B-143155, JUL. 17, 1961
Highlights
TO EMERY AND WOOD: REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. JUDGMENT WAS ENTERED IN THE COURT OF CLAIMS IN FAVOR OF COLONEL SKINNERON MARCH 31. AS THAT WHICH HE IS NOW CLAIMING FOR THE EARLIER PERIOD. THE JUDGMENT WAS ENTERED SOLELY ON THE BASIS OF THE DEFENDANT'S ADMISSION OF LIABILITY WITH NO JUDICIAL DETERMINATION OF THE POINTS IN ISSUE. WAS RETIRED EFFECTIVE JANUARY 31. HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF COLONEL AS PROVIDED BY SECTION 203 (A) OF THE ACT OF JUNE 29. HE CLAIMS AN INCREASE IN RETIRED PAY BECAUSE OF INACTIVE TIME ON THE RETIRED LIST BETWEEN THE DATE OF HIS ORIGINAL RETIREMENT AND THE DATE HE WAS CALLED TO ACTIVE DUTY. IT WAS POINTED OUT IN OUR DECISION OF NOVEMBER 5.
B-143155, JUL. 17, 1961
TO EMERY AND WOOD:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1961, REQUESTING RECONSIDERATION OF THE CLAIM FILED BY YOU ON BEHALF OF COLONEL LESLIE A. SKINNER, USAF, RETIRED, FOR ADJUSTMENT IN RETIRED PAY FOR THE PERIOD JUNE 1, 1951, TO APRIL 30, 1954, BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 358.
JUDGMENT WAS ENTERED IN THE COURT OF CLAIMS IN FAVOR OF COLONEL SKINNERON MARCH 31, 1961, ALLOWING HIM THE SAME ADJUSTMENT IN RETIRED PAY FOR THE PERIOD MAY 1, 1954, TO JANUARY 31, 1961, AS THAT WHICH HE IS NOW CLAIMING FOR THE EARLIER PERIOD. THE JUDGMENT WAS ENTERED SOLELY ON THE BASIS OF THE DEFENDANT'S ADMISSION OF LIABILITY WITH NO JUDICIAL DETERMINATION OF THE POINTS IN ISSUE.
THE OFFICIAL RECORDS SHOW THAT COLONEL SKINNER, WHO HAD SERVED IN THE ARMY DURING WORLD WAR I, WAS RETIRED EFFECTIVE JANUARY 31, 1948, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 13, 1940, 54 STAT. 380, UPON HIS OWN APPLICATION AFTER COMPLETION OF MORE THAN 20 YEARS OF ACTIVE SERVICE. HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF COLONEL AS PROVIDED BY SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1085, AND THEREAFTER SERVED ON ACTIVE DUTY FROM JUNE 1, 1949, TO MAY 31, 1951. HE CLAIMS AN INCREASE IN RETIRED PAY BECAUSE OF INACTIVE TIME ON THE RETIRED LIST BETWEEN THE DATE OF HIS ORIGINAL RETIREMENT AND THE DATE HE WAS CALLED TO ACTIVE DUTY.
IT WAS POINTED OUT IN OUR DECISION OF NOVEMBER 5, 1958, 38 COMP. GEN. 348, THAT THE COURT OF CLAIMS HAD NOT PASSED UPON THE QUESTION OF THE APPLICABILITY OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832 (RELATING TO INCREASE IN RETIRED PAY FOR ACTIVE DUTY AFTER RETIREMENT) TO RETIRED WORLD WAR I OFFICERS WHO SERVED ON ACTIVE DUTY AFTER SEPTEMBER 30, 1949, AND WHO WERE "RE-RETIRED" AFTER THAT DATE. COMPARE JUDGMENTS OBTAINED IN THE COURT OF CLAIMS BASED ON THE DEFENDANT'S ADMISSIONS OF LIABILITY IN THE CASES OF WHELAN V. UNITED STATED, CT.CL.NO. 469-57, HARANT V. UNITED STATES, CT.CL.NO. 375-59, AND VESTAL V. UNITED STATES, CT.CL.NO. 494-59, EACH OF WHICH INVOLVED PHYSICAL DISABILITY RETIREMENT WITH "RE-RETIREMENT" AFTER SEPTEMBER 30, 1949. SEE 40 COMP. GEN. 319. COLONEL SKINNER WAS RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY AND COMPUTATION OF HIS RETIRED PAY UPON RELEASE OR "RE- RETIREMENT" IN 1951 WAS GOVERNED BY THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT (NOW 10 U.S.C. 1402). ALSO, SEE SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B). COMPARE JONES V. UNITED STATES, CT.CL.NO. 43 59, DECIDED MARCH 1, 1961.
THERE IS NOW PENDING IN THE COURT OF CLAIMS THE CASE OF GEORGE L. MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, INVOLVING SIMILAR FACTS AND THE SAME QUESTIONS OF LAW AS THOSE INVOLVED IN COLONEL SKINNER'S CASE. HENCE, UNTIL THERE HAS BEEN A JUDICIAL DETERMINATION OF THOSE QUESTIONS, WE WILL NOT AUTHORIZE PAYMENT TO COLONEL SKINNER OF THE ADJUSTMENT IN RETIRED PAY NOW CLAIMED FOR ANY PERIOD OTHER THAN THAT COVERED BY THE JUDGMENT.