B-110008, JUL. 2, 1959

B-110008, JUL. 2, 1959

TO MR. FRANZ O. WILLENBUCHER:

IN LETTER OF APRIL 9, 1959, YOU, AS ATTORNEY FOR LIEUTENANT COMMANDER DANIEL E. WHELAN, JR., UNITED STATES COAST AND GEODETIC SURVEY, RETIRED, REQUEST RECONSIDERATION OF THE ACTION TAKEN IN OUR SETTLEMENT DATED MARCH 26, 1959, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY BELIEVED DUE HIM SINCE JULY 1, 1953, THE EFFECTIVE DATE OF HIS REVERSION TO INACTIVE STATUS ON THE RETIRED LIST.

THE SUBJECT OFFICER SERVED ON ACTIVE DUTY IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND IN THE COAST AND GEODETIC SURVEY FROM JUNE 27, 1921, TO JULY 2, 1926, THE DATE OF HIS RETIREMENT FOR PHYSICAL DISABILITY. HE WAS RECALLED TO ACTIVE DUTY IN THE COAST AND GEODETIC SURVEY ON AUGUST 16, 1943, AND THEREAFTER RELEASED TO AN INACTIVE STATUS ON THE RETIRED LIST EFFECTIVE JULY 1, 1953. IT APPEARS THAT PURSUANT TO HIS ELECTION MADE UNDER AUTHORITY OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF TITLE IV OF THAT ACT, HE HAS RECEIVED DISABILITY RETIRED PAY EFFECTIVE FROM JULY 1, 1953, COMPUTED AS PROVIDED IN SECTION 402 (D), 63 STAT. 818, AT THE RATE OF 60 PERCENT (REPRESENTING THE PERCENTAGE OF HIS DISABILITY) OF THE MONTHLY BASIC PAY OF A LIEUTENANT COMMANDER WITH OVER 18, BUT NOT OVER 22, CUMULATIVE YEARS OF SERVICE, REFLECTING ALL CREDITABLE SERVICE AS OF JULY 2, 1926, THE DATE OF HIS RETIREMENT, PLUS ALL HIS SUBSEQUENT ACTIVE SERVICE TO JUNE 30, 1953.

IT IS ALLEGED BOTH IN THE PETITION NO. 469-57, NOW PENDING BEFORE THE COURT OF CLAIMS (A MOTION TO DISMISS THE PETITION IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE) AND IN THE CLAIM PRESENTED TO THIS OFFICE, THAT BY REASON OF HAVING SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, THE PLAINTIFF IS ENTITLED UNDER AUTHORITY OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115 (1946 EDITION), TO COMPUTE HIS RETIRED PAY EFFECTIVE FROM JULY 1, 1953, AT THE RATE OF 75 PERCENT OF THE MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, FOR AN OFFICER OF HIS GRADE WITH OVER 30 CUMULATIVE YEARS OF SERVICE. THE CLAIM PRESENTED TO THIS OFFICE WAS DISALLOWED IN THE SETTLEMENT OF MARCH 26, 1959, FOR THE REASON THAT UPON HIS RELEASE FROM ACTIVE DUTY AND REVERSION TO INACTIVE-DUTY STATUS ON THE RETIRED LIST EFFECTIVE JULY 1, 1953, THE PLAINTIFF'S RETIRED PAY STATUS CAME SQUARELY WITHIN THE SCOPE OF SECTIONS 411, 402 (D), AND 516 OF THE CAREER COMPENSATION ACT OF 1949.

IT IS YOUR CONTENTION THAT SINCE THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW WERE NOT REPEALED UPON ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, THE BENEFITS RESULTING FROM THE "RE- RETIREMENT" CONCEPT WHICH HAS BEEN ADOPTED BY THE COURT OF CLAIMS IN CONSTRUING THESE STATUTORY PROVISIONS ACCRUE TO AN OFFICER PREVIOUSLY RETIRED INCIDENT TO A RELEASE FROM ACTIVE DUTY ON OR AFTER OCTOBER 1, 1949, AS WELL AS INCIDENT TO A RELEASE FROM ACTIVE DUTY BEFORE OCTOBER 1, 1949. HOWEVER, THE COURT OF CLAIMS HAS NOT YET PASSED UPON THE APPLICABILITY OF THE PROVISIONS OF SECTION 516 OF THE 1949 LAW TO PREVIOUSLY RETIRED OFFICERS WHO SERVED IN THE MILITARY AND NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, UPON THEIR RELEASE FROM ACTIVE DUTY AND REVERSION TO INACTIVE DUTY STATUS ON THE RETIRED LIST ON OR AFTER OCTOBER 1, 1949. IN VIEW OF THE FACT THAT THE "RE-RETIREMENT" CONCEPT WHICH THE COURT OF CLAIMS HAS APPLIED TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW WITH RESPECT TO THE PERIOD PRECEDING OCTOBER 1, 1949, IS WITHOUT OTHER LEGAL PRECEDENT, THIS OFFICE PROPERLY MAY NOT EXTEND THE AREA OF OPERATION NOW BEING ACCORDED TO THESE STATUTORY PROVISIONS UNDER THE RULE ESTABLISHED BY THE COURT IN THE DANIELSON, GORDON, FIELD AND SHERFEY CASES AS TO ANY PART OF THE PERIOD BEGINNING OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949.

IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE FACT THAT AT THE TIME THE CAREER COMPENSATION ACT OF 1949 WAS ENACTED INTO LAW, THE CONCEPT THAT THE WORDS "HEREAFTER RETIRED" (CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT) INCLUDED SITUATIONS WERE PREVIOUSLY RETIRED OFFICERS REVERTED TO A RETIRED STATUS AFTER A TOUR OF ACTIVE DUTY, WAS UNKNOWN TO THE LAW. IN RETAINING THAT PARAGRAPH (SEE SECTION 531 (B) (34) OF THE CAREER COMPENSATION ACT) WHILE AT THE SAME TIME ENACTING DETAILED PROVISIONS IN SECTION 516 OF THAT ACT CONCERNING THE METHOD OF COMPUTING INCREASES IN RETIRED PAY WHICH WERE TO RESULT FROM ACTIVE DUTY PERFORMED AFTER RETIREMENT, IT IS DIFFICULT TO IMPUTE TO THE CONGRESS AN INTENT TO GIVE THE WORDS "HEREAFTER RETIRED" A MEANING OTHER THAN IS CONVEYED IN THEIR NORMAL USE AND UNDERSTANDING--- AN ORIGINAL RETIREMENT, AS DISTINGUISHED FROM A THEN UNKNOWN "RE-RETIREMENT"--- AND THUS AS PROVIDING TWO DIFFERENT METHODS OF COMPUTING INCREASES IN RETIRED PAY FOLLOWING COMPLETION OF A TOUR OF ACTIVE DUTY TERMINATING ON OR AFTER OCTOBER 1, 1949. WHILE THE COURT HAS SINCE INTERPRETED THE QUOTED WORDS AS INCLUDING A "RE RETIREMENT," ITS DECISIONS TO THAT EFFECT HAVE ALL RELATED TO ,RE RETIREMENTS" PRIOR TO OCTOBER 1, 1949. IN ENACTING SECTION 516 OF THE 1949 ACT, THE CONGRESS FIXED A LEGISLATIVE POLICY AND PRESCRIBED A METHOD OF COMPUTING RETIRED PAY APPLICABLE TO RETIRED PERSONNEL OF THE UNIFORMED SERVICES WHO WERE RECALLED TO ACTIVE DUTY AND WHO REVERTED TO AN INACTIVE STATUS UPON RELEASE FROM ACTIVE DUTY ON OR AFTER OCTOBER 1, 1949. WHILE IT MAY BE THAT THE COURT OF CLAIMS WILL HOLD THAT SUCH GENERAL POLICY IS NOT APPLICABLE IN A CASE SUCH AS THE PRESENT ONE, THE MATTER IS SUFFICIENTLY DOUBTFUL AS TO WARRANT OUR LEAVING THIS QUESTION TO THE COURT FOR DECISION.

ACCORDINGLY, IN THE ABSENCE OF A COURT DECISION ON THE POINT HERE INVOLVED, IT IS OUR VIEW THAT THE RIGHT TO INCREASED RETIRED PAY IN SUCH A CASE IS FOR DETERMINATION EXCLUSIVELY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 516, OR WHERE APPLICABLE, IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 411 AND 402 (D) OF THE 1949 LAW.