C retired from the Army on July 31, 1953, under section 514(d)(3) of Public Law 381, 80th Congress, which provides for the retirement of an officer upon completion of 5 years in the permanent grade of Colonel in the Regular Army, or upon completion of 30 years' service in the Regular Army, whichever is later. Since C did not complete the required 30 years of service and 5 years in permanent grade until sometime during the post-World War II period, military service in the World War II and post-World War II periods was used to establish his eligibility to retired pay when he retired under this section.
In January 1959, C attained age 65 and filed an application for old-age insurance benefits based on his military service. At that time, the Department of the Army certified that C's World War II and post-World War II military service had been used in establishing his eligibility to Army retirement pay.
Under the provisions of 10 U.S.C. 1552, a military department may correct any military record of that department when necessary to correct an error or remove an injustice. Pursuant to these provisions, on October 20, 1959, the Army Board for the Correction of Military Records corrected the Army's records to show that C retired under section 5 of the Act of July 31, 1935, as amended. Under this provision of law an officer may voluntarily retire on the basis of service prior to November 12, 1918, and is eligible to receive retired pay at 75 percent of his active duty pay irrespective of the number of years of service. On the basis of the corrected record, the Army certified that C's World War II and post-World War II military service was not used to determine his eligibility for or the amount of his military retired pay.
The issue in this case is whether C's military service in the World War II and post-World War II periods can be used to grant him social security wage credits which would, in turn, entitle him to social security benefits.
Under the provisions of section 217(a) of the Social Security Act, a veteran shall be deemed to have been paid $160 in wages creditable for social security purposes for each month during any part of which he served in the active military or naval service of the United States during World War II (September 16, 1940, through July 24, 1947), but these wage credits cannot be granted if "a benefit * * * which is based, in whole or in part, upon the active military or naval service of such veteran during World War II is determined by any agency or wholly owned instrumentality of the United States (other than the Veterans' Administration) to be payable by it under any other law of the United States or under a system established by such agency or instrumentality. * * *" Section 217(e) contains a like provision with respect to service in the post-World War II period (July 25, 1947, through December 31, 1956).
A military record changed to correct an error or remove an injustice, pursuant to 10 U.S.C. 1552, is considered to be the original military record wherever applicable to any Federal benefit program which credits military service and, therefore, is considered to be operative from the date as of which the correction is effective, rather than from the date the correction was actually made.
In this case, the Army recertified its records to show that the corrective action taken by the Army in October 1959 was effective to correct all records to show that C was retired initially under section 5 of the Act of July 31, 1935, as amended, that he never had his retirement pay fixed under a formula which included a multiple of active service and that his active service after September 15, 1940, was not necessary to establish his eligibility to receive retirement pay. The correction was thus considered as replacing the original determination ab initio, and only the corrected record was evaluated in determining whether the retired pay was based in any part on the World War II or post-World War II military service.
Since service in neither the World War II nor the post-World War II periods was necessary to effect C's retirement under section 5 of the Act of July 31, 1935, social security wage credits may be granted for his service in both periods. Therefore, C is entitled to the social security benefits for which he applied.
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