[Protest of Forest Service Contract Award]

B-116504, JUNE 9, 1954, 33 COMP. GEN. 588

PAY - RETIRED - CORRECTION OF RECORDS UNDER LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED AN ENLISTED MAN OF THE REGULAR ARMY WHO RETIRED ON SEPTEMBER 2, 1916, BUT WHOSE RECORD WAS CORRECTED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, TO SHOW JUNE 2, 1916 AS THE DATE OF HIS RETIREMENT, IS ENTITLED TO THE ADVANCED GRADE AND PAY BENEFITS OF THE ACT OF MARCH 3, 1927 APPLICABLE TO CERTAIN CLASSES OF ENLISTED MEN RETIRED PRIOR TO JUNE 3, 1916.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, JUNE 9, 1954:

BY FIRST ENDORSEMENT OF AUGUST 3, 1953, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JULY 15, 1953, SUBMITTING FOR ADVANCE DECISION A VOUCHER COVERING PAYMENT OF ADDITIONAL RETIRED PAY TO THE WIDOW OF JAMES W. GROSE, FORMER SERGEANT, U.S. ARMY, FOR THE PERIOD MARCH 3, 1927, TO THE DATE OF HIS DEATH, SEPTEMBER 29, 1947.

IT APPEARS THAT MR. GROSE ENLISTED IN THE ARMY ON JULY 11, 1898, AND THAT AFTER OVER 30 YEARS OF SERVICE FOR RETIREMENT PURPOSES--- COUNTING DOUBLE TIME FOR FOREIGN SERVICE--- HE WAS RETIRED ON SEPTEMBER 2, 1916, AT AUGUR BARRACKS, JOLO, PHILIPPINE ISLANDS, IN THE GRADE OF SERGEANT, FIRST CLASS, MEDICAL DEPARTMENT, PURSUANT TO WAR DEPARTMENT SPECIAL ORDERS OF JULY 12, 1916. THE RECORD SHOWS THAT HE WAS APPOINTED TO THE LATTER GRADE ON MARCH 8, 1916; THAT ON MAY 12, 1916, WHILE SERVING AT SAID AUGUR BARRACKS, HE MADE APPLICATION FOR RETIREMENT UNDER THE ACT OF MARCH 2, 1907, 34 STAT. 1217; AND THAT SUCH APPLICATION WAS RECEIVED IN THE OFFICE OF THE ADJUTANT GENERAL, WASHINGTON, D.C., ON JUNE 28, 1916.

THE MEDICAL DEPARTMENT, U.S. ARMY, AS ESTABLISHED BY SECTION 10 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 171, INCLUDED TWO HIGHER ENLISTED GRADES THAN SERGEANT, FIRST CLASS, AND IT WAS PROVIDED IN SUCH SECTION THAT ENLISTED MEN OF THE HOSPITAL CORPS--- IN WHICH MR. GROSE THEN WAS SERVING--- WERE TRANSFERRED IN CORRESPONDING GRADES TO THE NEW MEDICAL DEPARTMENT. THE ACT OF MARCH 3, 1927, 44 STAT. 1356, PROVIDED THAT CERTAIN NON-COMMISSIONED OFFICERS ON THE RETIRED LIST OF THE REGULAR ARMY BE PLACED IN THE FIRST GRADE, INCLUDING "SERGEANTS, FIRST CLASS, HOSPITAL CORPS, RETIRED PRIOR TO JUNE 3, 1916.'

UNDER DATE OF APRIL 24, 1952, THE SECRETARY OF THE ARMY, ACTING UNDER THE RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DIRECTED THAT MR. GROSE BE "HELD AND CONSIDERED" AS HAVING BEEN RETIRED ON JUNE 2, 1916, IN THE GRADE THEN HELD BY HIM, AND THAT THE DEPARTMENT OF THE ARMY PAY ALL MONEYS FOUND DUE AS A RESULT OF SUCH CORRECTION OF RECORD FOR THE PERIOD FROM MARCH 3, 1927, TO SEPTEMBER 29, 1947.

THE FOREGOING ACTION WAS TAKEN UNDER AUTHORITY CONTAINED IN SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 65 STAT. 655, WHICH PERMITS ADMINISTRATIVE CORRECTION OF MILITARY OR NAVAL RECORDS BY THE SEVERAL SECRETARIES, ACTING THROUGH THE BOARDS REFERRED TO REIN,"WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' THE SAID SECTION PROVIDES THAT "CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD.' IT ALSO PROVIDES FOR PAYMENT OF THE AMOUNT FOUND DUE ON THE BASIS OF THE CORRECTED RECORD TO THE PERSON WHOSE RECORD IS INVOLVED OR, IN CASE HE IS DECEASED AND NO DEMAND IS PRESENTED BY THE LEGAL REPRESENTATIVE OF HIS ESTATE, TO HIS WIDOW, LEGAL HEIRS OR BENEFICIARIES IN THE ORDER OF PRECEDENCE PRESCRIBED BY THE APPLICABLE PROVISIONS OF LAW RELATING TO THE KIND OF PAYMENT INVOLVED AND, WHEN NOT OTHERWISE SO PROVIDED, IN THE ORDER OF PRECEDENCE SET FORTH IN THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30. THE SAID 1946 ACT, APPLICABLE TO DISTRIBUTION OF THE ADDITIONAL RETIRED PAY HERE INVOLVED, GIVES THE WIDOW PRECEDENCE OVER OTHER HEIRS IN THE ABSENCE OF A CLAIM FROM A DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE.

THE EFFECT OF THE CORRECTION OF MR. GORSE'S MILITARY RECORD IN THIS CASE WAS TO BRING HIM WITHIN THE ABOVE-CITED ACT OF MARCH 3, 1927, THE SAME AS THOUGH HE HAD BEEN RETIRED ON JUNE 2, 1916. ACCORDINGLY, PAYMENT MAY BE MADE TO MR. GROSE'S WIDOW OF THE AMOUNT DUE ON THE BASIS OF HIS MILITARY RECORD AS SO CORRECTED.

THE COMPUTATION OF THE AMOUNT DUE ON THE SUBMITTED VOUCHER APPEARS TO BE INCORRECT. THE AMOUNT OF ADDITIONAL RETIRED PAY THERE SHOWN TO HAVE ACCRUED FOR THE PERIOD MARCH 3, 1927, TO SEPTEMBER 29, 1947, DOES NOT INCLUDE THE INCREASE IN RETIRED PAY FOR THE PERIOD OCTOBER 1, 1940, THROUGH MAY 31, 1942, AS AUTHORIZED UNDER THE ACT OF SEPTEMBER 16, 1940, 54 STAT. 895. SEE 20 COMP. GEN. 213. THE FOLLOWING TABULATION SHOWS THE RATES PAYABLE FOR THE PERIOD INVOLVED AND THE RATES OF THE PAYMENTS HERETOFORE MADE TO MR. GROSE FOR SUCH PERIOD:

CHART RATES AT WHICH PAYMENTS WERE MADE (COMPUTED ON PAY OF THIRD GRADE AND OVER 16 YEARS' SERVICE)

PERIOD MONTHLY RATE MAR. 3, 1927, TO MAR. 31, 1933 ---------------------- -- $80.55 APR. 1, 1933, TO MAR. 31, 1934 ------------------------ 68.47 APR. 1, 1934, TO JUNE 30, 1934 ------------------------ 72.49 JULY 1, 1934, TO MAR. 31, 1935 ------------------------ 76.52 APR. 1, 1935, TO SEPT. 30, 1940 ----------------------- 80.55 OCT. 1, 1940, TO MAY 31, 1942 ----- ------------------- 83.25 JUNE 1, 1942, TO JUNE 30, 1946 ----------- - ----------- 90.00 JULY 1, 1946, TO SEPT. 30, 1947 ------------------- -- - 107.81 RATES PAYABLE ON BASIS OF CORRECTED RECORD (COMPUTED ON PAY OF FIRST GRADE AND OVER 16 YEARS' SERVICE)

PERIOD MONTHLY RATE MAR. 3, 1927, TO MAR. 31, 1933 ---------------------- --$129.15 APR. 1, 1933, TO JAN. 31, 1934 ------------------------ 109.78 FEB. 1, 1934, TO JUNE 30, 1934 ------------------------ 116.24 JULY 1, 1934, TO MAR. 31, 1935 ------------------------ 122.69 APR. 1, 1935, TO SEPT. 30, 1940 ----------------------- 129.15 OCT. 1, 1940, TO MAY 31, 1942 ----- ------------------- 133.88 JUNE 1, 1942, TO JUNE 30, 1946 ----- ------- ----------- 129.38 JULY 1, 1946, TO SEPT. 29, 1947 --------------- ---- --- 185.63

WITH THE EXCEPTION OF THE PERIOD FROM DECEMBER 1, 1941, THROUGH JULY 31, 1945, PAYMENTS AT THE RATES AND FOR THE PERIODS INDICATED IN THE FIRST PART OF THE ABOVE TABULATION ARE REFLECTED BY VOUCHERS WHICH HAVE BEEN EXAMINED IN THIS CASE. WHILE THE VOUCHER HAS NOT BEEN LOCATED ON WHICH SETTLEMENT WAS MADE FOR ARREARS OF RETIRED PAY FOR THE PERIOD DECEMBER 1, 1941, THROUGH JULY 31, 1945--- PAYMENTS HAVING BEEN DISCONTINUED AT THE OUTBREAK OF WORLD WAR II SINCE MR. GROSE LIVED IN THE PHILIPPINE ISLANDS-- - IT WILL BE ASSUMED THAT SETTLEMENT WAS MADE AT THE RATE OF $83.25 FOR THE MONTHS OF DECEMBER 1941 THROUGH MAY 1942 AND AT THE RATE OF $90 PER MONTH FOR THE MONTHS OF JUNE 1942 THROUGH JULY 1945.

PAYMENT MAY BE MADE ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IF IT BE AMENDED IN ACCORDANCE WITH THE FOREGOING.

IT IS SUGGESTED IN THE CORRECTION BOARD'S RECOMMENDATIONS AND IN FIRST ENDORSEMENT OF FINANCE OFFICE, U.S. ARMY, WASHINGTON, D.C., DATED DECEMBER 3, 1952, THAT DEDUCTION SHOULD BE MADE FROM AMOUNTS OTHERWISE PAYABLE TO MRS. GROSE TO COVER THE DIFFERENCE BETWEEN HER HUSBAND'S RETIRED PAY AND ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 3, 1916, THROUGH SEPTEMBER 2, 1916. HOWEVER, IT IS THE VIEW OF THIS OFFICE THAT ANY SUCH DEDUCTION IS NOT REQUIRED SINCE MR. GORSE'S STATUS DURING THAT PERIOD WOULD BE TANTAMOUNT TO THAT OF A RETIRED ENLISTED MAN PERFORMING ACTIVE DUTY UNDER PROPER ORDERS EVEN THOUGH HE BE "HELD AND CONSIDERED" TO HAVE BEEN RETIRED ON JUNE 2, 1916.