A-35865, NOV. 25, 1964

A-35865, NOV. 25, 1964

TO MR. ROBERT F. KLEPINGER:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1964, CONCERNING THE REQUEST OF LIEUTENANT FRED B. HANCHETT, USA, RETIRED, FOR CORRECTION OF HIS RECORDS TO SHOW HIS PROMOTION ON NOVEMBER 2, 1921, FROM FIRST LIEUTENANT TO CAPTAIN, U.S. ARMY, AND FOR RETIRED PAY ON THE BASIS OF THE GRADE OF CAPTAIN RATHER THAN THAT RECEIVED IN THE GRADE OF FIRST LIEUTENANT FROM SEPTEMBER 30, 1954, WHICH WAS THE SUBJECT OF OUR LETTER TO HIM OF NOVEMBER 4, 1964, A-35865.

YOU SUGGEST THAT WE ARE MISTAKEN AS TO THE STATUS OF SECTION 507/A) (7) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 893. HOWEVER, WHETHER THAT SECTION HAS BEEN SUPERSEDED OR REPEALED BY SUBSEQUENT LEGISLATION IS IMMATERIAL INSOFAR AS LIEUTENANT HANCHETT'S CASE IS CONCERNED. THE ISSUE IS WHETHER HE GAINED ANY RIGHTS UNDER THAT SECTION. THE OFFICERS INVOLVED IN THE KRATZ AND WILLIS CASES WERE ON ACTIVE DUTY AT THE TIME OF THE ENACTMENT OF THE 1947 LAW. THUS THE COURT HELD THAT THEIR RIGHTS "MATURED" UNDER THAT ACT BY VIRTUE OF THEIR RETIREMENT DURING 1952 AND 1953, RESPECTIVELY, AND THE SUBSEQUENT REPEAL OF SECTION 507/A) (7) IN 1956 HAD NO EFFECT ON THEIR RIGHT TO RECOVER THEREUNDER. LIEUTENANT KUYKENDALL WHOSE CASE WAS THE SUBJECT OF OUR DECISION, B-150884, JUNE 10, 1963, 42 COMP. GEN. 685, RETIRED IN 1951, AND THEREFORE THE RULE OF THE KRATZ AND WILLIS CASES WAS DETERMINED TO BE APPLICABLE IN HIS CASE. THE APPLICABLE PROVISIONS OF THE 1947 ACT APPLIED ONLY TO OFFICERS ON DUTY AT THE TIME OF ITS ENACTMENT AND DID NOT GRANT NEW RIGHTS TO OFFICERS WHOSE RETIRED PAY RIGHTS VESTED AND BECAME FIXED PRIOR TO THE EFFECTIVE DATE OF THE LAW.

LIEUTENANT HANCHETT RETIRED IN 1921. HIS STATUS ON THE RETIRED LIST BECAME FIXED UNDER THE LAWS IN FORCE AT THAT TIME. ACCORDINGLY, WE TRUST YOU WILL UNDERSTAND THAT NO RIGHT ACCRUED TO HIM UNDER PROVISIONS OF THE 1947 ACT CITED ABOVE.