 1949, BY THE DEPARTMENT OF THE AIR FORCE. YOU CALL OUR ATTENTION TO PARAGRAPH 5 OF THOSE ORDERS, WHICH READS AS FOLLOWS:

"5. MOORE, WALTER M AO156948 MAJ (W) YOB 1883 NON-RATED NOT-ON-FLY STATUS PERM RESIDENCE 34 N CENTRAL AVE OSBORN OHIO PSSN 2120 THE ABOVE NAMED OFF IS PLACED ON THE AFUS OFFS' RETD LIST IN THE GR OF MAJ ON 29 JUN 48 W/ENTITLEMENT TO RET PAY FR 29 JUN 48 UP SECS 301 AND 302 OF THE ACT OF CONGRESS APRD 29 JUN 48 (PUB LAW 810-80TH CONGRESS) HAVING BEEN FOUND ELIGIBLE UPON APPL FOR SUCH BENEFITS BY REASON OF AGE AND SATISFACTORY MIL SV AS DEFINED IN THE ABOVE MENTIONED ACT.'

HOWEVER, THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, IN A LETTER DATED OCTOBER 17, 1956, RELATIVE TO YOUR RETIRED PAY STATUS, REPORTED, IN PERTINENT PART, AS FOLLOWS:

"MAJOR WALTER M. MOORE, AO 156 948, WAS RETIRED EFFECTIVE 29 JUNE 1948 UNDER SECTION 302, TITLE III, PUBLIC LAW 810, 80THCONGRESS, AFTER COMPLETING 29 YEARS, 6 MONTHS, 25 DAYS' SERVICE FOR BASIC PAY PURPOSES AND 7.561 YEARS OF SERVICE FOR PERCENTAGE PURPOSES, AS EVIDENCED BY THE INCLOSED COPY OF DD FORM 13 AND CORRECTED COPY OF AFHQ FORM O-527 DATED 25 SEPTEMBER 1956. INFORMATION RECEIVED FROM THE DIRECTORATE OF MILITARY PERSONNEL, DCS/P, HEADQUARTERS USAF, INDICATES APPLICATION FOR RETIREMENT WAS FILED BY MAJOR MOORE ON 3 OCTOBER 1949 * * *.'

ALSO, YOU EXPRESSLY STATE IN YOUR LETTER OF JUNE 26, 1957, THAT YOUR "APPLICATION FOR RETIREMENT WAS FILED 4 OCT. 1949.'

IN DECISIONS DATED NOVEMBER 23, 1948, AND JANUARY 11, 1951, 28 COMP. GEN. 321, AND 30 COMP. GEN. 287, RESPECTIVELY, IT WAS HELD (WITH AN EXCEPTION NOT HERE MATERIAL) THAT RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087-1091, IS PAYABLE, IF OTHER CONDITIONS OF THE STATUTE ARE MET, FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION FOR SUCH RETIRED PAY IS FILED. THIS OFFICE CONTINUES TO FOLLOW THE ABOVE RULE AND THE ADMINISTRATIVE REGULATIONS AND PRACTICES OF THE MILITARY SERVICES HAVE GIVEN FULL FORCE AND EFFECT TO THAT RULE.

THE PROVISIONS OF PARAGRAPH 5, AIR FORCE RESERVE ORDERS NO. 3, DECEMBER 12, 1949, QUOTED ABOVE, UPON WHICH YOU RELY ARE PATENTLY INCONSISTENT WITH THE RULE THAT TITLE III RETIRED PAY BENEFITS BEGIN THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION THEREFOR IS FILED. INASMUCH AS THE RECORD BEFORE THIS OFFICE CLEARLY DISCLOSES THAT YOUR APPLICATION FOR THE RETIREMENT PAY BENEFITS PRESCRIBED IN TITLE III OF THE 1948 LAW WAS FILED BY YOU IN THE MONTH OF OCTOBER 1949, THE PAYMENT TO YOU OF RETROACTIVE RETIREMENT PAY (ON THE BASIS OF THE TANNER DECISION) FOR ANY PART OF THE PERIOD PRECEDING NOVEMBER 1, 1949, IS PRECLUDED.

ACCORDINGLY, THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN DENYING THAT PART OF YOUR CLAIM FOR RETROACTIVE RETIREMENT PAY COVERING THE PERIOD JUNE 29, 1948, TO OCTOBER 31, 1949, INCLUSIVE, IS SUSTAINED.