B-78581, OCT. 9, 1967

B-78581, OCT. 9, 1967

ARMED SERVICES - RETIRED PAY - RE-RETIREMENT DECISION TO RETIRED ARMY OFFICER CONCERNING CLAIM FOR INCREASED RETIRED PAY. RETIRED ARMY MEMBER WHO, AFTER SERVICE IN WORLD WAR I, WAS RE RETIRED AS WARRANT OFFICER FOLLOWING SATISFACTORY SERVICE IN TEMPORARY RANK OF LIEUTENANT COLONEL IN WORLD WAR II BECAME ENTITLED UNDER ZUR LINDEN V. U.S., TO RECEIVE RETIRED PAY AT RATE OF 75 PERCENT OF ACTIVE DUTY PAY OF WARRANT OFFICER WITH OVER 3 YEARS' SERVICE FROM DATE OF RE RETIREMENT. UPON ADVANCEMENT ON RETIRED LIST MEMBER BECAME ENTITLED TO RECOMPUTATION OF RETIRED PAY ON SAME 75 PERCENT BASIS PREDICATED ON PAY OF LIEUTENANT COLONEL BASED ON RATES ON DAY OF RETIREMENT. ALTHOUGH MEMBER SHOULD HAVE RECEIVED ADDITIONAL RETIRED PAY FOR PERIODS FEB. 1, 1947 TO SEPT. 30, 1949 AND DEC. 20, 1953 TO MARCH 31, 1955, BENEFITS THAT ACCRUED PRIOR TO 10 YEARS BEFORE RECEIPT OF CLAIM BY GAO ARE BARRED. HOWEVER INCREASED RETIRED PAY MAY BE MADE FOR PERIOD AUGUST 12, 1954 TO MARCH 31 1955.

TO LIEUTENANT COLONEL HARRY C. FRASER, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1967, ADDRESSED TO THE U.S. ARMY FINANCE CENTER, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY FROM A 57-1/2 PERCENT BASIS THAT YOU ARE CURRENTLY RECEIVING, TO A 75 PERCENT BASIS WHICH YOU BELIEVE TO BE DUE YOU BY VIRTUE OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, 37 U.S.C. 115 (1952 ED.).

OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED SEPTEMBER 9, 1964, DECEMBER 1, 1964, AND DECEMBER 17, 1964, IN WHICH YOU WERE ADVISED THAT BY VIRTUE OF THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, THIS OFFICE WAS WITHOUT AUTHORITY TO CONSIDER ANY CLAIM CONCERNING ENTITLEMENT TO RETIRED PAY WHICH ANTEDATED 10 YEARS PRIOR TO THE DATE WE RECEIVED THE FIRST NOTICE OF SUCH CLAIM. IT WAS INDICATED THAT SINCE WE RECEIVED YOUR CLAIM FOR INCREASED RETIRED PAY ON AUGUST 12, 1964, ANY RETIRED PAY CLAIM WHICH YOU MAY HAVE HAD PRIOR TO AUGUST 12, 1954, WAS BARRED FROM CONSIDERATION BY THAT ACT.

YOU AGAIN CONTEND THAT YOU HAVE BEEN UNDERPAID RETIRED PAY SINCE YOU WERE RETIRED ON JANUARY 31, 1947, AND IN SUPPORT OF YOUR CLAIM YOU DIRECT ATTENTION TO A STATEMENT WHICH YOU QUOTE FROM THE MAY 1967 ISSUE OF THE RETIRED OFFICER MAGAZINE. THAT ARTICLE STATES IN SUBSTANCE THAT THE RETIREMENT OF A MEMBER OF THE ARMED SERVICES, IN A WARRANT OFFICER GRADE, AFTER THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, WHERE SUCH RETIREE HAD PREVIOUSLY SERVED IN THE ARMED FORCES DURING WORLD WAR I, ENTITLED HIM TO COMPUTE HIS RETIRED PAY BASED ON A 75 PERCENT MULTIPLIER FACTOR.

THE RECORD SHOWS THAT YOU SERVED AS A MEMBER OF THE REGULAR ARMY PRIOR TO NOVEMBER 12, 1918; AS A WARRANT OFFICER (JG) IN THE REGULAR ARMY FROM OCTOBER 1, 1941, TO MAY 11, 1942, AND AS A COMMISSIONED OFFICER, AUS, FROM MAY 12, 1942, TO DECEMBER 7, 1946, DURING WHICH TIME YOU WERE PROMOTED TO THE TEMPORARY RANK OF LIEUTENANT COLONEL, THE HIGHEST RANK SATISFACTORILY HELD BY YOU. ON DECEMBER 8, 1946, YOU WERE REAPPOINTED A WARRANT OFFICER (JG) IN THE REGULAR ARMY AND AT YOUR OWN REQUEST WERE RETIRED FROM ACTIVE SERVICE ON JANUARY 31, 1947, UNDER SECTION 5 OF THE ACT OF AUGUST 21, 1941, CH. 384, 55 STAT. 653, AFTER 23 YEARS, 1 MONTH AND 9 DAYS' ACTIVE SERVICE.

IN OUR DECISION 43 COMP. GEN. 68, WE DECIDED TO FOLLOW THE HOLDING IN THE CASE OF ZUR-LINDEN V. UNITED STATES, 158 CT. CL. 383 (1962), THAT A "WARRANT OFFICER" IS AN "OFFICER" FOR PURPOSES OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW. ON THE BASIS OF YOUR SERVICE RECORD, IT WOULD THEREFORE APPEAR THAT YOU BECAME ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY AND ALLOWANCES OF A WARRANT OFFICER (JG) WITH OVER 23 YEARS' SERVICE FROM FEBRUARY 1, 1947, TO SEPTEMBER 30, 1949, BASED ON THE RATE OF PAY PRESCRIBED IN THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343 ($182.25). YOU WERE PAID AT THE RATE OF $139.73 PER MONTH.

ON OCTOBER 1, 1949, THE CAREER COMPENSATION ACT, CH. 681, 63 STAT. 802, BECAME EFFECTIVE, SECTION 511 OF WHICH PROVIDED FOR THE PAYMENT OF RETIRED PAY TO MEMBERS RETIRED PRIOR TO THE PASSAGE OF THAT ACT ON THE BASIS OF THE HIGHER OF THE FOLLOWING:

"/A) THE MONTHLY RETIRED PAY, * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS OR FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR

"/B) MONTHLY RETIRED PAY, * * * EQUAL TO 2-1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, * * * SATISFACTORILY HELD, * * * MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: "

EFFECTIVE OCTOBER 1, 1949, YOU BECAME ENTITLED TO RETIRED PAY BASED ON THE GREATER OF METHOD (A), 75 PERCENT OF THE PAY AND ALLOWANCES OF A WARRANT OFFICER WITH 23 YEARS' SERVICE APPLYING THE RATES IN EFFECT AT THE TIME OF YOUR RETIREMENT ($182.25), OR METHOD (B), 57-1/2 PERCENT OF THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL (YOUR HIGHEST FEDERALLY RECOGNIZED RANK) BASED ON THE 1949 RATES ($319.56). IT APPEARS THAT YOU RECEIVED RETIRED PAY AT THE LATTER RATE COMMENCING OCTOBER 1, 1949. THAT RATE WAS INCREASED TO $332.34 COMMENCING MAY 1, 1952, BASED ON THE RATE PRESCRIBED IN THE ACT OF MAY 19, 1952, CH. 310, 66 STAT. 79.

THE RECORDS ALSO SHOW THAT UPON COMPLETION OF 30 YEARS' ACTIVE AND INACTIVE SERVICE ON DECEMBER 20, 1953, YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 21, 1941, AS AMENDED BY SECTION 203 (C) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085. AS SO AMENDED, THAT ACT AUTHORIZED THE PAYMENT OF ,RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE AT THE TIME OF RETIREMENT.'

SINCE YOUR RETIREMENT BENEFITS, PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 ARE DEEMED TO HAVE BEEN WITHIN THE PURVIEW OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT AT THE TIME OF YOUR RETIREMENT, THUS FIXING THE "RATE PRESCRIBED BY LAW" AT 75 PERCENT, UPON YOUR ADVANCEMENT ON THE RETIRED LIST YOU BECAME ENTITLED TO RECOMPUTE YOUR RETIRED PAY ON THE SAME 75 PERCENT SAVED PAY BASIS, BUT PREDICATED ON THE PAY OF A LIEUTENANT COLONEL WITH 23 YEARS' SERVICE, BASED ON THE RATES IN EFFECT ON THE DAY YOU RETIRED.

IN OTHER WORDS, ON THE DATE OF YOUR ACTUAL ADVANCEMENT ON THE RETIRED LIST TO THE RANK OF LIEUTENANT COLONEL, YOUR RETIRED PAY SHOULD HAVE BEEN RECOMPUTED UNDER SECTION 511 (A) OF THE CAREER COMPENSATION ACT AT 75 PERCENT OF THE PAY AND ALLOWANCES OF A LIEUTENANT COLONEL WITH 23 YEARS' SERVICE BASED ON THE RATES IN EFFECT ON THE DATE OF YOUR RETIREMENT IN 1947, PLUS THE 4 PERCENT INCREASE AUTHORIZED UNDER THE 1952 ACT, THUS INCREASING YOUR RETIRED PAY TO $337.84 PER MONTH EFFECTIVE DECEMBER 20, 1953. HOWEVER, YOU CONTINUED TO BE PAID UNDER SECTION 511 (B) AT THE RATE OF $332.54 PER MONTH UNTIL APRIL 1, 1955.

THE CAREER INCENTIVE ACT OF 1955, CH. 20, 69 STAT. 18, BECAME EFFECTIVE ON APRIL 1, 1955. SECTIONS 5 AND 6 OF THAT ACT PROVIDED A NEW BASIS FOR THE COMPUTATION OF RETIRED PAY FOR RETIRED PERSONNEL IN YOUR SITUATION, THEREBY INCREASING THE BENEFITS THAT WOULD OTHERWISE ACCRUE UNDER BOTH SECTION 511 (A) AND 511 (B) OF THE CAREER COMPENSATION ACT, AS AMENDED. THESE SECTIONS OF THE 1955 ACT PROVIDED IN PERTINENT PART AS FOLLOWS:

"SEC. 5. ANY PERSON NOW OR HEREAFTER ENTITLED TO RETIRED PAY, * * * COMPUTED AT THE RATES PRESCRIBED IN * * * THE CAREER COMPENSATION ACT OF 1949 SHALL BE ENTITLED TO HAVE HIS PAY COMPUTED AT THE RATES PRESCRIBED * * * BY THIS ACT * * *.

"SEC. 6. MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO RECEIVE RETIRED PAY, * * * UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SHALL BE ENTITLED TO AN INCREASE OF 6 PER CENTUM OF THE RETIRED PAY, * * * TO WHICH THEY ARE NOW ENTITLED.' THE 6 PERCENT INCREASE IN THE RETIRED PAY YOU THEN WERE ENTITLED TO RECEIVE ($337.84), AUTHORIZED BY SECTION 6 UNDER METHOD (A) OF SECTION 511 ($358.11), WAS LESS THAN THAT PAYABLE ON THE 57-1/2 PERCENT BASIS OF METHOD (B), AUTHORIZED BY SECTION 5 ($367.77). THE RECORDS SHOW THAT YOU WERE PAID AT THE LATTER RATE COMMENCING APRIL 1, 1955. THIS WAS INCREASED BY 6 PERCENT TO $389.84 AS AUTHORIZED BY THE ACT OF MAY 20, 1958, PUB.L. 85-422, EFFECTIVE JUNE 1, 1958.

ON OCTOBER 1, 1963, THE UNIFORMED SERVICES PAY ACT OF 1963, PUB.L. 88- 132, 77 STAT. 210, BECAME EFFECTIVE, SECTION 5 OF WHICH AMENDED THE RETIREMENT PROVISIONS IN PRIOR ACTS AS THEY RELATED TO YOUR SITUATION. SUBSECTIONS 5 (C) (1) AND 5 (C) (2) PROVIDED FOR RECOMPUTATION IN YOUR CASE OF EITHER 57-1/2 PERCENT OF THE PAY AND ALLOWANCES FOR A LIEUTENANT COLONEL WITH 23 YEARS' ACTIVE SERVICE BASED ON THE 1958 RATES ($445.63), OR AN INCREASE OF 5 PERCENT IN THE RETIRED PAY YOU WERE RECEIVING BEFORE THE EFFECTIVE DATE OF THE 1963 ACT ($409.33). THE RECORDS REFLECT THAT YOU WERE PAID $445.63 PER MONTH BEGINNING OCTOBER 1, 1963. THE TWO SUBSEQUENT RETIRED PAY INCREASES AUTHORIZED BY LAW, $465.24 AND $482.45, WERE PAID TO YOU EFFECTIVE SEPTEMBER 1, 1965, AND DECEMBER 1, 1966, RESPECTIVELY. YOUR CURRENT RETIRED PAY COMPUTED ON THE 75 PERCENT SAVED PAY BASIS OF SECTION 511 (A) WOULD BE ONLY $431.52 PER MONTH.

ACCORDINGLY, IT WILL BE SEEN THAT WHILE YOU WERE ENTITLED TO AND SHOULD HAVE RECEIVED ADDITIONAL RETIRED PAY BENEFITS FOR THE PERIODS FEBRUARY 1, 1947, TO SEPTEMBER 30, 1949, AND DECEMBER 20, 1953, TO MARCH 31, 1955, ANY INCREASED BENEFITS THAT ACCRUED TO YOU PRIOR TO 10 YEARS BEFORE RECEIPT OF YOUR CLAIM IN THIS OFFICE ON AUGUST 12, 1964, ARE BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, AND SO MUCH OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 17, 1964, DENYING YOUR CLAIM WHICH RELATES TO THE PERIOD PRIOR TO AUGUST 12, 1954, IS SUSTAINED. IT APPEARS, HOWEVER, THAT YOU ARE ENTITLED TO INCREASED RETIRED PAY AT THE RATE OF $5.50 PER MONTH FOR THE PERIOD AUGUST 12, 1954, TO MARCH 31, 1955. SETTLEMENT WILL ISSUE IN DUE COURSE ALLOWING THE AMOUNT FOUND DUE ON THAT BASIS.