B-106308, JUN. 7, 1957

B-106308, JUN. 7, 1957

TO MR. ROBERT F. KLEPINGER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1957, IN EFFECT, REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED OCTOBER 2, 1952, WHICH DISALLOWED THE CLAIM OF LIEUTENANT COLONEL MORRIS J. HERBERT, U.S. ARMY, RETIRED, WHOM YOU REPRESENT, FOR INCREASED RETIRED PAY ON AND AFTER OCTOBER 1, 1949, BASED ON TIME SERVED IN AN INACTIVE STATUS ON THE RETIRED LIST.

COLONEL HERBERT'S INACTIVE TIME ON THE RETIRED LIST WAS COUNTED ON COMPUTING THE ADDITIONAL RETIRED PAY ALLOWED FOR THE PERIOD MARCH 27, 1944, TO SEPTEMBER 30, 1949, BUT WAS EXCLUDED AFTER THAT DATE--- DUE TO HIS ELECTION OF METHOD (A) UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823--- FOR THE REASON THAT SECTION 202 (B) OF THAT ACT EXPRESSLY PROHIBITS CREDIT FOR SERVICE WHILE ON THE RETIRED LIST TO INCREASE RETIRED PAY.

THE FACTS IN THIS CASE ARE SIMILAR TO THOSE INVOLVED IN THE CASE OF BAILEY V. UNITED STATES, 134 C.CLS. 471, AND THE CONCLUSION REACHED IN THAT CASE SUPPORTS COLONEL HERBERT'S CLAIM. THE COURT THERE STATED THAT THE LANGUAGE OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT "WHICH ALLOWS HIM TO USE A FACTOR "AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE OR RATING HELD BY HIM AT THE TIME" OF HIS SECOND RETIREMENT, WOULD SEEM TO REFER TO THE ACTUAL PAY HE WAS RECEIVING, WHICH PAY IN FACT INCLUDED A LONGEVITY ELEMENT BASED IN PART ON HIS YEARS OF RETIRED SERVICE.' HOWEVER, THERE IS NOTHING IN THE LANGUAGE RELIED ON BY THE COURT WHICH REFERS IN ANY WAY TO A SECOND RETIREMENT. THAT IS A CONCEPT OF THE COURT, NOT THE CONGRESS. THE BENEFIT WHICH THE PLAINTIFF SOUGHT, THAT OF COUNTING INACTIVE SERVICE ON THE RETIRED LIST TO INCREASE HIS RETIRED PAY, IS EXPRESSLY BARRED BY SECTION 202 (B) "EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.' THE LANGUAGE ON WHICH THE COURT RELIED IS NOT EVEN ADDRESSED TO THE SITUATION OF PERSONS WHO ARE RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND THE COURT ASSIGNED NO REASON WHY SUCH LANGUAGE SHOULD BE INTERPRETED IN A MANNER WHICH IS ENTIRELY FOREIGN TO THE NORMAL IMPORT OF THE WORDS USED. THE SITUATION WITH WHICH THE COURT DEALT, VIZ., THAT OF RECALL TO ACTIVE DUTY AFTER RETIREMENT AND SUBSEQUENT RELEASE TO INACTIVE DUTY ON THE RETIRED LIST, IS COVERED IN EXPRESS TERMS BY THE LAST PROVISO OF SECTION 402 (D). A PERSON WHO MEETS THE CONDITIONS THERE PRESCRIBED IS PERMITTED TO ELECT TO HAVE HIS RETIRED PAY RECOMPUTED ON "RETURN TO A RETIRED STATUS" ON THE BASIS OF THE ,HIGHEST PERCENTAGES AND BASIC PAY WHICH HE ATTAINED WHILE SERVING ON SUCH ACTIVE DUTY," WHICH PAY INCLUDES CREDIT FOR TIME IN AN INACTIVE STATUS ON THE RETIRED LIST. IT IS BELIEVED THAT THIS IS THE EXCEPTION REFERRED TO IN SECTION 202 (B) OF THE 1949 ACT. IF ALL MEMBERS RETIRED FOR PHYSICAL DISABILITY MAY COUNT TIME IN AN INACTIVE STATUS ON THE RETIRED LIST TO INCREASE THEIR RETIRED PAY AFTER A TOUR OF ACTIVE DUTY, THERE WAS NO NEED TO GRANT THIS BENEFIT TO THE SPECIAL GROUP COVERED BY THE LAST PROVISO.

THE COURT CONSIDERED THE LAST PROVISION OF SECTION 402 (D) IN ITS FIRST OPINION IN THE SIMILAR CASE OF TRAVIS V. UNITED STATES, C.CLS. NO. 5-53, RENDERED MARCH 6, 1956, ON THE SAME DAY AS THE OPINION IN THE BAILEY CASE, AND HELD SUCH PROVISION TO BE PROSPECTIVE IN SCOPE. IN ITS SECOND OPINION RENDERED DECEMBER 5, 1956, GRANTING A NEW TRIAL AND ENTERING JUDGMENT IN THE PLAINTIFF'S FAVOR, THE COURT DID NOT MENTION THE LAST PROVISO BUT RELIED ON THE BAILEY CASE AND AGAIN OVERLOOKED THE FACT THAT THE LANGUAGE WHICH PERMITS COMPUTATION OF RETIRED PAY ON THE BASIS OF THE "MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER," DOES NOT COVER THE SITUATION OF A RETIRED MEMBER WHO IS RECALLED TO ACTIVE DUTY, AS DOES THE LAST PROVISO OF THAT SECTION.

THERE ARE A NUMBER OF OTHER SIMILAR CASES WHICH ARE NOW PENDING BEFORE THE COURT OF CLAIMS IN WHICH THE GOVERNMENT MAY FURTHER ARGUE THE MATTERS MENTIONED ABOVE. PENDING FURTHER CLARIFICATION OF THE COURT'S VIEWS IN ONE OR MORE OF THOSE CASES, NO CLAIMS WILL BE ALLOWED HERE ON THE BASIS OF THE BAILEY AND TRAVIS CASES.