B-160459, FEB. 17, 1967

B-160459, FEB. 17, 1967

TO MR. BENJAMIN G. OBERLIN:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 11, 1967, CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY BY VIRTUE OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120, H.R. 3349.

IN OUR DECISION OF JANUARY 9, 1967, YOU WERE ADVISED THAT THE PURPOSE OF THE ACT OF APRIL 14, 1966, WAS TO WAIVE THE APPLICATION OF THE BARRING ACT (ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237), FOR A LIMITED GROUP OF RETIRED OFFICERS IN ORDER TO PERMIT THEM TO FILE CLAIMS FOR CERTAIN RETIREMENT BENEFITS WHICH WERE OTHERWISE BARRED BY THE 10-YEAR STATUTE OF LIMITATIONS. THE BENEFITS INVOLVED WERE "RE-RETIREMENT" BENEFITS WHICH WERE PAYABLE UNDER THE CASE OF GORDON V. UNITED STATES, 134 CT.CL. 840 (1956). IN THAT CASE, THE COURT HELD THAT THE LANGUAGE CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, AUTHORIZING PAYMENT OF RETIRED PAY AT THE RATE OF 75 PERCENTUM OF ACTIVE DUTY PAY TO WORLD WAR I OFFICERS "HEREAFTER RETIRED" APPLIED WITH EQUAL FORCE TO SUCH OFFICERS WHO HAD BEEN RETIRED BEFORE ENACTMENT OF THAT ACT BUT WHO LATER WERE RECALLED TO ACTIVE DUTY AND WERE RELEASED AFTER MAY 31, 1942.

THE COURT VIEWED SUCH RELEASE TO INACTIVE DUTY AND REVERSION TO A RETIRED STATUS AS A ,RE-RETIREMENT" THUS PERMITTING AN INCREASE IN THE RETIRED PAY FORMERLY RECEIVED, BY COMPUTING SUCH PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY BEING RECEIVED AT THE TIME OF ,RE RETIREMENT.' SUCH ACTIVE DUTY PAY INCLUDED CREDIT FOR LONGEVITY PURPOSES OF ALL TIME ON THE RETIRED LIST BETWEEN THE ORIGINAL RETIREMENT AND RECALL TO ACTIVE DUTY.

A NUMBER OF OFFICERS WHO FILED CLAIM FOR "RE-RETIREMENT" BENEFITS AFTER THE GORDON AND OTHER SIMILAR CASES HAD BEEN DECIDED, FOUND THAT THEIR CLAIMS, IN PART, WERE BARRED BY THE 1940 ACT. PUBLIC LAW 89-395 WAS ENACTED FOR THE SOLE PURPOSE OF PERMITTING PAYMENT OF THESE BARRED CLAIMS. WHILE YOU APPEAR TO BELIEVE THAT YOU "WERE RETIRED BEFORE JUNE 1942," YOUR ATTENTION IS INVITED TO THE FACT THAT YOU HAD INSUFFICIENT SERVICE TO QUALITY FOR RETIREMENT UNDER ANY LAW WHICH WAS IN EFFECT IN 1942. YOU STATE THAT YOU WERE DISCHARGED FROM THE SERVICE IN MAY 1919; THAT YOUR LATER COMMISSION IN THE OFFICERS RESERVE CORPS TERMINATED IN APRIL 1934; AND THAT YOU RESIGNED FROM THE NATIONAL GUARD IN 1936. YOU WERE NOT RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER IN 1942, YOUR STATUS AT THAT TIME BEING THAT OF A FORMER OFFICER. YOU WERE FIRST RETIRED IN 1954.

OUR STATEMENT REGARDING THE DATE OF YOUR RETIREMENT WAS BASED UPON THE OFFICIAL ARMY REGISTER, VOLUME II, PAGE 283, 1966 ED., WHICH LISTS YOU AS HAVING BEEN RETIRED ON OCTOBER 31, 1954, UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 (FORMERLY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087-1091). THE 1955 EDITION OF THE ARMY REGISTER LISTED YOU AS HAVING BEEN RETIRED ON DECEMBER 31, 1954. THE DOCUMENTS WHICH YOU FORWARDED TO THIS OFFICE, RETURNED HEREWITH, INDICATE THAT THE ENTRY IN THE 1966 EDITION IS A TYPOGRAPHICAL ERROR. SUCH ERROR APPEARS TO HAVE OCCURRED WHEN THE 1962 EDITION WAS ISSUED. IT IS SUGGESTED THAT YOU COMMUNICATE DIRECTLY WITH THE DEPARTMENT OF THE ARMY FOR THE CORRECTION OF THIS ERROR. HOWEVER, SUCH ERROR DOES NOT AFFECT YOUR CLAIM IN ANY WAY.

CONCERNING YOUR RIGHT TO HAVE YOUR RETIRED PAY COMPUTED UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT WITHOUT REGARD TO THE RE- RETIREMENT THEORY, YOU ARE ADVISED THAT A LARGE NUMBER OF PERSONS WHO, LIKE YOU, WERE RECEIVING RETIRED PAY UNDER THE 1948 ACT, FILED SUIT FOR SUCH BENEFIT IN THE CASE OF ABBOTT ET AL. V. UNITED STATES, 152 CT.CL. 798 (1961). BASING ITS DECISION MAINLY ON THE EARLIER CASES OF BERRY V. UNITED STATES, 123 CT.CL. 530 (1952), AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953), THE COURT HELD THAT THE 1942 ACT APPLIED ONLY TO COMMISSIONED OFFICERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES. ALSO, IT MAY BE STATED THAT THERE IS NO INDICATION THAT IN ENACTING THE 1942 ACT THE CONGRESS INTENDED THAT ITS BENEFITS SHOULD ACCRUE TO A GROUP OF OFFICERS WHO, LIKE YOU, COULD NOT QUALIFY FOR RETIRED PAY UNDER ANY LAW IN EFFECT AT THAT TIME. SECTION 15 OF THE 1942 ACT WAS NOT A RETIREMENT LAW. IT MERELY CONTAINED PROVISIONS RELATING TO THE COMPUTATION OF RETIRED PAY TO MEMBERS WHO WERE ENTITLED TO RETIRED PAY UNDER SOME OTHER PROVISION OF LAW. NO OTHER LAW WAS APPLICABLE IN YOUR CASE.

UNTIL PASSAGE OF THE 1948 LAW, NONE OF THE MANY PERSONS IN YOUR PARTICULAR SITUATION WERE ELIGIBLE TO RECEIVE RETIREMENT BENEFITS. IT WAS FOR THIS REASON, AMONG OTHERS, THAT THE 1948 LAW WAS ENACTED. ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIRED PAY, BASED ON LENGTH OF SERVICE TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS AT A SPECIFIED AGE WHO HAD CERTAIN MINIMUM SERVICE AND WHO THERETOFORE WERE INELIGIBLE FOR RETIREMENT FOR LENGTH OF SERVICE UNDER PRIOR RETIREMENT LAWS. YOU APPARENTLY BECAME ENTITLED TO RETIRED PAY UNDER TITLE III OF THAT LAW IN 1954, UPON REACHING AGE 60 AND OTHERWISE SATISFYING THE REQUIREMENTS OF THE LAW, ONE OF WHICH BEING THAT YOU WERE NOT ENTITLED UNDER ANY OTHER PROVISION OF LAW TO RETIRED PAY FROM AN ARMED FORCE.

INSOFAR AS THE RETIREMENT PAY BENEFITS YOU ARE RECEIVING ARE CONCERNED, WE FIND NOTHING TO INDICATE THAT YOU ARE BEING PAID LESS THAN AUTHORIZED BY THE 1948 LAW UNDER WHICH YOU WERE RETIRED.