B-128273, AUG. 27, 1956

B-128273, AUG. 27, 1956

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MAY 29, 1956, AND JUNE 27, 1956, AND TO THE BRIEF SUBMITTED IN CONNECTION WITH THE REQUEST FOR RECONSIDERATION OF THE CLAIM OF COLONEL BERT M. LENNON, U.S.A., RETIRED, FOR ADDITIONAL RETIRED PAY FOR PERIODS SUBSEQUENT TO OCTOBER 1, 1949, WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED JULY 30, 1954. COLONEL LENNON'S CLAIM WAS DISALLOWED FOR THE STATED REASON THAT HE HAD BEEN PAID CORRECTLY AND IN ACCORDANCE WITH HIS ELECTION TO RECEIVE RETIRED PAY COMPUTED PURSUANT TO SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND SUBSEQUENT AUTHORIZED INCREASES.

IT DOES NOT APPEAR NECESSARY TO RECITE COLONEL LENNON'S SEVERAL PERIODS AND TYPES OF SERVICE SINCE THEY ARE SET OUT IN THE ARMY AND AIR FORCE REGISTER, AND CAN BE SUMMARIZED AS FOLLOWS: OVER EIGHT YEARS NON-FEDERAL ENLISTED AND OVER SIX YEARS NON-FEDERAL COMMISSIONED SERVICE IN THE MINNESOTA NATIONAL GUARD, AND 28 YEARS OF FEDERAL SERVICE, INCLUDING SERVICE IN THE FEDERALLY RECOGNIZED NATIONAL GUARD, SERVICE IN WORLD WAR I AND REGULAR ARMY SERVICE. HE WAS RETIRED ON FEBRUARY 29, 1944.

YOU CONTEND THAT WHILE CREDITING THE RETIRED OFFICER WITH OVER 30 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES IS ACCEPTABLE TO YOU, THE COUNTING OF ONLY 28 YEARS (27 YEARS, 8 MONTHS) AS ACTIVE SERVICE FOR RETIRED PAY PERCENTAGE PURPOSES UNDER SECTION 412 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, IS IN ERROR. YOU CONTEND THAT THE OFFICER'S NON-FEDERAL SERVICE IN THE MINNESOTA NATIONAL GUARD SHOULD ALSO BE COUNTED FOR THIS LATTER PURPOSE, IN ORDER TO RAISE HIS PERCENTAGE FACTOR TO 75 PERCENTUM, SINCE THE SAID SECTION 412 PROVIDES FOR INCLUSION OF "ALL SERVICE AS A MEMBER OF THE UNIFORMED SERVICES.' IN SUPPORT OF YOUR POSITION YOU CITE THE CASES OF GORDON V. UNITED STATES, NO. 106-55, U.S. COURT OF CLAIMS, DECIDED APRIL 3, 1956, AND TRACY V. UNITED STATES, NO. 113-55, U.S. COURT OF CLAIMS, DECIDED JUNE 5, 1956.

IT DOES NOT APPEAR THAT COLONEL LENNON WAS RETIRED FOR PHYSICAL DISABILITY OR THAT HIS RETIRED PAY IS OTHERWISE TO BE COMPUTED UNDER TITLE IV OF THE CAREER COMPENSATION ACT, SUPRA, BUT RATHER, IT APPEARS THAT HE WAS RETIRED UNDER THE ACT OF JUNE 13, 1940, 54 STAT. 380, AND HENCE, HIS RETIRED PAY ON AND AFTER OCTOBER 1, 1949, IS WITHIN THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ON AND AFTER OCTOBER 1, 1949, (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY, RETAINER PAY OR EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING OCTOBER 12, 1949, OR (B) MONTHLY RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBERS, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED, THAT FOR THE PURPOSE OF THE COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: PROVIDED FURTHER, THAT IN NO CASE SHALL SUCH RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED; PROVIDED FURTHER, THAT FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED HEREIN SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES, SERVICE AS A CADET OR MIDSHIPMAN IN THE CASE OF THOSE MEMBERS APPOINTED TO THE UNITED STATES MILITARY ACADEMY PRIOR TO AUGUST 24, 1912, OR TO THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IF SUCH SERVICE WAS CREDITABLE FOR LONGEVITY PAY PURPOSES AT THE TIME OF RETIREMENT, OR AS A NURSE, OR AS A CONTRACT NURSE PRIOR TO FEBRUARY 2, 1901, OR AS A RESERVE NURSE SUBSEQUENT TO FEBRUARY 2, 1901, OR AS A CONTRACT SURGEON, OR AS A CONTRACT DENTAL SURGEON, OR AS AN ACTING DENTAL SURGEON, OR AS A VETERINARIAN IN THE QUARTERMASTER DEPARTMENT, CAVALRY, OR FIELD ARTILLERY, OR AS AN ARMY FIELD CLERK OR AS A FIELD CLERK, ARMY QUARTERMASTER CORPS, WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY * * *.'

HENCE, THERE ARE TWO TYPES OF SERVICE WITH WHICH WERE ARE CONCERNED--- ONE IS THAT SERVICE WHICH IS CREDITABLE FOR BASIC PAY PURPOSES WHILE ON ACTIVE DUTY AND THE SECOND IS THAT SERVICE WHICH IS CREDITABLE IN DETERMINING THE PERCENTAGE FACTOR FOR RETIRED PAY UNDER METHOD (B) IN SECTION 511. IT APPEARS TO BE YOUR BELIEF THAT THE SERVICE CREDITABLE FOR ONE IS ALSO CREDITABLE FOR THE OTHER. THIS IS NOT SO, INSOFAR AS SECTION 511 IS CONCERNED.

SECTION 202 OF THE CAREER COMPENSATION ACT, SUPRA, LISTS OR DESCRIBES ALL SERVICE, ACTIVE AND INACTIVE WHICH NORMALLY MAY BE COUNTED IN THE COMPUTATION OF BASIC PAY, BUT SECTION 202 (B) OF THAT ACT EXPRESSLY PROVIDES THAT, EXCEPT FOR ACTIVE SERVICE IN ANY REGULAR OR RESERVE COMPONENT OF ANY OF THE UNIFORMED SERVICES (AND EXCEPT FOR SERVICES CREDITABLE UNDER PROVISIONS IN TITLE IV OF THE ACT WHICH ARE NOT APPLICABLE HERE),"THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASES IN PAY.'

UNDER METHOD (A) OF SECTION 511, COLONEL LENNON WOULD HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY AT THE SAME RATE AT WHICH HE HAD BEEN RECEIVING RETIRED PAY PRIOR TO THE CAREER COMPENSATION ACT, THAT IS, 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 30 YEARS' TOTAL SERVICE COMPUTED ON THE BASIS OF THE RATES OF PAY PRESCRIBED IN THE PROVISIONS OF LAW THAT WERE IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. SEE SECTION 1, PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY SECTION 4, ACT OF JUNE 29, 1946,60 STAT. 345. UNDER METHOD (B) OF SECTION 511, HE WAS ENTITLED TO RECEIVE RETIRED PAY AS SET FORTH IN THE LETTER OF APRIL 13, 1950, FROM THE CHIEF, RETIRED PAY DIVISION, WASHINGTON FINANCE OFFICE, U.S. ARMY, AS FOLLOWS:

"2. THE RECORDS REVEAL THAT YOU WERE PLACED ON THE RETIRED LIST FOR REASONS OTHER THAN DISABILITY, THAT AT THE TIME OF RETIREMENT YOU HAD COMPLETED MORE THAN 30 YEARS' SERVICE FOR LONGEVITY OR "BASIC PAY" PURPOSES, HOWEVER, YOU HAD ONLY COMPLETED 27 YEARS, 8 MONTHS AND 0 DAYS ACTUAL ACTIVE FEDERAL SERVICE. THE STATUTE OF LAW UNDER WHICH YOU WERE RETIRED, SECTION 3 OF THE ACT OF 13 JUNE 1940 ALLOWED YOU FULL RETIRED PAY OF 75 PERCENTUM OF THE ACTIVE DUTY PAY BEING RECEIVED BY YOU. PUBLIC LAW 351, 81ST CONGRESS, APPROVED 12 OCTOBER 1949, ALLOWS THE PERCENTAGE OF ACTIVE DUTY PAY TO BE BASED ON ACTUAL ACTIVE SERVICE ONLY. THEREFORE, YOUR RETIRED PAY BEGINNING 1 OCTOBER 1949 HAS BEEN COMPUTED AS FOLLOWS:

"2 1/2 PERCENTUM OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 30 YEARS' SERVICE ($698.25) MULTIPLIED BY THE NUMBER OF YEARS OF YOUR ACTIVE SERVICE, 28, OR RETIRED PAY AT THE RATE OF $488.78 PER MONTH.

"3. NO PART OF YOUR SERVICE HAS BEEN TAKEN AWAY FOR LONGEVITY PAY PURPOSES. HOWEVER, ONLY YOUR ACTUAL ACTIVE SERVICE IS ALLOWABLE IN DETERMINING THE PERCENTAGE OF ACTIVE DUTY PAY YOU ARE ENTITLED TO.'

A CAREFUL READING OF THE SECOND PROVISO OF SECTION 511 INDICATES THAT FOR THE PURPOSES OF THIS SECTION, THE TERM "ACTIVE SERVICE" AS USED IN THAT SECTION SHALL MEAN ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY, ETC. IT DOES NOT INCLUDE NON-FEDERAL SERVICE IN THE NATIONAL GUARD AND HENCE COLONEL LENNON'S SERVICE IN THE MINNESOTA NATIONAL GUARD IS NOT CREDITABLE FOR DETERMINING THE PERCENTAGE FACTOR IN COMPUTING HIS RETIRED PAY.

THE COURT OF CLAIMS CASES CITED INVOLVE CLAIMS UNDER TITLE IV OF THE ACT RELATING TO RETIREMENT FOR PHYSICAL DISABILITY AND ARE NOT CONSIDERED CONTROLLING IN CASES SUCH AS THIS INVOLVING DIFFERENT STATUTORY PROVISIONS.

ACCORDINGLY, THE SETTLEMENT OF JULY 30, 1954, IS CONSIDERED CORRECT AND UPON REVIEW IS SUSTAINED.