B-120986, JUN. 16, 1964

B-120986, JUN. 16, 1964

TO ANSELL AND ANSELL:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER--- RECEIVED IN OUR OFFICE ON MAY 4, 1964--- IN WHICH YOU PRESENTED A CLAIM ON BEHALF OF YOUR CLIENT, MAJOR MARTIN R. RICE, 06151, UNITED STATES ARMY, RETIRED, FOR INCREASED DISABILITY RETIRED PAY BELIEVED TO BE DUE HIM, AS A RETIRED OFFICER OF THE ARMY, PURSUANT TO THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, AND THE AMENDMENTS THERETO.

THE RECORDS SHOW THAT THE CLAIMANT WAS RETIRED FROM THE REGULAR ARMY FOR PHYSICAL DISABILITY ON JULY 3, 1922, IN THE GRADE OF CAPTAIN AND THAT HE SERVED ON ACTIVE DUTY FROM NOVEMBER 24, 1922, TO SEPTEMBER 1, 1926. THEY FURTHER SHOW THAT HE WAS AGAIN CALLED TO ACTIVE DUTY ON DECEMBER 31, 1940, AS A RETIRED CAPTAIN; THAT HE WAS PROMOTED TO THE GRADE OF MAJOR, ARMY OF THE UNITED STATES, IN 1942; THAT HE CONTINUED ON ACTIVE DUTY AS A MAJOR UNTIL AUGUST 1, 1948, WHEN HE REVERTED TO INACTIVE DUTY ON THE RETIRED LIST AS A CAPTAIN; AND THAT ON AUGUST 12, 1948, HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF MAJOR FOR SATISFACTORY SERVICE IN THAT GRADE DURING WORLD WAR II, AS PROVIDED IN SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085. ON JULY 12, 1955, THE COURT OF CLAIMS, IN THE CASE OF MARTIN R. RICE V. UNITED STATES, 132 CT.CL. 590, HELD THAT HE INCURRED ADDITIONAL PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE WITHIN THE MEANING OF THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 29, 1943, CH. 178, 57 STAT. 249, AND THAT HE WAS, THEREFORE, ENTITLED TO THE RETIRED PAY PROVIDED FOR AN OFFICER SERVING IN THE GRADE OF MAJOR, AND COULD COUNT, FOR ASCERTAINING THE AMOUNT OF HIS RETIRED PAY, ALL OF THE MORE THAN 30 YEARS DURING WHICH HE HAD HELD A COMMISSION, AND NOT JUST THE "15 YEARS PLUS" OF HIS ACTIVE SERVICE.

HIS DISABILITY RETIRED PAY IS BEING COMPUTED ON THE BASIS OF THE PAY RATES WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, AND YOU URGE THAT SUCH PAY SHOULD BE COMPUTED ON THE PAY PROVIDED IN THE CAREER COMPENSATION ACT OF 1949 FOR A MAJOR WITH OVER 30 YEARS OF ACTIVE SERVICE.

MAJOR RICE'S ELIGIBILITY FOR INCREASED RETIRED PAY MUST BE DETERMINED BY THE PERTINENT PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. UNDER SUCH PROVISIONS, PERSONS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, MIGHT ELECT, WITHIN THE 5-YEAR PERIOD FOLLOWING THAT DATE, (A) TO QUALIFY FOR DISABILITY RETIREMENT UNDER THE PROVISIONS OF SECTION 402 (D) AND THUS HAVE RETIRED PAY COMPUTED BY EITHER (1) THE YEARS OF SERVICE METHOD (BASIC PAY MULTIPLIED BY YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT), OR (2) THE PERCENTAGE OF DISABILITY METHOD (BASIC PAY MULTIPLIED BY THE PERCENTAGE OF DISABILITY); OR (B) THE HIGHER OF THE TWO METHODS OF COMPUTATION UNDER SECTION 511 OF THE ACT CONSISTING OF (A) THE RETIRED PAY AUTHORIZED BY THE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, AND (B) A YEARS OF SERVICE METHOD SIMILAR TO THAT IN SECTION 402 (D).

EVEN IF THE RULE OF RES JUDICATA OR ESTOPPEL BY JUDGMENT WERE NOT HERE INVOLVED AS A RESULT OF THE COURT'S DECISION OF JULY 12, 1955, YOUR ATTENTION IS INVITED TO THE FACT THAT THE ABOVE-CITED STATUTORY PROVISIONS RELATING TO YEARS OF SERVICE SPECIFY THAT THE PERCENTAGE MULTIPLE FACTOR USED IN DETERMINING THE AMOUNT OF RETIRED PAY IN SUCH CASES SHALL BE COMPUTED ON THE BASIS OF YEARS OF "ACTIVE SERVICE.' SINCE THE RECORDS SHOW THAT MAJOR RICE HAD COMPLETED LESS THAN 20 YEARS OF ACTIVE SERVICE WHEN HE WAS RETURNED TO THE RETIRED LIST ON AUGUST 1, 1948, YOU ARE ADVISED THAT IT IS NOT TO HIS ADVANTAGE TO HAVE HIS RETIRED PAY COMPUTED UNDER THE YEARS OF ACTIVE SERVICE METHOD THERE PRESCRIBED EVEN IF AN ELECTION TO HAVE HIS RETIRED PAY SO COMPUTED COULD STILL BE MADE. COMMENCING OCTOBER 1, 1949, RETIRED PAY SO COMPUTED OF A MAJOR WITH OVER 30 YEARS' SERVICE, 20 OF WHICH WERE ACTIVE SERVICE, WAS ONLY $256.50 PER MONTH. MAJOR RICE ACTUALLY WAS PAID AT THE RATE OF $360.94.