B-150261, DECEMBER 18, 1962, 42 COMP. GEN. 314

B-150261, DECEMBER 18, 1962, 42 COMP. GEN. 314

PAY - RETIRED - DISABILITY - DISABILITY RETIREMENT PRIOR TO PROMOTION RECOMMENDATION AN ARMY RESERVE OFFICER WHOSE NAME APPEARED ON A LIST OF MAJORS ELIGIBLE TO BE CONSIDERED FOR TEMPORARY PROMOTION TO LIEUTENANT COLONEL UNDER SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947 BUT WHOSE PHYSICAL DISABILITY RETIREMENT WAS ORDERED ONE DAY AFTER THE SELECTION BOARD MET IS NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF THE HIGHER GRADE ON THE BASIS THAT HE WAS AN "OFFICER ON A RECOMMENDED LIST FOR PROMOTION" WITHIN THE MEANING OF SECTION 507 (A) (7) OF THE ACT AS INTERPRETED IN KRATZ V. UNITED STATES, CT.CL. NO. 347 59, AND WILLIS V. UNITED STATES, CT.CL. NO. 255-60, THE SELECTION BOARD HAVING TAKEN NO ACTION TO PLACE THE OFFICER'S NAME ON A RECOMMENDED LIST FOR PROMOTION PRIOR TO HIS DISABILITY RETIREMENT AS REQUIRED BY SECTION 507 (A) (7), AND THE SUBSEQUENT ORDERS PURPORTING TO ANNOUNCE THE TEMPORARY PROMOTION HAVING NO EFFECT TO INCREASE THE OFFICER'S RETIRED PAY, WHETHER OR NOT THE ORDERS ARE REVOKED.

TO MAJOR CARMEN E. DAIUTOLO, DECEMBER 18, 1962:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1962, REQUESTING REVIEW OF SETTLEMENT OF OCTOBER 25, 1962, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY (COMPUTED ON THE ACTIVE DUTY PAY OF THE GRADE OF LIEUTENANT COLONEL INSTEAD OF THAT OF MAJOR) ON THE BASIS OF THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 795, 893, 10 U.S.C. 559A (7) (1952 ED.), AS INTERPRETED BY THE COURT OF CLAIMS IN DECISIONS OF MARCH 7, 1962, IN THE CASES OF GOLDEN P. KRATZ V. UNITED STATES, CT.CL. NO. 347-59, AND ROBERT E. WILLIS V. UNITED STATES, CT.CL. NO. 255-60.

SECTION 507 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 10 U.S.C. 559A (1952 ED.), READS PERTINENTLY AS FOLLOWS:

(1) UNLESS EXPRESSLY PROVIDED OTHERWISE BY SOME PROVISION OF LAW, GENERAL OFFICERS OF THE REGULAR ARMY AND PROMOTION-LIST OFFICERS OF THE REGULAR ARMY SHALL BE PERMANENTLY PROMOTED TO AND APPOINTED IN THE GRADES OF MAJOR GENERAL, BRIGADIER GENERAL, COLONEL, LIEUTENANT COLONEL, MAJOR, AND CAPTAIN IN THE REGULAR ARMY ONLY WHEN RECOMMENDED FOR PROMOTION TO THOSE GRADES BY A SELECTION BOARD AS PROVIDED IN THIS TITLE.

(7) OFFICERS ON A RECOMMENDED LIST FOR PROMOTION TO ANY GRADE UNDER THE PROVISIONS OF THIS TITLE, WHO, AT ANY TIME PRIOR TO PROMOTION, ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL, WHEN RETIRED, BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED, WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF THE GRADE TO WHICH RECOMMENDED, UNLESS ENTITLED TO HIGHER RETIRED RANK OR PAY UNDER OTHER PROVISIONS OF LAW.

THE PLAINTIFF IN THE KRATZ CASE SERVED ON ACTIVE DUTY AS AN ARMY RESERVE OFFICER. IT APPEARS THAT HE WAS RECOMMENDED BY AN ARMY SELECTION BOARD FOR TEMPORARY PROMOTION IN THE ARMY OF THE UNITED STATES FROM LIEUTENANT COLONEL TO COLONEL UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 10 U.S.C. 506D (1952 ED.); THAT HIS NAME WAS INCLUDED IN THOSE PUBLISHED IN GENERAL ORDERS NO. 82, DEPARTMENT OF THE ARMY, AUGUST 28, 1952, ENTITLED ,RECOMMENDED LISTS FOR PROMOTION TO TEMPORARY GRADE OF COLONEL IN THE ARMY OF THE UNITED STATES; " BUT THAT HIS PROMOTION ORDERS WERE NEVER ISSUED. ON JULY 28, 1952, HE BECAME A PATIENT IN AN ARMY HOSPITAL; ON OCTOBER 1, 1952, HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD AT THE HOSPITAL WHERE HE WAS STILL A PATIENT; ON OCTOBER 21, 1952, HE WAS FOUND TO BE PERMANENTLY UNFIT FOR DUTY AS A RESULT OF PHYSICAL DISABILITY INCIDENT TO SERVICE; AND ON OCTOBER 31, 1952, HE WAS RETIRED BECAUSE OF SUCH DISABILITY, IN THE GRADE OF LIEUTENANT COLONEL, PURSUANT TO THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816, 37 U.S.C. 271 (1952 ED.).

THE COURT HELD THAT THE PLAINTIFF WAS AN "OFFICER ON A RECOMMENDED LIST FOR PROMOTION" WITHIN THE MEANING OF THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947 AND TITLE V OF THAT ACT, 10 U.S.C. 481 (1952 ED.); THAT HIS RETIRED PAY SHOULD HAVE BEEN COMPUTED ON THE BASIS OF THE ACTIVE DUTY PAY OF THE GRADE OF COLONEL FOR THE PERIOD BEGINNING AUGUST 1, 1953; AND THAT HE WAS ENTITLED TO RECOVER THE DIFFERENCE BETWEEN THE AMOUNT DUE ON SUCH BASIS AND THE AMOUNT WHICH HE HAD RECEIVED. ON THE BASIS OF SUBSTANTIALLY IDENTICAL FACTS, THE COURT ALSO DECIDED IN THE PLAINTIFF'S FAVOR IN THE WILLIS CASE.

IT APPEARS FROM THE FACTS OF RECORD IN YOUR CASE, THAT DEPARTMENT OF THE ARMY CIRCULAR NO. 31, MAY 1, 1953, PROVIDED THAT SELECTION BOARDS WOULD BE CONVENED AT THE DEPARTMENT OF THE ARMY IN MAY 1953 TO CONSIDER OFFICERS FOR TEMPORARY PROMOTION TO THE GRADE OF LIEUTENANT COLONEL. YOUR NAME APPEARED IN GENERAL ORDERS NO. 40, DEPARTMENT OF THE ARMY, MAY 4, 1953, ENTITLED "LISTS OF MAJORS ELIGIBLE FOR CONSIDERATION FOR TEMPORARY PROMOTION TO LIEUTENANT COLONEL.' SPECIAL ORDERS NO. 162, DEPARTMENT OF THE ARMY, AUGUST 18, 1953, OFFICIALLY ANNOUNCED YOUR TEMPORARY PROMOTION AND COMMISSION AS A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947. IN MEANTIME, BY SPECIAL ORDERS NO. 112, DEPARTMENT OF THE ARMY, JUNE 10, 1953, YOU WERE RETIRED FOR PHYSICAL DISABILITY EFFECTIVE JUNE 30, 1953, IN THE GRADE OF MAJOR, AS PROVIDED BY TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. THOSE ORDERS RECITED THAT YOU WERE PRESENTLY AT HOME ADDRESS "AWAITING FURTHER ORDERS AND DISPOSITION BY S/A HAVING BEEN DETERMINED TO BE PERM UNFIT FOR DY BY REASON OF PHYS DISABILITY OF 60 PERCENT INCURRED WHILE ENTITLED TO REC BASIC PAY.' BY MEMORANDUM DATED SEPTEMBER 4, 1953, YOUR PROMOTION TO THE GRADE OF LIEUTENANT COLONEL WAS REVOKED BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT YOU HAD BEEN RELIEVED FROM ACTIVE DUTY PRIOR TO THE EFFECTIVE DATE OF THE ORDER. WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE SELECTION BOARD WHICH CONSIDERED YOUR CASE CONVENED ON JUNE 9, 1953, AND ADJOURNED ON JULY 7, 1953, AND THAT IT WAS NOT AT THAT TIME THE PRACTICE TO PUBLISH LISTS OF THOSE OFFICERS RECOMMENDED FOR PROMOTION UNDER SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947.

IT IS OUR VIEW THAT THE PROVISIONS OF SECTION 507 (A) (7) OF THE 1947 ACT MAY BE CONSIDERED FOR APPLICATION ONLY IN THOSE CASES WHERE THE OFFICER CONCERNED HAS BEEN FOUND PHYSICALLY DISABLED AFTER HE HAS BEEN RECOMMENDED FOR PROMOTION BY THE APPROPRIATE SELECTION BOARD AND HIS NAME PLACED ON A "RECOMMENDED LIST FOR PROMOTION.' THE LISTS OF NAMES APPEARING IN GENERAL ORDERS NO. 40 WERE MERELY LISTS OF THE NAMES OF THOSE MAJORS ELIGIBLE FOR CONSIDERATION FOR TEMPORARY PROMOTION TO LIEUTENANT COLONEL. THE OFFICERS WHOSE NAMES WERE THERE LISTED HAD NOT, ON MAY 4, 1953, BEEN RECOMMENDED FOR PROMOTION BY A SELECTION BOARD AND THEY COULD NOT, THEREFORE, BE CONSIDERED AT THAT TIME AS OFFICERS ON A "RECOMMENDED LIST FOR PROMOTION.' SINCE THE ORDERS OF JUNE 10, 1953, EFFECTING YOUR RETIREMENT, WERE ISSUED ONLY ONE DAY AFTER THE FIRST MEETING OF THE SELECTION BOARD WHICH CONSIDERED THE CASES OF ALL THE OFFICERS LISTED IN GENERAL ORDERS NO. 40, IT APPEARS OBVIOUS THAT THE DISABILITY FOR WHICH YOU WERE RETIRED WAS DISCOVERED BEFORE YOU WERE RECOMMENDED FOR PROMOTION BY THE SELECTION BOARD. IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM.

CONCERNING THE ORDERS OF AUGUST 18, 1953, PURPORTING TO ANNOUNCE YOUR TEMPORARY PROMOTION TO THE GRADE OF LIEUTENANT COLONEL AS OF THAT DATE, IT WOULD APPEAR THAT EVEN IF SUCH ORDERS HAD NOT BEEN REVOKED THEY WOULD HAVE NO BEARING ON YOUR CLAIM. SEE IN THIS CONNECTION THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WILLIAM M. CARTER V. UNITED STATES, 152 CT.CL. 334. IN THAT CASE THE COURT HELD THAT IF A PROMOTION IS "EFFECTED WHILE ON THE RETIRED LIST, A STATUTORY PROVISION AUTHORIZING INCREASED (RETIRED) PAY MUST BE SHOWN," AND CONCLUDED THAT "IN THE ABSENCE OF ANY LEGISLATION AUTHORIZING INCREASED PAY, THE ADVANCE IN RANK, ACCOMPLISHED AS IT WAS AFTER THE TERMINATION OF HIS ACTIVE SERVICE, COULD HAVE HAD NO EFFECT ON PLAINTIFF'S RETIRED PAY.'