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B-157621, JAN. 6, 1967

B-157621 Jan 06, 1967
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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3. YOU WERE FURNISHED A COMPUTATION OF YOUR PAY ACCOUNT FOR THE PERIOD JUNE 29. IN WHICH ENTITLEMENT TO AN ADJUSTMENT OF RETIRED PAY WAS SHOWN TO BEGIN MARCH 10. IT WAS STATED THAT SINCE YOUR CLAIM FOR AN ADJUSTMENT OF RETIRED PAY WAS NOT FILED UNTIL MARCH 10. IS BARRED BY THE ACT OF OCTOBER 9. 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. HOUSE OF REPRESENTATIVES REPORT NO. 257 ON H.R. 3349 WHICH BECAME P.L. 89-395) SHOWS THAT THE LEGISLATION WAS INTENDED TO COVER CERTAIN OFFICERS.

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B-157621, JAN. 6, 1967

TO MAJOR ROBERT C. ELLIS, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1966, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 21, 1965, WHICH ALLOWED $342.85 AS AN ADJUSTMENT OF RETIRED PAY FOR THE DIFFERENCE BETWEEN RETIRED PAY ENTITLEMENT AND AMOUNT OF VETERANS ADMINISTRATION COMPENSATION PAID TO YOU FOR THE PERIOD JUNE 29, 1948, THROUGH SEPTEMBER 30, 1964.

IN OUR DECISION TO YOU OF DECEMBER 14, 1965, B-157621, YOU WERE FURNISHED A COMPUTATION OF YOUR PAY ACCOUNT FOR THE PERIOD JUNE 29, 1948, TO SEPTEMBER 30, 1964, IN WHICH ENTITLEMENT TO AN ADJUSTMENT OF RETIRED PAY WAS SHOWN TO BEGIN MARCH 10, 1954. IT WAS STATED THAT SINCE YOUR CLAIM FOR AN ADJUSTMENT OF RETIRED PAY WAS NOT FILED UNTIL MARCH 10, 1964, CLAIM FOR UNDERPAYMENTS FOR THE PERIOD PRIOR TO MARCH 10, 1954, IS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, 237.

IN YOUR PRESENT LETTER YOU SAY THAT AS THE STATUTE OF LIMITATIONS HAS BEEN REMOVED, YOU NOW CLAIM ADDITIONAL AMOUNTS DUE PRIOR TO MARCH 10, 1954.

APPARENTLY YOU REFER TO PUBLIC LAW 89-395, APPROVED APRIL 14, 1966, 80 STAT. 120, WHICH PROVIDES AS FOLLOWS:

"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: PROVIDED, THAT A CLAIM FOR SUCH RETIRED PAY SHALL BE FILED WITH THE GENERAL ACCOUNTING OFFICE BY EACH SUCH OFFICER OR BY HIS DESIGNATED BENEFICIARY, WITHIN ONE YEAR FOLLOWING THE DATE OF ENACTMENT OF THIS ACT.'

THE LEGISLATIVE HISTORY OF THE ACT (PAGE 3, HOUSE OF REPRESENTATIVES REPORT NO. 257 ON H.R. 3349 WHICH BECAME P.L. 89-395) SHOWS THAT THE LEGISLATION WAS INTENDED TO COVER CERTAIN OFFICERS, APPROXIMATELY 125 IN NUMBER, AND THAT "A SAMPLING OF THE SERVICE RECORDS OF THE OFFICERS CONCERNED DISCLOSES THAT THEY APPARENTLY SERVED ON ACTIVE DUTY IN SOME CAPACITY BEFORE NOVEMBER 12, 1918, RETIRED PRIOR TO THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 359) WERE RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY RETURNED TO AN INACTIVE STATUS ON THE RETIRED LISTS AFTER JUNE 1, 1942, THE EFFECTIVE DATE OF THE ACT.'

IT APPEARS THAT YOU WERE PLACED ON THE RETIRED LIST BY AN ORDER DATED MARCH 24, 1949, EFFECTIVE JUNE 29, 1948, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 62 STAT. 1087-1091, 10 U.S.C. 1331-1337, WHICH ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIRED PAY FOR MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS. THE RECORD DOES NOT SHOW THAT YOU WERE RETIRED PRIOR TO JUNE 1, 1942, RECALLED TO ACTIVE DUTY AND RETURNED TO THE RETIRED LIST AFTER MAY 31, 1942, AS REQUIRED BY THE ACT OF APRIL 14, 1966. THEREFORE, THE ACT OF APRIL 14, 1966, IS NOT APPLICABLE TO YOUR CLAIM AND DOES NOT HAVE THE EFFECT OF WAIVING THE ACT OF OCTOBER 9, 1940, IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 21, 1965, WAS CORRECT AND IS SUSTAINED.

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