B-131700, SEPTEMBER 3, 1959, 39 COMP. GEN. 152

B-131700, SEPTEMBER 3, 1959, 39 COMP. GEN. 152

MILITARY PERSONNEL - RETIRED - RE-RETIREMENT - INACTIVE SERVICE CREDITS THE RE-RETIREMENT CONCEPT AS APPLIED TO RETIRED MEMBERS OF THE UNIFORMED SERVICES BY THE COURT OF CLAIMS IN BAILEY V. UNITED STATES, 134 C.1CLS. 471, TRAVIS V. UNITED STATES, 137 C.1CLS. 148, AND SELIGA V. UNITED STATES, 137 C.1CLS. 710, TO PERMIT ADDITIONAL RETIRED PAY RIGHTS BASED ON INACTIVE TIME ON A RETIRED LIST OR IN THE FLEET RESERVE UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, WILL BE FOLLOWED IN SIMILAR CASES INVOLVING RE-RETIREMENTS BEFORE OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- WHERE THE MEMBERS HAVE ELECTED TO QUALIFY FOR RETIRED PAY UNDER SECTION 411 OF THE 1949 ACT. COMP. GEN. 31, MODIFIED.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 3, 1959:

REFERENCE IS MADE TO OUR DECISION TO YOU DATED JULY 17, 1957, B 131700, 37 COMP. GEN. 31, WHEREIN WE CONSIDERED A SERIES OF QUESTIONS INVOLVING THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES. ANSWERING SUCH QUESTIONS WE CONSIDERED WHETHER WE WOULD FOLLOW THE RULE APPLIED BY THE COURT OF CLAIMS IN THE CASE OF TRAVIS V. UNITED STATES, DECIDED DECEMBER 5, 1956, 137 C.1CLS. 148, TO THE EFFECT THAT A RETIRED MEMBER RELEASED FROM A PERIOD OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT IS "RE-RETIRED" ON THE DATE OF SUCH RELEASE SO AS TO ACQUIRE ADDITIONAL RETIRED PAY RIGHTS UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272. IN THE LIGHT OF DECISIONS WHICH THE COURT OF CLAIMS HAS MADE SINCE JULY 1957, AND OTHER DEVELOPMENTS SINCE THAT TIME, A RECONSIDERATION OF THE POSITION OF THIS OFFICE WITH RESPECT TO THE COURT'S "RE-RETIREMENT" CONCEPT SEEMS INDICATED.

IN THE CASE OF DANIELSON V. UNITED STATES, 121 C.1CLS. 533, THE PLAINTIFF, AN OFFICER WHO HAD MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS RETIRED FOR DISABILITY ON JULY 31, 1935. HE WAS RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER ON JULY 17, 1941, AND RELIEVED FROM SUCH DUTY ON JUNE 30. 1946. THE COURT HELD THAT IN THE COMPUTATION OF HIS RETIRED PAY AFTER THE LATTER DATE, HE WAS ENTITLED TO INCLUDE FOR LONGEVITY CREDIT HIS INACTIVE RETIRED TIME FROM AUGUST 1, 1935, TO JUNE 16, 1941. THIS HOLDING WAS ON THE THEORY THAT HE WAS "RE-RETIRED" ON JUNE 30, 1946, AND THUS WAS AN OFFICER "HEREAFTER RETIRED" WITHIN THE CONTEMPLATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, AND WAS ENTITLED TO 75 PERCENT OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS "RE RETIREMENT," WHICH PAY INCLUDED LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST. THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 37 U.S.C. 231 NOTE, PROVIDING INCREASED RATES OF ACTIVE-DUTY PAY EFFECTIVE OCTOBER 1, 1949, DID NOT ENTER INTO THE CONSIDERATION OF THE DANIELSON CASE.

IN BAILEY V. UNITED STATES, 134 C.1CLS. 471, AND TRAVIS V. UNITED STATES, 137 C.1CLS. 148, THE COURT BROADENED THE DANIELSON CONCEPT TO INCLUDE, IN CASES OF RETIREMENT FOR DISABILITY AND SUBSEQUENT ACTIVE DUTY, BOTH PRIOR TO OCTOBER 1, 1949, ENTITLEMENT TO LONGEVITY CREDIT FOR INACTIVE RETIRED TIME IN COMPUTATIONS OF RETIRED PAY ON AND AFTER OCTOBER 1, 1949, ON THE ACTIVE-DUTY PAY RATES PRESCRIBED IN THE CAREER COMPENSATION ACT, THE PLAINTIFF IN EACH CASE HAVING ELECTED TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD (A), SECTION 411 OF THAT ACT. IN SELIGA V. UNITED STATES, 137 C.1CLS. 710, THE DANIELSON CONCEPT WAS FURTHER EXTENDED SO AS TO INCLUDE CREDIT FOR INACTIVE TIME IN THE FLEET RESERVE IN ESTABLISHING THE ACTIVE-DUTY PAY FACTOR UNDER A SECTION 411 (A) ELECTION TO RECEIVE DISABILITY RETIRED PAY UNDER THE CAREER COMPENSATION ACT.

IN OUR DECISION TO YOU, DATED JULY 17, 1957, IN ANSWER TO QUESTION 1 (A), WE STATED THAT WE WERE FOLLOWING THE DANIELSON CASE BUT WERE NOT FOLLOWING THE TRAVIS CASE. ON JUNE 3, 1959, IN PHELAN V. UNITED STATES, C.1CLS. NO. 50-57, AND IN EIGHT OTHER CASES DECIDED THE SAME DAY, THE COURT OF CLAIMS AFFIRMED ITS HOLDINGS IN THE BAILEY, TRAVIS AND SELIGA CASES.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE DECISIONS OF THE COURT OF CLAIMS IN THE NINE CASES REFERRED TO IN THE ABOVE PARAGRAPH. IN VIEW OF THIS INFORMATION, AND IN THE LIGHT OF PRESENT CIRCUMSTANCES, WE HAVE DECIDED TO FOLLOW THE COURT'S HOLDINGS IN THE BAILEY, SELIGA, TRAVIS AND PHELAN CASES AS PRECEDENTS IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF PAYMENTS IN SIMILAR CASES INVOLVING ,RE-RETIREMENTS" BEFORE OCTOBER 1, 1949. AS TO THE EFFECT TO BE ACCORDED A "RE-RETIREMENT" AFTER THAT DATE, THAT MATTER IS NOW PENDING BEFORE THE COURT OF CLAIMS IN THE CASE OF WHELAN V. UNITED STATES, C.1CLS. NO. 469-57. ..END :