B-123745, APR. 24, 1956

B-123745, APR. 24, 1956

TO MR. CARL. F. ERICKSON:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1956, IN WHICH YOU AGAIN REQUEST RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY AS A RETIRED WARRANT OFFICER OF THE UNITED STATES COAST GUARD FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1954.

THE QUESTION OF YOUR RIGHT TO RECEIVE RETIRED PAY IN AN AMOUNT GREATER THAN THAT PAID YOU, EFFECTIVE FROM OCTOBER 1, 1949, WAS CAREFULLY CONSIDERED IN OUR DECISION DATED AUGUST 11, 1955, B-123745, ADDRESSED TO THE SECRETARY OF THE TREASURY. A COPY OF THAT DECISION WAS FURNISHED YOU WITH OUR LETTER OF OCTOBER 4, 1955. YOU WERE ALSO ADVISED IN THAT LETTER THAT ALL THE ESSENTIAL FACTS CONCERNING YOUR STATUS AS A RETIRED WARRANT OFFICER OF THE COAST GUARD, INCLUDING THE CONTENTS OF THE LETTER OF OCTOBER 25, 1954, ADDRESSED TO YOU BY THE COMMANDANT OF THE UNITED STATES COAST GUARD, WERE DULY CONSIDERED IN CONNECTION WITH THE CONCLUSION REACHED IN THE DECISION OF AUGUST 11, 1955.

YOU AGAIN REFER SPECIFICALLY TO THE COAST GUARD COMMANDANT'S LETTER OF OCTOBER 25, 1954, APPARENTLY WITH THE THOUGHT THAT BY AUTHORITY OF ITS CONTENTS YOU WERE, IN FACT, PLACED IN WARRANT OFFICER PAY GRADE W 2, EFFECTIVE FROM OCTOBER 1, 1949. THE COMMANDANT'S LETTER OF OCTOBER 25, 1954, IS AS FOLLOWS:

"FROM: COMMANDANT

TO: PCLK CARL F. ERICKSON (26141), USCG--- (RETIRED)

7247 RADBOURNE ROAD,

UPPER DARBY, PENNSYLVANIA

SUBJ: RETIRED PAY

1. THE COMMANDANT HAS DETERMINED THAT YOU COMPLETED OVER SIX YEARS CREDITABLE SERVICE AS A WARRANT OFFICER PRIOR TO YOUR RETIREMENT ON 1 NOVEMBER 1941. IN ACCORDANCE WITH REGULATIONS APPROVED BY THE SECRETARY OF THE TREASURY ON 25 OCTOBER 1949, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOU ARE ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER IN PAY GRADE W-2 EFFECTIVE FROM 1 OCTOBER 1949.

(S) A. C. RICHMOND

COMMANDANT, U.S. COAST GUARD"

THE APPLICABLE PROVISIONS OF THE COAST GUARD REGULATIONS WHICH WERE APPROVED OCTOBER 25, 1949, GOVERNING THE WARRANT OFFICER "PAY GRADE" OF RETIRED WARRANT OFFICERS OF THE COAST GUARD EFFECTIVE FROM OCTOBER 1, 1949 PROVIDED: TABLE

"RETIRED WARRANT OFFICERS

"ALL COMMISSIONED WARRANT AND WARRANT OFFICERS NOW ON THE RETIRED LIST OR WHO ARE HEREAFTER RETIRED SHALL BE CARRIED ON THE RETIRED LIST IN THE PAY GRADE IN WHICH SERVING WHEN RETIRED UNLESS ENTITLED TO HIGHER PAY BY SOME OTHER PROVISION OF LAW.'

UNDER THE EXPRESS TERMS OF THOSE REGULATIONS YOU WERE REQUIRED TO BE CARRIED ON THE RETIRED LIST "IN THE PAY GRADE IN WHICH SERVING WHEN RETIRED.' YOUR ATTENTION IS INVITED TO THE FACT THAT THE COMMANDANT'S LETTER OF OCTOBER 25, 1954, DOES NOT PURPORT TO PLACE YOU IN WARRANT OFFICER PAY GRADE W-2 EFFECTIVE OCTOBER 1, 1949. SUCH LETTER MERELY STATES THAT "IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOU ARE ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER IN PAY GRADE W-2 EFFECTIVE FROM 1 OCTOBER 1949.'

THE LEGALITY OF CHARGING COAST GUARD APPROPRIATED FUNDS WITH ADDITIONAL RETIRED PAY IN YOUR CASE ON THE BASIS OF SUCH AN ADMINISTRATIVE DETERMINATION WAS NEGATIVED IN OUR DECISION OF AUGUST 11, 1955, IN WHICH IT WAS HELD THAT YOUR RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, PROPERLY HAS BEEN COMPUTED, UNDER THE PERTINENT PROVISIONS OF LAW AND REGULATIONS ON THE BASIS OF WARRANT OFFICER PAY GRADE W-1. IN OTHER WORDS, IT WAS CONCLUDED THAT SUCH AN ADMINISTRATIVE DETERMINATION OF YOUR "ENTITLEMENT" TO RETIRED PAY COULD HAVE NO FORCE AND EFFECT TO EXTEND TO YOU ANY GREATER RIGHTS, WITH RESPECT TO RETIRED PAY, THAN THE RIGHTS WHICH WERE GRANTED TO YOU, AND ALL OTHER RETIRED COAST GUARD WARRANT OFFICERS IN LIKE CIRCUMSTANCES, BY THE PERTINENT STATUTE AND THE REGULATIONS ISSUED PURSUANT TO THAT STATUTE BY COMPETENT AUTHORITY, THE SECRETARY OF THE TREASURY. AND WHILE THE SECRETARY OF THE TREASURY WAS AUTHORIZED TO ISSUE THOSE REGULATIONS, UPON THEIR ISSUANCE IT BECAME OUR PROVINCE TO DETERMINE THEIR LEGAL EFFECT AS WELL AS THAT OF THE SPECIFIC STATUTORY PROVISIONS UNDER WHICH THEY WERE ISSUED.