B-98834, JANUARY 11, 1951, 30 COMP. GEN. 287

B-98834, JANUARY 11, 1951, 30 COMP. GEN. 287

PAY - RETIRED - EFFECTIVE DATE - ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 UNDER SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, PROVIDING THAT OTHERWISE QUALIFIED PERSONS SHALL,"UPON APPLICATION THEREFOR," BE GRANTED RETIRED PAY, AN APPLICANT WHO QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948, OR BETWEEN THAT DATE AND JANUARY 1, 1949--- THE EFFECTIVE DATE OF THE ACT- -- MAY BE PAID RETIRED PAY BEGINNING WITH THE DATE HIS APPLICATION WAS FILED, IF TIMELY FILED, ALTHOUGH ADMINISTRATIVE APPROVAL THEREOF WAS DELAYED; HOWEVER, IN ALL OTHER CASES WHERE AN APPLICATION IS OR HAS BEEN PROPERLY APPROVED, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION IS FILED OR THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICANT INITIALLY MEETS THE STATUTORY AGE AND SERVICE REQUIREMENTS, WHICHEVER IS LATER. COMP. GEN. 321, MODIFIED IN PART.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE AIR FORCE, JANUARY 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1950, RELATIVE TO DECISION OF THIS OFFICE DATED NOVEMBER 23, 1948, 28 COMP. GEN. 321, WHEREIN THERE WERE CONSIDERED CERTAIN QUESTIONS ARISING IN CONNECTION WITH THE ADMINISTRATION OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 1090, 1091. YOU REFER SPECIFICALLY TO THE ANSWERS GIVEN THEREIN TO QUESTIONS (E) AND (F), THAT IS, TO THAT PART OF THE SAID DECISION WHEREIN IT WAS STATED (PAGE 325/---

IT WILL BE NOTED THAT SECTION 302 (A) PROVIDES THAT OTHERWISE QUALIFIED PERSONS SHALL,"UPON APPLICATION THEREFOR," BE GRANTED RETIRED PAY. THAT PROVISION, AT MOST, GIVES AN INCHOATE RIGHT TO RETIRED PAY WHICH VESTS ONLY AFTER APPLICATION IS MADE THEREFOR AND SUCH APPLICATION IS APPROVED. HENCE, AS A GENERAL PROPOSITION NO RETIRED PAY WOULD ACCRUE PRIOR TO THE DATE OF APPROVAL OF THE APPLICATION OF SECTION 312, REFERRED TO ABOVE, THE ACT DOES NOT BECOME EFFECTIVE UNTIL THE DATE SET BY THE COGNIZANT SECRETARY, BUT NOT LATER THAN JANUARY 1, 1949, AND UNTIL THE ACT ACTUALLY IS MADE EFFECTIVE IT WOULD APPEAR THAT APPLICATIONS FOR ITS BENEFITS COULD NOT PROPERLY BE FILED OR APPROVED. IT WOULD SEEM THAT ONE OF THE PURPOSES OF SECTION 312 WAS MERELY TO PERMIT A DELAY IN THE ACCEPTANCE OF SUCH APPLICATIONS UNTIL SUCH TIME AS THE VARIOUS SERVICES COULD ESTABLISH AND PLACE IN OPERATION THE NECESSARY ADMINISTRATIVE PROCEDURE FOR PROCESSING THEM. WITH THAT IN MIND AND TAKING INTO CONSIDERATION THE FACT THAT THE EXPRESS PROHIBITION AGAINST THE ACCRUAL OF BACK PAY AND ALLOWANCES CONTAINED IN SECTION 310 REFERS ONLY TO BACK PAY AND ALLOWANCES FOR ANY PERIOD WHO WERE OTHERWISE QUALIFIED FOR SUCH RETIRED PAY ON JUNE 29, 1948- -- THE DATE OF ENACTMENT--- OR WHO BECAME QUALIFIED THEREFOR BETWEEN THAT DATE AND THE DATE FINALLY SET AS THE EFFECTIVE DATE OF THE ACT, WOULD BE ELIGIBLE TO RECEIVE RETIRED PAY FROM THE TIME THEY QUALIFIED THEREFOR, OR FROM JUNE 29, 1948, WHICHEVER IS LATER, PROVIDED APPLICATION FOR SUCH RETIRED PAY IS FILED AND APPROVED WITHIN A REASONABLE TIME AFTER THE EFFECTIVE DATE OF THE ACT IS ANNOUNCED. COMPARE THE ANSWER TO QUESTION (B) ABOVE. PERSONNEL BECOMING QUALIFIED FOR RETIRED PAY AFTER THE EFFECTIVE DATE OF THE ACT (AS FIXED UNDER THE PROVISIONS OF SECTION 312) WOULD BE ELIGIBLE TO RECEIVE SUCH RETIRED PAY ONLY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEIR APPLICATION THEREFOR IS APPROVED IN VIEW OF THE PROVISIONS OF SECTION 302 (A), SUPRA, AND THE PROVISIONS OF SECTION 1 OF THE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A * * *.

YOU STATE THAT COLONEL HANPHYN T. CARLSON, AO-126925, UNITED STATES AIR FORCE RESERVE, SUBMITTED APPLICATION FOR RETIREMENT BENEFITS UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, SUPRA, TO HEADQUARTERS FOURTH AIR FORCE ON FEBRUARY 1, 1950. THE APPLICATION AND MASTER PERSONNEL RECORDS WERE FORWARDED TO THE CONTINENTAL AIR COMMAND ON FEBRUARY 13, 1950, AND FROM THAT COMMAND TO AIR FORDE HEADQUARTERS ON FEBRUARY 27, 1950. HOWEVER, DUE TO CLERICAL ERROR, THE APPLICATION FOR RETIREMENT AND MASTER PERSONNEL RECORDS WERE FILED IN THE OFFICE OF THE AIR ADJUTANT GENERAL, PERSONNEL RECORDS SERVICE DIVISION, WITHOUT ACTION HAVING BEEN TAKEN THEREON. COLONEL CARLSON REACHED THE AGE OF SIXTY YEARS ON MARCH 28, 1950, AND HIS RECORDS AND RETIREMENT APPLICATION WERE IN AIR FORCE HEADQUARTERS IN SUFFICIENT TIME FOR HIS RETIREMENT TO HAVE BEEN MADE EFFECTIVE MARCH 31, 1950, HAD THE ERROR NOT OCCURRED.

YOU ALSO REFER TO THE CASE OF LIEUTENANT COLONEL ROBERT HENRY HANCOCK, AO -179739, WHO SUBMITTED APPLICATION FOR SUCH RETIREMENT BENEFITS TO HEADQUARTERS NINTH AIR FORCE ON APRIL 13, 1949. HOWEVER, DUE TO DIFFICULTIES ENCOUNTERED IN VERIFYING CERTAIN PERIODS OF HIS SERVICE, HIS APPLICATION FOR RETIREMENT AND MASTER PERSONNEL RECORDS WERE NOT FORWARDED TO AIR FORCE HEADQUARTERS UNTIL MAY 19, 1950. COLONEL HANCOCK REACHED THE AGE OF SIXTY YEARS ON JUNE 22, 1946, AND AS OF JUNE 29, 1948, HAD COMPLETED SUFFICIENT SERVICE TO QUALIFY FOR RETIREMENT UNDER THE PROVISIONS OF TITLE III, SUPRA.

IN VIEW OF THE CIRCUMSTANCES OUTLINED ABOVE, YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

(A) IS COLONEL CARLSON LEGALLY ENTITLED TO BE PLACED ON THE AIR FORCE UNITED STATES OFFICERS' RETIRED LIST EFFECTIVE MARCH 31, 1950, WITH ENTITLEMENT TO RETIRED PAY FROM APRIL 1, 1950?

(B) IS COLONEL HANCOCK ENTITLED TO BE PLACED ON THE AIR FORCE UNITED STATES OFFICERS' RETIRED LIST EFFECTIVE JUNE 29, 1948 WITH PAY FROM THAT DATE?

(C) IF THE ANSWER TO (B) ABOVE IS IN THE AFFIRMATIVE, WILL YOUR OFFICE APPROVE RETROACTIVE PAYMENTS TO THOSE PERSONS WHO ARE OTHERWISE QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948 OR WHO BECAME QUALIFIED THEREFORE BETWEEN THAT DATE AND 1 JANUARY 1949 (THE EFFECTIVE DATE OF THE ACT) SO LONG AS THE APPLICATION WAS DULY FILED WITHIN A REASONABLE TIME?

WHILE IT DOES NOT APPEAR THAT THERE IS ANY QUESTION THAT ADMINISTRATIVE APPROVAL IS REQUIRED IN EVERY CASE BEFORE THERE CAN BE ANY ACTUAL ENTITLEMENT TO RETIRED PAY UNDER THE STATUTORY PROVISIONS IN QUESTION, I DO NOT CONSIDER THAT IT WOULD BE WITHIN EITHER THE SPIRIT OR THE INTENT OF THE LAW TO APPLY THE APPROVAL REQUIREMENT SO AS TO PENALIZE AN INDIVIDUAL BECAUSE OF AN ADMINISTRATIVE DELAY IN GIVING SUCH APPROVAL, REGARDLESS OF WHETHER THE DELAY WAS AVOIDABLE OR UNAVOIDABLE AND REGARDLESS OF THE LENGTH OF THE DELAY. TAKING THAT VIEW, THERE WOULD APPEAR TO BE NO GRAVE OBJECTION TO CONSIDERING THE ADMINISTRATIVE APPROVAL IN ALL CASES OF RETIREMENT UNDER TITLE III, SUPRA, AS A NUNC PRO TUNC ACTION SO THAT SUCH APPROVAL WOULD RELATE BACK TO THE DATE THE APPLICATION WAS FILED. NOTHING IS FOUND IN THE LAW WHICH EITHER EXPRESSLY OR IMPLIEDLY WOULD PRECLUDE SUCH A CONCLUSION AND THAT VIEW WOULD APPEAR TO BE IN CONSONANCE WITH THE GENERAL SPIRIT AND PURPOSE OF THE LAW. THE SAID DECISION OF NOVEMBER 23, 1948, IS MODIFIED ACCORDINGLY, SO THAT IN ANY CASE WHERE THE APPLICANT QUALIFIED FOR RETIRED PAY ON JUNE 29, 1948, OR BETWEEN THAT DATE AND JANUARY 1, 1949--- THE EFFECTIVE DATE OF THE ACT--- HE MAY BE PAID RETIRED PAY BEGINNING WITH THE DATE HE QUALIFIED THEREFOR, PROVIDED THAT HIS APPLICATION WAS TIMELY FILED. IN ALL OTHER CASES WHERE THE APPLICATION IS OR HAS BEEN PROPERLY APPROVED, RETIRED PAY MAY BE PAID BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH THE APPLICATION THEREFOR IS FILED ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICANT INITIALLY MEETS THE AGE AND SERVICE REQUIREMENTS OF THE STATUTE AND THEREBY BECOMES ELIGIBLE FOR SUCH RETIRED PAY, WHICHEVER IS LATER.

IN VIEW OF THE FOREGOING, THE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.