B-106382, JUL. 8, 1958

B-106382: Jul 8, 1958

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RETIRED: YOU HAVE REQUESTED IN LETTER DATED FEBRUARY 11. THAT YOU WERE RETIRED AS LIEUTENANT. WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 12. THE ACTION TAKEN IN THAT SETTLEMENT WAS SUSTAINED IN THE DECISION TO YOU OF SEPTEMBER 19. YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 8 (C) OF THE ACT OF JULY 24. YOUR PRESENT REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY IS BASED ON THE DECISIONS IN THE SHERFEY AND GORDON CASES. IN THE SHERFEY CASE IS FOUNDED ON THE "RE-RETIREMENT" CONCEPT OF THE GORDON DECISION OF APRIL 3. RE-RETIREMENT" CONCEPT WHICH WAS FIRST ADOPTED BY THE COURT IN THE DANIELSON DECISION OF FEBRUARY 5.

B-106382, JUL. 8, 1958

TO COMMANDER GEORGE E. KENYON, U.S. NAVY, RETIRED:

YOU HAVE REQUESTED IN LETTER DATED FEBRUARY 11, 1958 (ACKNOWLEDGED APRIL 11, 1958, BY THE CLAIMS DIVISION OF THIS OFFICE), FURTHER CONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED DUE YOU FROM SEPTEMBER 8, 1946. IT APPEARS THAT YOU BELIEVE YOUR CLAIM MAY BE FOR ALLOWANCE UNDER THE DECISIONS RENDERED BY THE COURT OF CLAIMS IN (1) THE CASE OF ANDREW L. GORDON V. UNITED STATES, 134 C.CLS. 840, DECIDED APRIL 3, 1956, AND (2) IN THE CASE OF WALTER L. SHERFEY V. UNITED STATES, C.CLS.NO. 324-56, DECIDED JANUARY 15, 1958.

THE RECORD DISCLOSES THAT YOU SERVED IN THE UNITED STATES NAVY PRIOR TO NOVEMBER 12, 1918, AND THAT YOU WERE RETIRED AS LIEUTENANT, U.S. NAVY, EFFECTIVE FROM SEPTEMBER 8, 1946, THE DATE OF YOUR RELEASE TO INACTIVE WITH THE PROVISIONS OF 34 U.S.C. 417, 1934 ED. YOU SERVED AS A RETIRED OFFICER ON ACTIVE DUTY FROM MAY 4, 1942, TO SEPTEMBER 7, 1946, INCLUSIVE, AND YOU NOW HOLD THE RANK OF COMMANDER ON THE RETIRED LIST BY VIRTUE OF THE PROVISIONS OF 34 U.S.C. 350 (I), 1946 ED. IT APPEARS THAT EFFECTIVE FROM SEPTEMBER 8, 1946, THE DATE OF YOUR RELEASE TO INACTIVE DUTY STATUS ON THE RETIRED LIST IN THE RANK OF COMMANDER, YOUR RETIRED PAY HAS BEEN COMPUTED ON THE BASIS OF ALL THE SERVICE CREDITABLE TO YOU ON THE EFFECTIVE DATE OF YOUR RETIREMENT, MARCH 1, 1935, PLUS THE PERIOD OF ACTIVE DUTY PERFORMED FROM MAY 4, 1942, TO SEPTEMBER 7, 1946, INCLUSIVE, BUT WITHOUT CREDIT FOR THE PERIOD OF YOUR INACTIVE STATUS ON THE RETIRED LIST FROM MARCH 1, 1935, TO MAY 3, 1942, INCLUSIVE. IF THE PERIOD OF YOUR INACTIVE TIME ON THE RETIRED LIST FROM MARCH 1, 1935, TO MAY 3, 1942, INCLUSIVE, 7 YEARS, 2 MONTHS, AND 3 DAYS, PROPERLY MAY BE INCLUDED AS YOU CONTEND, THEN YOUR RETIRED PAY WOULD BE FOR COMPUTATION ON THE BASIS OF THE ACTIVE-DUTY PAY OF A COMMANDER WITH OVER30 CREDITABLE YEARS OF SERVICE.

YOUR INITIAL CLAIM (FILED BY YOU IN APRIL 1951) FOR ADDITIONAL RETIRED PAY BELIEVED DUE YOU EFFECTIVE FROM SEPTEMBER 8, 1946, WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 12, 1951. THE ACTION TAKEN IN THAT SETTLEMENT WAS SUSTAINED IN THE DECISION TO YOU OF SEPTEMBER 19, 1952, B-106382, SETTING FORTH THE PROVISIONS OF LAW APPLICABLE IN YOUR CASE AND EXPLAINING THAT SINCE YOU HAD NOT INCURRED AN ADDITIONAL DISABILITY OF NOT LESS THAN 30 PERCENTUM WHILE SERVING ON ACTIVE DUTY DURING THE PERIOD FROM MAY 4, 1942, TO SEPTEMBER 7, 1946, YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 8 (C) OF THE ACT OF JULY 24, 1941, 55 STAT. 603, 604. NO BASIC CHANGE HAS SINCE BEEN MADE IN THE STATUTORY PROVISIONS THAT GOVERN YOUR RETIRED PAY STATUS.

AS ABOVE STATED, YOUR PRESENT REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY IS BASED ON THE DECISIONS IN THE SHERFEY AND GORDON CASES. THE DECISION OF JANUARY 15, 1958, IN THE SHERFEY CASE IS FOUNDED ON THE "RE-RETIREMENT" CONCEPT OF THE GORDON DECISION OF APRIL 3, 1956. BRIEFLY STATED, THE THEORY OF THE GORDON CASE (WHICH IN TURN STEMMED FROM THE ,RE-RETIREMENT" CONCEPT WHICH WAS FIRST ADOPTED BY THE COURT IN THE DANIELSON DECISION OF FEBRUARY 5, 1952, 121 C.CLS. 533, WHEREIN THE OFFICER THERE CONCERNED HAD INCURRED AN ADDITIONAL DISABILITY OF NOT LESS THAN 36 PERCENTUM WHILE SERVING ON ACTIVE DUTY SUBSEQUENT TO THE DATE OF HIS RETIREMENT) IS THAT THE TERM "HEREAFTER RETIRED" AS USED IN THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, MEANS (QUOTING FROM THE COURT'S LANGUAGE IN THE GORDON CASE) "* * * NOT ONLY OFFICERS RETIRED FOR THE FIRST TIME SUBSEQUENT TO 1942, BUT ALSO OFFICERS PREVIOUSLY RETIRED WHO WERE RECALLED TO ACTIVE DUTY AND, AFTER SERVING ON ACTIVE DUTY, WERE RETURNED TO INACTIVE STATUS ON THE RETIRED LIST SUBSEQUENT TO 1942.' THIS CONCEPT OF A ,RE-RETIREMENT" OCCURRING WHENEVER A RETIRED OFFICER WHO HAS BEEN RECALLED TO ACTIVE DUTY IS RELEASED TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST IS WITHOUT OTHER LEGAL PRECEDENT AND IS CONTRARY TO LONG AND WELL-ESTABLISHED MILITARY PROCEDURES GOVERNING THE RETIRED STATUS OF MILITARY PERSONNEL.

THERE ARE NUMEROUS CASES NOW PENDING BEFORE THE COURT OF CLAIMS INVOLVING RETIRED MILITARY PERSONNEL, WHO IN VARIOUS ACTS OF CIRCUMSTANCES WERE RETURNED TO INACTIVE DUTY STATUS ON THE RETIRED LIST FOLLOWING PERIODS OF ACTIVE DUTY PERFORMED BY THEM SUBSEQUENT TO THE DATE OF THEIR RETIREMENT. THE OUTCOME OF ALL OF THESE CASES IS DEPENDENT ON THE EXTENT TO WHICH THE COURT OF CLAIMS WILL SEE FIT TO FOLLOW OR DEVIATE FROM THE "RE-RETIREMENT" CONCEPT THAT WAS ADOPTED BY THE COURT IN THE GORDON CASE WITH RESPECT TO INDIVIDUALS WHOSE STATUS OTHERWISE PLACES THEM WITHIN THE SCOPE OF THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW. AT THIS TIME WE PERCEIVE NO PROPER LEGAL BASIS UPON WHICH TO EXTEND TO ANY OTHER SIMILAR CASE THE ,RE-RETIREMENT" CONCEPT OF THE GORDON DECISION. THE DECISION IN THE SHERFEY CASE IS FOUNDED ON THE SAME "RE-RETIREMENT" CONCEPT OF THE GORDON DECISION AND IT FOLLOWS THEREFORE THAT THE SHERFEY CASE LIKEWISE PRESENTS NO PROPER LEGAL BASIS FOR ALLOWANCE OF ANY OTHER SIMILAR CLAIMS. MOREOVER, IT IS UNDERSTOOD THAT A PETITION HAS BEEN PRESENTED TO THE SUPREME COURT FOR A WRIT OF CERTIORARI IN THE SHERFEY CASE, THUS PRECLUDING THE APPLICATION OF THE RULE OF THAT CASE UNTIL THE FINAL CONCLUSION OF THE JUDICIAL PROCEEDINGS THEREIN.

INASMUCH AS YOU DID NOT INCUR AN ADDITIONAL DISABILITY OF NOT LESS THAN 30 PERCENTUM WHILE SERVING ON ACTIVE DUTY DURING THE PERIOD FROM MAY 4, 1942, TO SEPTEMBER 7, 1946, YOUR RETIRED PAY STATUS LIES OUTSIDE OF THE RULE STATED IN THE DANIELSON DECISION OF FEBRUARY 5, 1952, 121 C.CLS. 533. ACCORDINGLY, UNDER THE APPLICABLE PROVISIONS OF LAW WHICH GOVERN YOUR RETIRED PAY STATUS NO ADDITIONAL AMOUNT OF RETIRED PAY IS FOUND DUE YOU FOR ANY PART OF THE PERIOD FROM SEPTEMBER 8, 1946, THE EFFECTIVE DATE OF YOUR RELEASE TO INACTIVE DUTY STATUS ON THE RETIRED LIST OF THE UNITED STATES NAVY.

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