B-110008, FEB. 7, 1962

B-110008, FEB. 7, 1962

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF AUGUST 3, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING THAT WE ADVISE WHETHER OUR DECISION OF DECEMBER 2, 1960, B-110008 (40 COMP. GEN. 319) IN THE CASE OF LIEUTENANT COMMANDER DANIEL E. WHELAN, JR., RETIRED, U.S. COAST AND GEODETIC SURVEY, IS FOR APPLICATION IN OTHER LIKE CASES. A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES COMMITTEE ACTION NO. 286 DISCUSSING THE MATTER WAS RECEIVED WITH YOUR LETTER.

IN THE WHELAN CASE THE BASIC FACTS AND STATUTORY PROVISIONS RELIED ON WERE SERVICE IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, RETIREMENT FOR DISABILITY BEFORE OCTOBER 1, 1949, A RECALL TO ACTIVE DUTY AND RELEASE FROM SUCH ACTIVE DUTY ON OR AFTER OCTOBER 1, 1949, TOGETHER WITH THE "RE-RETIREMENT" CONCEPT WHICH THE COURT OF CLAIMS HAS FOLLOWED IN APPLYING THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115. NO SUCH CASE WITHIN THE SCOPE OF THE FOURTH PARAGRAPH OF SECTION 15 HAS YET BEEN JUDICIALLY DECIDED ON ITS MERITS WHERE THE DATE OF "RE RETIREMENT" WAS SUBSEQUENT TO SEPTEMBER 30, 1949. IT HAS BEEN OUR POSITION IN THE MATTER THAT EFFECTIVE OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802), THE RETIRED PAY STATUS OF AN INDIVIDUAL IN THE CIRCUMSTANCES ABOVE DESCRIBED COMES SQUARELY WITHIN AND, HENCE, IS GOVERNED COMPLETELY BY THE PROVISIONS OF SECTION 516 OF THE 1949 LAW, BY SECTION 402 (D) OF THAT ACT PURSUANT TO A TIMELY AND VALID ELECTION ACCOMPLISHED UNDER AUTHORITY OF SECTION 411 OF THE ACT, OR BY THE LAST PROVISO OF SECTION 402 (D), AS APPLICABLE. THUS, WE STATED IN THE DECISION OF DECEMBER 2, 1960, THAT WHILE THIS OFFICE HAS BEEN FOLLOWING THE RULE OF THE COURT OF CLAIMS' DECISIONS WHERE "RE-RETIREMENT" UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OCCURRED PRIOR TO OCTOBER 1, 1949, WE HAVE BEEN SEEKING A JUDICIAL DETERMINATION CONCERNING THE APPLICABILITY OF THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 IN CASES SUCH AS THAT OF COMMANDER WHELAN WHERE THE SO-CALLED ,RE RETIREMENT" OCCURRED SUBSEQUENT TO SEPTEMBER 30, 1949.

THE JUDGMENT ENTERED ON SEPTEMBER 9, 1960, IN FAVOR OF COMMANDER WHELAN COVERING THE PERIOD JULY 1, 1953, TO JULY 12, 1960, INCLUSIVE, WAS BASED ON THE DEFENDANT'S (GOVERNMENT-S) ADMISSION OF LIABILITY CONCEDING THAT IN VIEW OF THE COURT'S REPEATED INTERPRETATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW "IN RELATION TO RIGHTS ACCRUING TO CLAIMANTS OF A NATURE SIMILAR TO THOSE CLAIMED, "COMMANDER WHELAN WAS ENTITLED TO RECOVER ADDITIONAL RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF HIS ACTIVE DUTY PAY ON THE DATE OF HIS "RE RETIREMENT.' SIMILAR ADMISSIONS OF LIABILITY IN TWO OTHER LIKE CASES (VESTAL V. UNITED STATES, CT.CL. 494-59, AND HARANT V. UNITED STATES, CT.CL. NO. 375-59) HAD BEEN FILED BY THE DEPARTMENT OF JUSTICE. HENCE, IN CONSIDERING WHETHER COMMANDER WHELAN PROPERLY COULD BE ALLOWED INCREASED RETIRED PAY FROM JULY 13, 1960, COMPUTED ON THE SAME BASIS AS IN THE JUDGMENT OF SEPTEMBER 9, 1960, IT SEEMED PROBABLE THAT IN THE EVENT HE BROUGHT A SUBSEQUENT SUIT THE DEPARTMENT OF JUSTICE WOULD HAVE ADMITTED LIABILITY ON THE SAME GROUNDS. IN SUCH CIRCUMSTANCES AND SINCE IT DID NOT THEN APPEAR THAT FURTHER LITIGATION BY COMMANDER WHELAN OF THE QUESTION PRESENTED IN HIS CASE WOULD BE LIKELY TO LEAD TO ANY RULING BY THE COURT OF CLAIMS BASED ON THE MERITS OF THE MATTER, IT WAS CONCLUDED THAT HIS RETIRED PAY ACCOUNT COULD BE ADJUSTED FROM JULY 13, 1960, ON THE SAME BASIS AS THAT AUTHORIZED IN THE JUDGMENT OF SEPTEMBER 9, 1960. THAT CONCLUSION AS TO COMMANDER WHELAN'S CASE IS NOT FOR APPLICATION IN ANY OTHER CASE.

THE BASIC QUESTION PRESENTED IN COMMANDER WHELAN'S CASE AND IN THE VESTAL AND HARANT CASES ABOVE REFERRED TO, AS WELL AS IN TWO OTHER SIMILAR CASES IN WHICH ADMISSIONS OF LIABILITY WERE FILED BY THE DEPARTMENT OF JUSTICE ON JANUARY 10, 1961 (GEORGE V. UNITED STATES, CT.CL. NO. 281-60, AND SKINNER V. UNITED STATES, CT.CL. NO. 194-60), NAMELY, WHETHER AN INDIVIDUAL WHO SERVED PRIOR TO NOVEMBER 12, 1918, AND WHO RETIRED BEFORE OCTOBER 1, 1949, WAS "RE-RETIRED" UPON REVERSION TO INACTIVE STATUS ON THE RETIRED LIST AFTER SEPTEMBER 30, 1949, FOLLOWING A FURTHER PERIOD OF ACTIVE DUTY SO AS TO BECOME ENTITLED TO SEVENTY-FIVE PERCENT OF THE PAY HE WAS DRAWING AT TIME OF "RE RETIREMENT," HAS NOT BEEN JUDICIALLY DETERMINED SINCE THOSE CASES WERE NOT SETTLED ON THEIR MERITS. THE QUESTION OF LAW PRESENTED IN THE WHELAN CASE IS PENDING BEFORE THE COURT IN THE CASE OF MENOCAL V. UNITED STATES, CT.CL. NO. 63-61, FILED FEBRUARY 20, 1961. WHILE WHELAN WAS ORIGINALLY RETIRED FOR DISABILITY AND MENOCAL'S RETIREMENT WAS BASED ON YEARS OF SERVICE, THAT DIFFERENCE DOES NOT DISTINGUISH THE TWO CASES SINCE BOTH CLAIMS APPARENTLY ARE BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. SEE, ALSO, WALSH V. UNITED STATES, CT.CL. NO. 243-61.

THERE ARE TWO ADDITIONAL DECISIONS OF THE COURT OF CLAIMS WHICH WE FEEL AFFECT THE RETIRED PAY RIGHTS OF PERSONS WHOSE STATUS IS LIKE THAT DISCLOSED IN THE WHELAN CASE. SEE JONES V. UNITED STATES, CT.CL. NO. 43- 59, MARCH 1, 1961, AND AFLAGUE, ET. AL. (GREAVES, NO. 14) V. UNITED STATES, CT.CL. NO. 212-56, JANUARY 12, 1962. IN BOTH OF THOSE DECISIONS THE COURT INDICATED THAT THE ONLY PERSONS WHO WERE ENTITLED TO COUNT INACTIVE TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY WERE THOSE PERSONS RECEIVING DISABILITY RETIRED PAY UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT, IN VIEW OF THE ABOVE MENTIONED DECISIONS OF THE COURT, IT IS PREPARED TO RE-EXAMINE ITS PREVIOUS POSITION IN A WHELAN-TYPE CASE IF THE MENOCAL CASE IS DECIDED IN FAVOR OF THE GOVERNMENT.

AFTER CONSIDERING ALL THE ASPECTS OF OUR DECISION OF DECEMBER 2, 1960, WE HAVE CONCLUDED THAT WE WILL NOT REQUIRE THAT PAYMENTS ON THE BASIS OF THAT DECISION TO COMMANDER WHELAN BE DISCONTINUED AT THE PRESENT TIME. HOWEVER, IF THE MENOCAL CASE SHOULD BE DECIDED IN FAVOR OF THE GOVERNMENT THAT WOULD RAISE SUCH DOUBTS AS TO THE PROPRIETY OF PERMITTING CREDIT FOR INACTIVE TIME ON THE RETIRED LIST IN COMMANDER WHELAN'S CASE AS TO REQUIRE DISCONTINUANCE OF SUCH CREDIT IN THE COMPUTATION OF HIS RETIRED PAY.