B-151602, JUNE 27, 1963, 42 COMP. GEN. 743

B-151602, JUNE 27, 1963, 42 COMP. GEN. 743

MILITARY PERSONNEL - RECORD CORRECTION - RETIRED PAY - DISABILITY. MILITARY PERSONNEL - RECORD CORRECTION - PAY RIGHTS. MILITARY PERSONNEL - RECORD CORRECTION - RETIRED PAY - SUBSEQUENT ENLISTED SERVICE EFFECT A MEMBER OF THE UNIFORMED SERVICES WHOSE RECORDS ARE CORRECTED TO SHOW THAT HIS RELEASE FROM ACTIVE DUTY AS AN ARMY OFFICER IN 1944 WAS FOR PHYSICAL DISABILITY ALTHOUGH HE HAD A SUBSEQUENT PERIOD OF ACTIVE SERVICE (1950-1955) AS AN ENLISTED MEMBER IN THE AIR FORCE IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF HIS ACTIVE DUTY PAY AND LENGTH OF SERVICE FOR THE PERIOD PRIOR TO OCTOBER 1, 1949--- EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- AND SINCE THE SAVED RETIRED PAY FOR THE PERIOD FROM OCTOBER 1, 1949, UNTIL THE DATE OF HIS ENLISTMENT IS GREATER THAN ANY RETIRED PAY THAT COULD BE PAID UNDER AN ELECTION PURSUANT TO SECTION 411 OF THE ACT SUCH AMOUNT IS PAYABLE, LESS DISABILITY COMPENSATION PAYMENTS RECEIVED FROM THE VETERANS ADMINISTRATION. A MEMBER OF THE UNIFORMED SERVICES WHOSE RECORDS ARE RETROACTIVELY CORRECTED TO SHOW THAT HIS RELEASE FROM ACTIVE DUTY AS AN OFFICER IN THE ARMY WAS FOR REASON OF PHYSICAL DISABILITY, EVEN THOUGH HE HAD A SUBSEQUENT PERIOD OF ENLISTED SERVICE IN THE AIR FORCE, IS REGARDED AS HAVING A VALID ENLISTMENT NOTWITHSTANDING THAT THERE IS NO STATUTORY AUTHORITY THAT CONTEMPLATES OR PERMITS THE ENLISTMENT OF A DISABILITY RETIRED OFFICER OF ONE OF THE SERVICES IN ANOTHER SERVICE, AND, THEREFORE, RETENTION OF THE ACTIVE DUTY PAY AND ALLOWANCES RECEIVED AS AN ENLISTED MAN IS PROPER. A MEMBER OF THE UNIFORMED SERVICES WHOSE RECORDS ARE CORRECTED TO SHOW THAT HIS RELEASE FROM ACTIVE DUTY AS AN ARMY OFFICER IN 1944 WAS FOR PHYSICAL DISABILITY, ALTHOUGH HE HAD A SUBSEQUENT PERIOD OF ACTIVE SERVICE (1950-1955) AS AN ENLISTED MEMBER IN THE AIR FORCE, IS NOT REQUIRED TO HAVE HIS ENLISTMENT REGARDED AS AFFECTING HIS RETIRED PAY STATUS, EVEN THOUGH HE IS NOT ENTITLED TO RETIRED PAY DURING THE ACTIVE ENLISTED SERVICE, AND UPON RELEASE FROM SUCH SERVICE, THE SAVINGS PROVISIONS IN SECTION 519 OF THE CAREER COMPENSATION ACT OF 1949, EFFECTIVE OCTOBER 1, 1949, ARE CONSTRUED AS SAVING ONLY THE RIGHTS WHICH HAD VESTED PRECEDING THE DATE OF ENACTMENT OF THE 1949 ACT SO THAT THE MEMBER'S ACTIVE ENLISTED SERVICE MAY NOT BE USED TO INCREASE THE GREATER SAVED RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO THE 1949 ACT.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, JUNE 27, 1963:

BY FIRST INDORSEMENT DATED, MAY 20, 1963, THE OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF MAY 3, 1963, REQUESTING AN ADVANCE DECISION CONCERNING THE PAYMENT PROPOSED ON A VOUCHER IN FAVOR OF FIRST LIEUTENANT JAMES M. COGGIN, 101 293 914, ARMY OF THE UNITED STATES, RETIRED, REPRESENTING DISABILITY RETIRED PAY FOR THE PERIOD FEBRUARY 25, 1944, THROUGH MARCH 31, 1963, LESS VETERANS ADMINISTRATION COMPENSATION AND RETIRED PAY RECEIVED DURING THE SAME PERIOD. THE REQUEST WAS FORWARDED UNDER D.O. NUMBER A-705 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT JAMES M. COGGIN WAS APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, AND ENTERED ON ACTIVE DUTY IN THAT GRADE, SEPTEMBER 18, 1942; THAT HE WAS PROMOTED TO FIRST LIEUTENANT JANUARY 1, 1943, WAS RELIEVED FROM ACTIVE DUTY ON FEBRUARY 24, 1944, AND WAS HONORABLY DISCHARGED MARCH 14, 1944, HAVING COMPLETED 16 YEARS, 5 MONTHS, AND 5 DAYS' SERVICE FOR BASIC PAY PURPOSES; THAT HE ENLISTED IN THE REGULAR AIR FORCE AS A MASTER SERGEANT ON JUNE 7, 1950, AND SERVED UNTIL JULY 31, 1955; THAT HE WAS RETIRED IN THAT GRADE AFTER 22 YEARS, 11 MONTHS, AND 11 DAYS' SERVICE FOR BASIC PAY PURPOSES AND 21 YEARS, 6 MONTHS, AND 29 DAYS' ACTIVE SERVICE; AND THAT HE HAS BEEN PAID RETIRED PAY BY THE AIR FORCE FROM AUGUST 1, 1955, TO DATE.

THE MEMBER'S RECORDS WERE REVIEWED BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS AND ON JANUARY 9, 1962, THE SECRETARY OF THE ARMY, UNDER THE PROVISIONS OF 10 U.S.C. 1552, DIRECTED THAT ALL THE DEPARTMENT OF THE ARMY RECORDS OF JAMES M. COGGIN BE CORRECTED TO SHOW THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON FEBRUARY 24, 1944, AND CERTIFIED TO THE VETERANS ADMINISTRATION AS ELIGIBLE FOR RETIRED PAY BENEFITS IN THE GRADE OF FIRST LIEUTENANT, EFFECTIVE FEBRUARY 25, 1944, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, 10 U.S.C. 456 (1940 ED.). A DISABILITY RATING OF 10 PERCENT WAS AUTHORIZED. AS A RESULT OF SUCH CORRECTION OF HIS RECORDS, LIEUTENANT COGGIN IS ENTITLED TO RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939. HOWEVER, SINCE DIVERSE OPINIONS HAVE BEEN RENDERED BY THE JUDGE ADVOCATE GENERAL, UNITED STATES AIR FORCE, AND THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, AS TO THE TYPE AND AMOUNT OF RETIRED PAY TO BE ALLOWED, YOU HAVE REQUESTED AN ADVANCE DECISION IN THE MATTER.

THE CORRECTION OF A MEMBER'S RECORDS TO SHOW A RIGHT TO RETROACTIVE RETIREMENT PAY SHOULD PLACE HIM AS NEARLY AS POSSIBLE IN THE SAME POSITION HE WOULD HAVE OCCUPIED HAD THE EVENTS ACTUALLY HAPPENED ON THE DATE OR DATES SHOWN IN HIS CORRECTED RECORD. 34 COMP. GEN. 646, 647. ON THAT BASIS LIEUTENANT COGGIN IS ENTITLED TO RETIREMENT PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF A FIRST LIEUTENANT WITH OVER 16 YEARS' SERVICE FOR BASIC PAY PURPOSES BASED ON THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, FOR THE PERIOD FEBRUARY 25, 1944, THROUGH SEPTEMBER 30, 1949, LESS THE AMOUNT OF DISABILITY COMPENSATION PAID HIM DURING THE SAME PERIOD.

WHILE THERE APPEARS TO BE NO STATUTORY PROVISION WHICH CONTEMPLATES OR PERMITS THE ENLISTMENT OF A DISABILITY RETIRED OFFICER OF ONE OF THE ARMED FORCES, IN ANOTHER ARMED FORCE, LIEUTENANT COGGIN'S ENLISTMENT IN THE AIR FORCE IN 1950 WAS VALID AT THAT TIME AND WE FIND NO BASIS FOR QUESTIONING HIS RIGHT TO RETAIN THE ACTIVE DUTY PAY AND ALLOWANCES RECEIVED BY HIM AS AN ENLISTED MAN. ALSO, SINCE HIS CORRECTED RECORD SHOWS THAT HE WAS RETIRED FOR DISABILITY IN 1944, AND IT APPEARS THAT SAVED RETIRED PAY WAS GREATER THAN ANY RETIRED PAY WHICH COULD HAVE BEEN PAID UNDER AN ELECTION AUTHORIZED BY SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, 37 U.S.C. 281 (1952 ED.), HE IS ENTITLED TO THE AMOUNT PAYABLE ON THAT BASIS, BASED ON HIS SERVICE AS A FIRST LIEUTENANT WITH OVER 16 YEARS OF SERVICE, FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 6, 1950, LESS DISABILITY BENEFITS RECEIVED FROM THE VETERANS ADMINISTRATION.

WHILE LIEUTENANT COGGIN IS NOT ENTITLED TO ANY RETIRED PAY DURING HIS ACTIVE SERVICE IN THE AIR FORCE, HIS ENLISTMENT IN THAT COMPONENT DID NOT AFFECT HIS DISABILITY RETIRED PAY STATUS AND UPON HIS RELEASE FROM ACTIVE DUTY ON JULY 31, 1955, HE MUST BE CONSIDERED AS HAVING CONTINUED TO BE ENTITLED TO RECEIVE RETIREMENT PAY COMPUTED ON THE BASIS OF THE GRADE OF LIEUTENANT, ARMY OF THE UNITED STATES. IT APPEARS THAT HE WOULD NOT BE ENTITLED TO AN INCREASE IN RETIRED PAY UNDER SECTION 516 OF THE 1949 ACT, 37 U.S.C. 316 (1952 ED.), IN THE CIRCUMSTANCES HERE INVOLVED, SINCE THE SAVED RETIRED PAY IS GREATER. THE AMOUNT OF RETIREMENT PAY TO WHICH LIEUTENANT COGGIN IS ENTITLED UNDER THE SAVINGS PROVISION CONTAINED IN SECTION 519 OF THE 1949 ACT, 37 U.S.C. 318 (1952 ED.), IS BASED ON HIS YEARS OF SERVICE AT THE TIME OF HIS RETIREMENT ON FEBRUARY 24, 1944, OR 16 YEARS, 5 MONTHS, AND 5 DAYS, SINCE THAT PROVISION OF LAW SAVED ONLY THE RIGHTS WHICH HAD ALREADY VESTED PRECEDING THE DATE OF ENACTMENT OF THE 1949 ACT AND HIS SUBSEQUENT YEARS OF ACTIVE SERVICE AS MASTER SERGEANT MAY NOT BE USED TO INCREASE SUCH SAVED PAY. THUS, FOR THE PERIOD ON AND AFTER AUGUST 1, 1955, HIS RETIREMENT PAY COMPUTED UNDER THE LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE 1949 ACT SHOULD BE AT THE FOLLOWING RATES: $237.72 PER MONTH FROM AUGUST 1, 1955, THROUGH MAY 31, 1958, AND $251.98 FROM JUNE 1, 1958, THROUGH MARCH 31, 1963.

ACCORDINGLY, THE AMOUNT PROPOSED FOR PAYMENT MUST BE RECOMPUTED, USING THE SAVED PAY RATES SHOWN ABOVE FOR THE PERIOD AUGUST 1, 1955, THROUGH MARCH 31, 1963. UPON ADJUSTMENT OF THE AMOUNTS DUE FOR THAT PERIOD, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.