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B-114699, NOV. 19, 1964

B-114699 Nov 19, 1964
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DOLAN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10. IN WHICH WE SAID THAT WE WILL FOLLOW THE DECISIONS OF THE COURT OF CLAIMS IN THE CASES OF KRATZ V. IN THOSE DECISIONS THE COURT OF CLAIMS HELD THAT ARMY RESERVE OFFICERS RETIRED FOR DISABILITY AFTER HAVING BEEN SELECTED FOR TEMPORARY PROMOTION WERE ENTITLED TO BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED FOR PROMOTION UNDER THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947. ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL. BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED * * *.'. THAT PROVISION OF LAW WAS CONTAINED IN TITLE V OF THE OFFICER PERSONNEL ACT OF 1947.

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B-114699, NOV. 19, 1964

TO LIEUTENANT OWEN F. DOLAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1964, REQUESTING RECONSIDERATION OF YOUR CLAIM--- DISALLOWED BY SETTLEMENT OF FEBRUARY 17, 1960--- FOR RETIRED PAY COMPUTED ON THE GRADE OF LIEUTENANT (0-3) ON THE BASIS OF OUR DECISION OF JUNE 10, 1963, B 150884, 42 COMP. GEN. 685, IN WHICH WE SAID THAT WE WILL FOLLOW THE DECISIONS OF THE COURT OF CLAIMS IN THE CASES OF KRATZ V. UNITED STATES, 156 CT.CL. 480, AND WILLIS V. UNITED STATES, 156 CT.CL. 485, BOTH DECIDED MARCH 7, 1962.

IN THOSE DECISIONS THE COURT OF CLAIMS HELD THAT ARMY RESERVE OFFICERS RETIRED FOR DISABILITY AFTER HAVING BEEN SELECTED FOR TEMPORARY PROMOTION WERE ENTITLED TO BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED FOR PROMOTION UNDER THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 893, 10 U.S.C. 559 (A) (7) (1952 ED.), WHICH READ IN PERTINENT PART AS FOLLOWS:

"OFFICERS ON A RECOMMENDED LIST FOR PROMOTION TO ANY GRADE UNDER THE PROVISIONS OF THIS TITLE, WHO, AT ANY TIME PRIOR TO PROMOTION, ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL, WHEN RETIRED, BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED * * *.' THAT PROVISION OF LAW WAS CONTAINED IN TITLE V OF THE OFFICER PERSONNEL ACT OF 1947, WHICH WAS APPLICABLE TO THE ARMY. SUBSTANTIALLY IDENTICAL PROVISIONS OF LAW APPLICABLE TO THE NAVY WERE CONTAINED IN TITLE III (SUBSECTION 312 (I) ( OF THE 1947 LAW.

THE ACT OF JUNE 30, 1951, CH. 196, 65 STAT. 108, AUTHORIZED THE PRESIDENT TO SUSPEND THE PROVISIONS OF TITLE III OF THE 1947 ACT RELATING TO PROMOTION BY SELECTION, AND THE PRESIDENT DID SO BY EXECUTIVE ORDER NO. 10266, JUNE 30, 1951. SINCE WE VIEW THE EXECUTIVE ORDER AS EFFECTING THE SUSPENSION OF SECTION 312/I) OF THE 1947 ACT, THERE APPEAR TO BE NO PROVISIONS IN THAT ACT COMPARABLE TO THE ARMY PROVISIONS QUOTED ABOVE, WHICH ARE APPLICABLE IN YOUR CASE AND HENCE THE KRATZ AND WILLIS CASES FURNISH NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 17, 1960, IS SUSTAINED. COMPARE BRANDT V. UNITED STATES, 155 CT.CL. 345 (1961).

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