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B-160459, JAN. 9, 1967

B-160459 Jan 09, 1967
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OBERLIN: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3. IN THAT LETTER YOU WERE ADVISED THAT THE PURPOSE OF THIS ACT WAS TO PROVIDE A LIMITED PERIOD OF TIME WITHIN WHICH CERTAIN RETIRED OFFICERS MAY FILE CLAIM FOR RETIREMENT BENEFITS WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS (THE ACT OF OCTOBER 9. ENCLOSED WITH YOUR REQUEST WAS A COPY OF AN ARTICLE FROM THE JULY 1966 RETIRED ARMY PERSONNEL BULLETIN WHICH STATES THAT UNDER THE ACT OF APRIL 14. IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY. (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1. WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY. (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31.

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B-160459, JAN. 9, 1967

TO MR. BENJAMIN G. OBERLIN:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3, 1966, REQUESTING CLARIFICATION OF OUR CLAIMS DIVISION LETTER DATED OCTOBER 25, 1966, DENYING YOUR CLAIM FOR INCREASED RETIRED PAY UNDER THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120. IN THAT LETTER YOU WERE ADVISED THAT THE PURPOSE OF THIS ACT WAS TO PROVIDE A LIMITED PERIOD OF TIME WITHIN WHICH CERTAIN RETIRED OFFICERS MAY FILE CLAIM FOR RETIREMENT BENEFITS WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS (THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237).

YOU CONTEND THAT YOUR SERVICE AS A COMMISSIONED OFFICER DURING WORLD WAR I, TERMINATED BY DISCHARGE IN 1919, AND YOUR SERVICE AS A COMMISSIONED OFFICER FROM 1942 UNTIL YOUR RETIREMENT IN 1954 SHOULD CLEARLY QUALIFY YOU FOR INCREASED RETIREMENT BENEFITS UNDER THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120. ALSO YOU REQUEST CLARIFICATION OF THE TERM "CERTAIN OFFICERS" AS USED IN OUR CLAIMS DIVISION LETTER OF OCTOBER 25, 1966. ENCLOSED WITH YOUR REQUEST WAS A COPY OF AN ARTICLE FROM THE JULY 1966 RETIRED ARMY PERSONNEL BULLETIN WHICH STATES THAT UNDER THE ACT OF APRIL 14, 1966,"RETIRED OFFICERS MAY FILE A CLAIM FOR INCREASED RETIRED PAY.'

THE ACT OF APRIL 14, 1966, TO WHICH YOU REFER, PROVIDES IN PERTINENT PART:

"THAT THE LIMITATION OF TIME PRESCRIBED BY THE ACT OF OCTOBER 9, 1940 (54 STAT. 1061; 31 U.S.C. 237), IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY OR PUBLIC HEALTH SERVICE, IF (1) HE SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918; (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1, 1942, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942: * * *"

IT WILL BE NOTED THAT THAT ACT DOES NOT GRANT AN INCREASE IN RETIRED PAY. IT MERELY WAIVES THE STATUTE OF LIMITATIONS IN CONNECTION WITH THE CONSIDERATION OF CERTAIN CLAIMS FOR INCREASED RETIRED PAY OTHERWISE AUTHORIZED BY STATUTE. THE RETIRED PAY TO WHICH THAT ACT REFERS IS THAT AUTHORIZED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, WHICH PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE AND THE UNITED STATES COURT OF CLAIMS THAT THE FOURTH PARAGRAPH OF SECTION 15 APPLIES ONLY TO RETIRED COMMISSIONED OFFICERS OF A REGULAR COMPONENT AND NOT TO RESERVE OFFICERS. SEE BERRY V. UNITED STATES, 123 CT.CL. 520 (1952); REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953); AND ABBOTT, ET AL. V. UNITED STATES, 152 CT.CL. 798 (1961). SOME REGULAR OFFICERS WHO WERE ENTITLED TO AN INCREASE IN RETIRED PAY UNDER THE 1942 PROVISION DELAYED IN MAKING CLAIM THEREFOR AND A PORTION OF THEIR CLAIMS WAS BARRED BY THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940. THE PURPOSE OF THE ACT OF AUGUST 14, 1966, WAS TO WAIVE THE BARRING ACT IN THE CASE OF SUCH AN OFFICER.

THE "CERTAIN OFFICERS" TO WHICH WE REFERRED IN OUR LETTER OF OCTOBER 25, 1966, WERE THOSE OFFICERS OF A REGULAR COMPONENT WHO HAD OTHERWISE VALID CLAIMS FOR INCREASED RETIRED PAY BENEFITS UNDER THE MENTIONED FOURTH PARAGRAPH.

ALTHOUGH YOU INDICATE THAT YOU HAD MILITARY SERVICE BEFORE AND DURING WORLD WAR I AND MEET THE OTHER CONDITIONS OF THE ACT OF APRIL 14, 1966, THE OFFICIAL ARMY REGISTER SHOWS THAT YOU WERE NOT REGULAR OFFICER AND WERE RETIRED ON OCTOBER 31, 1954, UNDER THE PROVISIONS OF 10 U.S.C. 1331- 1337 (FORMERLY TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087). SINCE YOU WERE NOT RETIRED AS A COMMISSIONED OFFICER OF A REGULAR COMPONENT, YOU DID NOT QUALIFY FOR RETIREMENT PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AND CONSEQUENTLY THE ACT OF APRIL 14, 1966, IS INAPPLICABLE TO YOUR SITUATION.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED OCTOBER 25, 1966, IS SUSTAINED.

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