B-126885, SEP. 5, 1956

B-126885, SEP. 5, 1956

TO MR. GERGORIO BAYLON:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED NOVEMBER 21, 1955, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD BEGINNING MAY 1, 1946.

IT IS YOUR CONTENTION THAT YOUR RETIRED PAY SHOULD BE BASED UPON THE PAY OF CORPORAL, ARMY OF THE UNITED STATES, WHICH YOU WERE RECEIVING ON APRIL 30, 1946, THE DATE OF YOUR RETIREMENT, AND NOT UPON THE PAY OF A CORPORAL, PHILIPPINE SCOUTS. YOU BASE YOUR CLAIM FOR SUCH ADDITIONAL PAY ON OUR DECISION OF MAY 28, 1953, B-101978, IN THE CASE OF FLORENCIO CANCEL. YOU ALSO SAY THAT YOU HAVE BEEN INFORMED THAT CLAIMS IN LIKE CASES HAVE BEEN PAID AND THAT A CLAIMANT WHO WAS PLACED ON THE RETIRED LIST WITH YOU WAS PAID HIS CLAIM WHICH IS IDENTICAL WITH YOU CLAIM.

THE ADJUTANT GENERAL OF THE ARMY, WHO IS THE OFFICIAL CUSTODIAN OF THE PERSONNEL RECORDS OF ENLISTED MEN OF THE ARMY, HAS REPORTED THAT, AFTER HAVING SERVED 19 YEARS, 4 MONTHS AND 5 DAYS, AS AN ENLISTED MAN IN THE REGULAR ARMY (PHILIPPINE SCOUTS) YOU WERE HONORABLY DISCHARGED ON JUNE 19, 1945; THAT YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON JUNE 20, 1945, FOR A PERIOD OF 3 EARS; AND THAT YOU WERE RETIRED AND TRANSFERRED TO THE ENLISTED RESERVE CORPS ON APRIL 30, 1946, PURSUANT TO ORDERS DATED APRIL 10, 1946. AT THAT TIME YOU HAD SERVED 20 YEARS, 2 MONTHS AND 16 DAYS, ALL OF SUCH SERVICE EXCEPT 10 MONTHS AND 11 DAYS HAVING BEEN IN THE PHILIPPINE SCOUTS. ALTHOUGH YOU WERE SERVING AS A CORPORAL IN AN ENLISTMENT IN THE ARMY OF THE UNITED STATES AT THE TIME OF YOUR RETIREMENT AND RECEIVING THE PAY AUTHORIZED FOR INDIVIDUALS SO ENLISTED, YOUR RETIRED PAY WAS COMPUTED ON THE PAY AUTHORIZED FOR A CORPORAL, PHILIPPINE SCOUTS, BASED UPON A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOUR RETIREMENT WAS EFFECTED IN A PHILIPPINE SCOUT STATUS.

IT WAS INDICATED IN YOUR RETIREMENT ORDERS THAT YOUR RETIREMENT WAS EFFECTED UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED OCTOBER 6, 1945, 59 STAT. 538, WHICH IS CITED AS THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945. SECTION 4 OF THAT ACT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED NOT LESS THAN TWENTY OR MORE THAN TWENTY-NINE YEARS OF ACTIVE SERVICE, HE MAY UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS * * * AND AT THE SAME TIME BE RETIRED FROM THE REGULAR ARMY. AN ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE * * * UNTIL HIS DEATH, ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE AVERAGE ANNUAL ENLISTED PAY (INCLUDING LONGEVITY PAY) HE WAS RECEIVING FOR THE SIX MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT MULTIPLIED BY A SUM EQUAL TO THE SUM OF THE NUMBER OF YEARS OF HIS ACTIVE SERVICE PERFORMED NOT IN EXCESS OF TWENTY-NINE YEARS. * *

YOU WILL NOTICE THAT THIS STATUTE, UNDER WHICH YOU WERE RETIRED, APPLIES ONLY TO ENLISTED MEN OF THE REGULAR ARMY, WHICH IS REGARDED AS INCLUDING ENLISTED MEN OF THE PHILIPPINE SCOUTS. PERSONS ENLISTED IN THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, ARE NOT ENLISTED MEN OF THE REGULAR ARMY AND DO NOT COME UNDER THIS "20-YEAR" STATUTE. IT FOLLOWS THAT YOU WERE NOT ENTITLED TO BE RETIRED UNDER THIS STATUTE AS A MEMBER OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, AND ARE NOT ENTITLED TO RETIRED PAY COMPUTED ON THAT BASIS. BUT, AFTER YOUR REENLISTMENT, YOU HAD CONTINUED TO SERVE AS BEFORE IN YOUR PHILIPPINE SCOUT ORGANIZATION AND, TO SAVE YOUR RIGHTS, THE ARMY REGARDED YOU AS HAVING BEEN RETIRED AS A PHILIPPINE SCOUT. THE ADJUTANT GENERAL OF THE ARMY TOLD YOU IN HIS LETTER OF SEPTEMBER 8, 1955, THAT IN CASES SUCH AS YOURS IT HAD BEEN DETERMINED THAT RETIRED PAY SHOULD BE AUTHORIZED ON THE PHILIPPINE SCOUT PAY SCALE. IF THAT HAD NOT BEEN DONE, YOU COULD HAVE RECEIVED NO RETIRED PAY AT ALL. WHILE THE PROPRIETY OF SUCH ARMY DETERMINATION IS NOT FREE FROM DOUBT, IN VIEW OF ALL THE CIRCUMSTANCES HERE INVOLVED, IT WILL NOT NOW BE QUESTIONED.

THE DECISION OF MAY 28, 1953, B-101976, TO WHICH YOU REFER, INVOLVED THE ACT OF MARCH 2, 1907, AS AMENDED, 10 U.S.C. 947, 980, WHICH PROVIDES FOR RETIREMENT OF ENLISTED MEN OF THE "ARMY" AFTER 30 YEARS' SERVICE. THAT DECISION HAS NO APPLICATION TO YOUR CASE, THE PROVISIONS OF THE ACT OF OCTOBER 6, 1945, BEING ENTIRELY DIFFERENT FROM THOSE OF THE 1907 STATUTE.

ENLISTED MEN OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, ARE ENLISTED MEN OF THE ARMY" BUT THEY ARE NOT ENLISTED MEN OF THE "REGULAR ARMY.' THEREFORE, THEY COME UNDER THIS ,30-YEAR" STATUTE BUT NOT UNDER THE "20-YEAR" STATUTE UNDER WHICH YOU WERE RETIRED. APPARENTLY THE OTHER "CLAIMANT" YOU MENTION WAS RETIRED UNDER THE 30 YEAR STATUTE.