B-98978, NOV. 8, 1962

B-98978, NOV. 8, 1962

TO MR. GEORGE EDWARD DOYLE, CWO, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1962, FURTHER CONCERNING THE SETTLEMENT OF THIS OFFICE DATED JUNE 13, 1960, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF COMMISSIONED WARRANT OFFICER, UNITED STATES NAVY, BELIEVED DUE YOU UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368. YOU WERE ADVISED IN THAT SETTLEMENT THAT SINCE YOU WERE RETIRED AS AN ENLISTED MAN THE CITED PROVISIONS OF LAW ARE INAPPLICABLE.

THE MATTER WAS REVIEWED UPON YOUR REQUEST AND IN OUR DECISION TO YOU DATED AUGUST 14, 1962, B-98978, THE ACTION TAKEN IN THE SETTLEMENT OF JUNE 13, 1960, WAS SUSTAINED UNDER THE RULE OF JONES V. UNITED STATES, 282 F.2D 906 (1960).

THE RECORD SHOWS THAT UPON COMPLETION OF SEVERAL ENLISTMENTS IN THE UNITED STATES NAVY YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON NOVEMBER 10, 1930. YOU WERE RECALLED TO ACTIVE DUTY AS AN ENLISTED MEMBER OF THE FLEET RESERVE ON JULY 24, 1940, AND YOU RECEIVED A TEMPORARY APPOINTMENT TO THE GRADE OF COMMISSIONED WARRANT OFFICER (CHIEF BOATSWAIN), AS PROVIDED IN THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603. FOLLOWING YOUR RELEASE FROM ACTIVE DUTY IN FEBRUARY 1946, YOU WERE PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE MARCH 1, 1946, IN YOUR ENLISTED STATUS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1179, AND PURSUANT TO THE SECRETARY'S DETERMINATION OF SATISFACTORY SERVICE IN THE TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER UNDER AUTHORITY OF THE 1941 ACT AS AMENDED FEBRUARY 21, 1946, 60 STAT. 28 (CH. 34), YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF CHIEF BOATSWAIN, EFFECTIVE FROM MARCH 1, 1946.

YOU CONTEND THAT IN ACCORDANCE WITH THE NAVAL RESERVE ACT OF 1938 YOU SHOULD HAVE BEEN RETIRED IN 1944, UPON THE COMPLETION OF 30 YEARS' SERVICE. APPARENTLY, YOU FEEL THAT IF YOU HAD BEEN RETIRED IN 1944 YOU WOULD HAVE BEEN RETIRED IN THE GRADE OF COMMISSIONED WARRANT OFFICER, THE TEMPORARY GRADE IN WHICH YOU WERE THEN SERVING ON ACTIVE DUTY. IN THAT CONNECTION YOU ARE ADVISED THERE WAS NO STATUTORY AUTHORITY TO RETIRE YOU IN THE TEMPORARY COMMISSIONED WARRANT OFFICER GRADE IN WHICH YOU WERE SERVING IN 1944 IN THE ABSENCE OF A PHYSICAL DISABILITY INCURRED AS PROVIDED IN SECTION 8 (A) OF THE 1941 LAW, 55 STAT. 604. THUS, UNDER THE APPLICABLE PROVISIONS OF LAW, IF THE SECRETARY OF THE NAVY HAD PLACED YOUR NAME ON THE RETIRED LIST IN 1944, UPON COMPLETION OF 30 YEARS' SERVICE, YOU WOULD HAVE BEEN RETIRED AS AN ENLISTED MEMBER OF THE NAVY, AND, CONSEQUENTLY SUCH ACTION WOULD NOT HAVE ALTERED THE SITUATION INSOFAR AS YOUR RETIRED PAY STATUS IS CONCERNED. SEE SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28. SUCH AN EARLIER DATE OF RETIREMENT IN YOUR CASE WOULD HAVE ENTITLED YOU TO THE SAME RETIRED PAY YOU ARE NOW RECEIVING AND WOULD NOT HAVE QUALIFIED YOU FOR THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

YOU REFER TO THE CASE OF BETTS V. UNITED STATES, 145 CT.CL. 530, 172 FED.SUP. 450 (1959), IN REGARD TO CAPRICIOUS ACTION BY A PUBLIC OFFICER. WE SEE NOTHING CAPRICIOUS IN THE ACTION TAKEN BY THE SECRETARY OF THE NAVY IN YOUR CASE.

THE ACTION TAKEN IN THE SETTLEMENT OF JUNE 13, 1960, AND THE CONCLUSION REACHED IN OUR DECISION TO YOU DATED AUGUST 14, 1962, B 98978, ARE AFFIRMED.