B-140410, AUG. 26, 1959

B-140410, AUG. 26, 1959

TO MR. LUCIDIO BATTAD:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1959, REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 7, 1958, WHICH DISALLOWED YOUR CLAIM FOR ACCUMULATED BACK PAY, RATIONS, QUARTERS, AND CLOTHING ALLOWANCES BELIEVED TO BE DUE ON MAY 31, 1948, THE DATE OF YOUR RETIREMENT, AND ADDITIONAL RETIRED PAY FROM THE DATE INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS.

THE RECORDS SHOW THAT YOU ENLISTED IN THE PHILIPPINE SCOUTS, REGULAR ARMY, ON JULY 12, 1914; THAT YOU CONTINUED TO SERVE IN THE PHILIPPINE SCOUTS UNDER SUCCESSIVE ENLISTMENTS UNTIL MARCH 5, 1945, WHEN YOU WERE DISCHARGED TO ENLIST THE FOLLOWING DAY IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND THAT ON JUNE 30, 1946, YOU WERE DISCHARGED FROM THAT ENLISTMENT. THE NEXT DAY YOU REENLISTED IN THE PHILIPPINE SCOUTS AND CONTINUED TO SERVE IN THAT STATUS UNTIL MAY 31, 1948, WHEN YOU WERE RETIRED UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, AS AMENDED, AND SECTION I, ARMY REGULATION 615-395. THUS, IT APPEARS THAT AT THE TIME OF RETIREMENT YOU WERE A MEMBER OF THE PHILIPPINE SCOUTS AND NOT A MEMBER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT.

SINCE YOU SERVED FROM MARCH 6, 1945, TO JUNE 30, 1946, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, IT APPEARS TO BE YOUR CONTENTION THAT SUCH SERVICE ENTITLES YOU TO ADDITIONAL RETIRED PAY AT A RATE COMPUTED ON THE BASIS OF THE RETIRED PAY OF A MEMBER OF SIMILAR GRADE AND LENGTH OF SERVICE WHO WAS RETIRED FROM THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. HOWEVER, AS STATED ABOVE, THE RECORDS IN YOUR CASE SHOW THAT YOU WERE DISCHARGED FROM THE ARMY OF THE UNITED STATES ON JUNE 30, 1946, AND THAT YOU REENLISTED IN THE PHILIPPINE SCOUTS, JULY 1, 1946. PLAINLY, YOUR RETIREMENT EFFECTIVE MAY 31, 1948, WAS FROM SERVICE IN THE PHILIPPINE SCOUTS.

THE ACT OF MARCH 2, 1907, 34 STAT. 1217, AS AMENDED, UNDER WHICH YOU WERE RETIRED, PROVIDED IN PERTINENT PART:

"THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED THIRTY YEARS EITHER IN THE ARMY, NAVY, OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, WITH SEVENTY-FIVE PERCENT OF THE PAY * * * HE MAY THEN BE IN RECEIPT OF * * *.'

PARAGRAPH 1 OF AR 615-395, CONTAINED PROVISIONS TO THE SAME EFFECT.

SERVICE AS A PHILLIPINE SCOUT IS SERVICE IN THE ARMY WITHIN THE MEANING OF THE ACT OF MARCH 2, 1907, AND ONE WHO "SHALL HAVE SERVED THIRTY YEARS" IS ENTITLED UPON APPLICATION TO BE PLACED ON THE RETIRED LIST WITH THE PAY THEREIN PRESCRIBED. SINCE YOU HAD "SERVED THIRTY YEARS * * * IN THE ARMY," YOU PROPERLY WERE RETIRED UNDER THE 30-YEAR RETIREMENT STATUTE AND UNDER THE PLAIN TERMS OF SUCH STATUTE BECAME ENTITLED TO "SEVENTY-FIVE PERCENT" OF THE PAY YOU WERE RECEIVING AT THE TIME OF RETIREMENT. WHILE IT MAY BE THAT YOU WERE ELIGIBLE FOR RETIREMENT DURING THE SHORT PERIOD OF YOUR SERVICE WITH THE ARMY OF THE UNITED STATES, YOU WERE NOT RETIRED AT THAT TIME NOR AT THE PAY YOU WERE THEN RECEIVING AS A MEMBER OF THE ARMY OF THE UNITED STATES. UPON YOUR RETIREMENT ON MAY 31, 1948, YOU BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF YOUR PAY AS A TECHNICAL SERGEANT, PHILIPPINE SCOUTS, WHICH WAS THE PAY YOU WERE RECEIVING AT THAT TIME. PRESUMABLY THE RETIRED PAY YOU ARE PRESENTLY RECEIVING HAS BEEN CORRECTLY COMPUTED ON SUCH BASIS, INCLUDING ANY INCREASES AUTHORIZED SINCE YOUR RETIREMENT.

WITH RESPECT TO THE REFERENCE IN YOUR LETTER TO RATIONS, QUARTERS AND CLOTHING ALLOWANCES, THE PROVISIONS OF THE ACT OF MARCH 2, 1907, WHICH PROVIDED FOR MONEY ALLOWANCES FOR ENLISTED MEN ON THE RETIRED LIST IN ADDITION TO RETIRED PAY, WERE REPEALED BY THE ACT OF JUNE 16, 1942, 56 STAT. 369. CONSEQUENTLY, YOUR RETIREMENT HAVING BEEN EFFECTED AFTER SUCH DATE, THERE IS NO BASIS FOR CONSIDERATION OF YOUR CLAIM FOR SUCH ALLOWANCES.

FOR THE REASONS GIVEN ABOVE, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.