B-152523, NOV. 1, 1963

B-152523, NOV. 1, 1963

TO LIEUTENANT COLONEL ERNEST A. HIGGINS, U.S. ARMY, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1963, AND PREVIOUS CORRESPONDENCE BETWEEN YOU AND THE CLAIMS DIVISION OF OUR OFFICE, RELATIVE TO THE SERVICE CREDITABLE IN THE COMPUTATION OF YOUR RETIRED PAY. IT IS YOUR DESIRE THAT THE ACTIVE SERVICE PERFORMED BY YOU FROM APRIL 1, 1941, TO DECEMBER 31, 1944, NOT BE COUNTED IN COMPUTING YOUR MILITARY RETIRED PAY IN ORDER THAT YOU MAY CLAIM BENEFITS FROM THE SOCIAL SECURITY ADMINISTRATION BASED ON THAT SERVICE.

THE RECORD SHOWS THAT ON OCTOBER 31, 1933, YOU WERE RETIRED FOR PHYSICAL DISABILITY AS A CAPTAIN IN THE REGULAR ARMY. AT THAT TIME YOU WERE CREDITED WITH OVER 25 BUT LESS THAN 26 YEARS OF ACTIVE SERVICE. YOU WERE RECALLED TO ACTIVE DUTY FROM THE RETIRED LIST AND SERVED 3 YEARS AND 9 MONTHS, WHICH, WHEN ADDED TO YOUR CREDITABLE SERVICE AT TIME OF RETIREMENT, MADE A TOTAL OF 29 YEARS AND 13 DAYS OF ACTIVE SERVICE CREDITABLE FOR RETIRED PAY PURPOSES. YOU WERE PAID THE RETIRED PAY OF A CAPTAIN WITH 29 YEARS OF SERVICE UPON YOUR RELEASE FROM ACTIVE DUTY IN 1944. THE RECORD FURTHER SHOWS THAT UNDER AUTHORITY OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, CH. 718, 62 STAT. 1085, YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COLONEL, THE HIGHEST TEMPORARY GRADE IN WHICH YOU SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE ARMY, AND YOUR RETIRED PAY THEREAFTER WAS COMPUTED ON THE PAY OF THAT GRADE RATHER THAN THE GRADE OF CAPTAIN IN WHICH YOU WERE ORIGINALLY RETIRED.

CONCERNING YOUR INQUIRY AS TO WHY YOU WERE NOT PAID THE RETIRED PAY OF A CAPTAIN WITH OVER 30 YEARS' SERVICE WHEN YOU WERE RELEASED TO INACTIVE DUTY IN 1944, YOU ARE ADVISED THAT SUCH ACTION WAS NOT TAKEN SINCE THE "RE -RETIREMENT" CONCEPT WHICH PERMITS THE COUNTING OF BOTH ACTIVE AND INACTIVE DUTY FOR LONGEVITY PURPOSES IN THE COMPUTATION OF RETIRED PAY IN CERTAIN CIRCUMSTANCES WAS NOT DEVELOPED BY THE COURT OF CLAIMS UNTIL A LATER TIME, AND IT WAS NOT CERTAIN THAT SUCH CONCEPT COVERED SITUATIONS SIMILAR TO THAT HERE INVOLVED UNTIL THE GORDON CASE (134 CT.CL. 840) WAS DECIDED IN 1956. IT APPEARS THAT UNDER THE RULINGS OF THE COURT YOUR RELEASE FROM ACTIVE DUTY IN 1944 MAY BE REGARDED AS A "RE-RETIREMENT," AND ADDITIONAL RETIRED PAY COULD HAVE BEEN PAID TO YOU FOR THE PERIOD JANUARY 1, 1945, TO SEPTEMBER 30, 1949, IF YOU HAD FILED A TIMELY CLAIM THEREFOR WITH THIS OFFICE.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * * *.'

SINCE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 13, 1963, THE 1940 ACT PRECLUDES FAVORABLE CONSIDERATION OF YOUR CLAIM FOR THE ADJUSTMENT IN RETIRED PAY WHICH OTHERWISE APPEARS DUE FOR THE PERIOD PRIOR TO OCTOBER 1, 1949.

THE COUNTING OF YOUR INACTIVE TIME FOR LONGEVITY PURPOSES COULD NOT AFFECT YOUR RIGHT TO RETIRED PAY UNDER ANY CIRCUMSTANCES AFTER OCTOBER 1, 1949, SINCE THE RATES OF PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, ARE THE SAME FOR A LIEUTENANT COLONEL WITH OVER 26 AND OVER 30 YEARS OF SERVICE. THE RETIRED PAY TO WHICH YOU WERE ENTITLED ON SEPTEMBER 30, 1949, WAS $412.50 PER MONTH (75 PERCENT OF $550, THE PAY OF A LIEUTENANT COLONEL WITH OVER 30 YEARS' SERVICE). COMMENCING OCTOBER 1, 1949, YOU ELECTED TO RECEIVE GREATER RETIRED PAY, $423.58 PER MONTH, COMPUTED ON THE 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE FORMULA PRESCRIBED IN SECTION 511 (B) OF THE 1949 ACT (29 TIMES 2 1/2 PERCENT, OR 72 1/2 PERCENT OF $584.25, THE PAY OF A LIEUTENANT COLONEL WITH OVER 26 YEARS OF SERVICE). YOU HAVE RECEIVED THE PERCENTAGE INCREASES IN RETIRED PAY PROVIDED IN SUBSEQUENT PAY RAISE LEGISLATION.

IT APPEARS THAT YOU MISUNDERSTOOD THE FOURTH PARAGRAPH OF THE LETTER OF JULY 29, 1963, FROM THE CLAIMS DIVISION OF OUR OFFICE, SINCE YOU INDICATE YOU WOULD BE WILLING TO ACCEPT A LESSER RATE OF RETIRED PAY IF BY SO DOING YOU COULD CLAIM SOCIAL SECURITY BENEFITS FOR THE ACTIVE SERVICE PERFORMED BY YOU DURING WORLD WAR II. THE STATEMENTS IN THAT PARAGRAPH TO WHICH YOU REFER WERE NOT INTENDED AS AN OFFER TO ALLOW YOU TO RECOMPUTE YOUR RETIRED PAY BUT WERE INTENDED ONLY AS AN EXPLANATION OF THE FACT THAT YOU HAVE RECEIVED THE FULL AMOUNT OF RETIRED PAY TO WHICH YOU WERE ENTITLED SINCE OCTOBER 1, 1949. AS STATED ABOVE, THE PROVISIONS OF LAW GOVERNING COMPUTATION OF YOUR RETIRED PAY IN ACCORDANCE WITH THE ELECTION EXECUTED BY YOU EFFECTIVE OCTOBER 1, 1949, PRESCRIBE 2 1/2 PERCENT OF THE APPLICABLE MONTHLY BASIC PAY RATE MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE. THERE IS NO AUTHORITY FOR USING A PART OF YOUR ACTIVE SERVICE AND DISREGARDING THE REMAINDER. PAY AND ALLOWANCES OF MILITARY PERSONNEL BOTH ON ACTIVE DUTY AND IN AN INACTIVE STATUS ON A RETIRED LIST ARE FIXED BY CONGRESS AND ARE NOT SUBJECT TO CHANGE AT THE DESIRE OF THE MEMBER.

ACCORDINGLY, THERE IS NO AUTHORITY OF LAW FOR COMPUTING YOUR RETIRED PAY WITHOUT REGARD TO YOUR ACTIVE SERVICE FROM 1941 TO 1944.