B-144622, JAN. 16, 1961

B-144622, JAN. 16, 1961

TO CHARLES C. LIGHT, CHIEF ELECTRICIAN, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18, 1960, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 1, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY BASED ON PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368.

THE RECORDS SHOW THAT YOU ENLISTED IN THE ARMY ON SEPTEMBER 18, 1918, AND SERVED THEREIN UNTIL DECEMBER 8, 1918; THAT YOU ENLISTED IN THE NAVY ON NOVEMBER 4, 1919, AND WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JANUARY 20, 1936. ON APRIL 1, 1936, YOU WERE RECALLED TO ACTIVE DUTY AND ON JULY 1, 1943, YOU WERE PLACED ON THE ENLISTED RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, BUT REMAINED ON ACTIVE DUTY AT THE TIME. YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED ROLLS ON OCTOBER 16, 1945. ON AUGUST 22, 1946, YOU WERE ADVANCED ON THE RETIRED LIST TO YOUR TEMPORARY GRADE OF CHIEF ELECTRICIAN UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28.

YOU REQUEST THAT YOUR CLAIM BE REVIEWED IN THE LIGHT OF THE COURT OF CLAIMS DECISION IN JAKWAY V. UNITED STATES, CT.CL. NO. 51-58, DECIDED JULY 13, 1959.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, UPON WHICH YOUR CLAIM FOR INCREASED RETIRED PAY IS BASED, PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

IN THE JAKWAY CASE, THE COURT WAS CONCERNED WITH WHETHER OR NOT A WARRANT OFFICER WHO HAD PREVIOUSLY SERVED ON ACTIVE DUTY AS A COLONEL WAS ENTITLED TO HAVE HIS RETURNED PAY COMPUTED UNDER PARAGRAPH 4. JAKWAY, WHO WAS SERVING ON ACTIVE DUTY AS A WARRANT OFFICER AT THE TIME OF HIS RETIREMENT BUT HELD AN APPOINTMENT AS A COLONEL IN THE AIR FORCE RESERVE, SOUGHT TO OBTAIN THE BENEFITS OF PARAGRAPH 4. HE WAS RETIRED UNDER THE PROVISIONS OF SECTION 402 (B) OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817. SECTION 409 OF THAT ACT (63 STAT. 823) PROVIDES THAT:

"A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, OR RATING AS MAY BE AUTHORIZED BY LAW AT TIME OF RETIREMENT.'

IN DECIDING THAT JAKWAY WAS RETIRED AS AN "OFFICER," THE COURT BASED ITS DECISION UPON THE FACT THAT HE WAS NOT RETIRED AS A WARRANT OFFICER AND THEN ADVANCED TO THE RANK OF COLONEL BUT THAT, BY VIRTUE OF THE STATUTORY PROVISIONS APPLICABLE IN HIS CASE, HE WAS PLACED ON THE RETIRED LIST AS A COLONEL. IT FOLLOWS THAT THE QUESTION OF WHETHER RETIRED ENLISTED MEN WHO WERE TEMPORARILY PROMOTED TO COMMISSIONED WARRANT OFFICER GRADES UNDER THE ACT OF JULY 24, 1941, ARE ENTITLED TO CLAIM THE BENEFITS PROVIDED IN PARAGRAPH 4 WAS NOT CONSIDERED IN THE JAKWAY CASE.

COMMISSIONED WARRANT OFFICERS OF THE NAVY ARE NOT OFFICERS WITHIN THE MEANING OF PARAGRAPH 4 OF SECTION 15 OF THE 1942 ACT. COMMISSIONED WARRANT OFFICERS WERE EXPRESSLY EXCLUDED FROM THE OPERATION OF SECTION 12 (E) OF THE ACT OF JUNE 23, 1938, 52 STAT. 950. FOR THE REASON THAT THE PRIMARY PURPOSE IN ENACTING PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WAS TO EQUALIZE THE RETIRED PAY STATUS OF OFFICERS OF THE REGULAR NAVY WITHIN THE SCOPE OF SECTION 12 (E) OF THE THE RETIRED PAY OF OFFICERS OF THE REGULAR ARMY UNDER THE ACT OF JUNE 13, 1918, IT APPEARS THAT THE TERM "OFFICER" AS USED IN PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WAS NOT INTENDED TO INCLUDE COMMISSIONED WARRANT OFFICERS. IN THIS CONNECTION, THE DEFINITION OF THE TERM "OFFICER" CONTAINED IN OTHER STATUTES FOR THE EXPRESS PURPOSE OF THOSE STATUTES MAY NOT BE ACCEPTED AS ENLARGING OR RESTRICTING THE SCOPE OF THAT TERM AS USED IN PARAGRAPH 4 OF SECTION 15 OF THE 1942 LAW.

FOR AN INDIVIDUAL TO BE ENTITLED TO COMPUTE HIS RETIRED PAY UNDER PARAGRAPH 4, HE MUST HAVE BEEN RETIRED AFTER THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942 AS AN "OFFICER.' YOUR ADVANCEMENT TO THE GRADE OF CHIEF ELECTRICIAN AFTER RELEASE FROM ACTIVE DUTY SUBSEQUENT TO YOUR PLACEMENT ON THE RETIRED LIST DID NOT CHANGE YOUR STATUS FROM THAT OF "ENLISTED MAN" TO "OFFICER" SO AS TO ENTITLE YOU TO THE BENEFITS OF PARAGRAPH 4. IN YOUR CASE, THE STATUTES REQUIRED THAT YOU BE RETURNED TO INACTIVE STATUS AS AN ENLISTED MAN AND THEREAFTER BE AWARDED THE HIGHER RANK TO WHICH YOU WERE DETERMINED TO BE ENTITLED FOR RETIRED PAY PURPOSES. SINCE YOU COULD NOT BE RETIRED AS AN "OFFICER" AS REQUIRED BY PARAGRAPH 4 OF SECTION 15 OF THE 1942 LAW, YOU ARE NOT ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED IN ACCORDANCE WITH THAT SECTION.

IN THE RECENT CASE OF RICHARD L. JONES V. UNITED STATES, CT.CL. NO. 300- 56, DECIDED OCTOBER 5, 1960, THE COURT OF CLAIMS CONSIDERED THE CASE OF A RETIRED FORMER MEMBER OF THE FLEET RESERVE WHO SERVED ON ACTIVE DUTY DURING WORLD WAR II AS A TEMPORARY COMMISSIONED OFFICER UNDER THE ACT OF JULY 24, 1941, AND WHO CLAIMED RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE COURT HELD THAT SUCH MEMBER IS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER THAT PROVISION OF LAW FOR THE REASON, AMONG OTHERS, THAT HIS TEMPORARY APPOINTMENT AS AN OFFICER TERMINATED UPON HIS RELEASE FROM ACTIVE DUTY, WHEN HE RESUMED HIS PERMANENT ENLISTED STATUS, AND THAT HE THEREAFTER WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED OFFICER UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED. OTHER WORDS, HE WAS NOT RETIRED AS AN OFFICER, BUT AS AN ENLISTED MAN AND WAS THEREAFTER ADVANCED TO OFFICER GRADE. THE COURT DISTINGUISHED THAT CASE FROM THAT OF COLONEL JAKWAY, WHO IT FOUND WAS RETIRED AS AN OFFICER.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.