B-130797, APR. 1, 1957

B-130797, APR. 1, 1957

TO ANSELL AND ANSELL:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1957, PRESENTING CLAIM ON BEHALF OF MAJOR ROBERT C. BECKETT, UNITED STATES ARMY, RETIRED (OUR CLAIMS DIVISION FILE NO. Z-64757) FOR ADDITIONAL RETIRED PAY FOR THE PERIOD COMMENCING FEBRUARY 1, 1947, AS FOLLOWS:

(1) THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A MAJOR WITH OVER 27 YEARS' SERVICE AND THE RETIRED PAY RECEIVED BY THE PLAINTIFF COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A FIRST LIEUTENANT WITH OVER 18 YEARS' SERVICE FOR THE PERIOD FEBRUARY 1, 1947, TO JUNE 28, 1948, INCLUSIVE;

(2) THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A MAJOR WITH OVER 27 YEARS' SERVICE AND THE RETIRED PAY RECEIVED BY THE PLAINTIFF COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A MAJOR WITH OVER 18 YEARS' SERVICE FOR THE PERIOD JUNE 29, 1948, TO DECEMBER 31, 1950, INCLUSIVE; AND

(3) INCREASED RETIRED PAY COMPUTED ON THE SAME BASIS AS SET FORTH IN (2) ABOVE FOR THE PERIOD COMMENCING JANUARY 1, 1951.

IN YOUR LETTER IT IS INDICATED THAT MAJOR BECKETT'S CLAIM FOR ADDITIONAL RETIRED PAY DURING THE THREE PERIODS SET FORTH IN (1), (2), AND (3) ABOVE IS BASED UPON FACTS WHICH YOU DEEM SERVE TO BRING IT WITHIN THE PURVIEW OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF GORDON V. UNITED STATES, DECIDED APRIL 3, 1956, 134 C.CLS. 840, IN WHICH JUDGMENT HAS BECOME FINAL. IN THAT DECISION THE COURT HELD THAT "UPON THE BASIS OF PLAINTIFF'S SERVICE RECORD SHOWING THAT HE ENTERED SERVICE IN 1917, WAS PLACED ON INACTIVE STATUS IN 1939, RECALLED TO ACTIVE DUTY IN 1942 (JANUARY 19, 1942), AND SERVED UNTIL 1943 WHEN HE AGAIN RETURNED TO INACTIVE STATUS, THERE CAN BE NO QUESTION THAT PLAINTIFF WAS "HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15, SUPRA (37 U.S.C. 115).'

IN OUR DECISION OF MAY 18, 1951, 30 COMP. GEN. 458, WE DISCUSSED THE LANGUAGE AND LEGISLATIVE HISTORY OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, AND IN CONNECTION WITH THE APPLICATION OF THAT PARAGRAPH STATED THE FOLLOWING (AT PAGE 463):

"ALTHOUGH A RETIRED OFFICER MAY BE RECALLED TO ACTIVE DUTY HE IS STILL ON THE RETIRED LIST (FULMER V. UNITED STATES 32 C.CLS. 112, 119; BYRD V. UNITED STATES, 103 C.CLS. 285; RUDD V. UNITED STATES, 71 C.CLS. 432), AND WHEN HIS ASSIGNMENT TO ACTIVE DUTY IS TERMINATED, HE IS NOT AGAIN ,RETIRED" (HAVING RETIRED WHEN HIS NAME ORIGINALLY WAS PLACED ON THE RETIRED LIST) BUT MERELY REVERTS TO AN INACTIVE STATUS ON THE RETIRED LIST, NOTWITHSTANDING THAT HE MAY BE PROMOTED OR ADVANCED TO A HIGHER GRADE OR RANK ON SUCH RETIRED LIST. THERE IS NOTHING WHATEVER TO SUGGEST THAT THE CONGRESS INTENDED ANYTHING DIFFERENT BY THE PLAIN LANGUAGE OF THE STATUTORY PROVISIONS HERE INVOLVED. * * *"

WHILE WE SUBSEQUENTLY CONCLUDED IN A LETTER DATED JULY 28, 1952, B 110121, ADDRESSED TO THE ATTORNEY GENERAL, THAT WE WOULD FOLLOW AS A PRECEDENT THE COURT'S DECISIONS IN THE CARROLL AND DANIELSON CASES (117 C.CLS. 53 AND 121 C.CLS. 533, RESPECTIVELY) BASED ON A "RE RETIREMENT" CONCEPT, CREATED BY THE COURT, WE DID SO BECAUSE IN EACH OF THOSE CASES THE OFFICER HAD SUFFERED ADDITIONAL PHYSICAL DISABILITY OF 30 PERCENTUM OR MORE WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT AND, BY REASON OF SUCH ADDITIONAL PHYSICAL DISABILITY AND SPECIFIC STATUTORY PROVISIONS PROVIDING FOR A CHANGE IN RETIREMENT AND RETIRED PAY STATUS, HAD ACQUIRED A NEW AND DIFFERENT STATUS ON THE RETIRED LIST UPON RELIEF FROM ACTIVE DUTY AFTER JUNE 16, 1942, THE DATE OF ENACTMENT OF THE 1942 ACT. NO SUCH BASIS FOR A CHANGE IN STATUS ON THE RETIRED LIST BECAUSE OF ADDITIONAL PHYSICAL DISABILITY WAS INVOLVED IN THE GORDON CASE AND THE COURT'S BROADENED CONCEPT OF "RE RETIREMENT" AS NOW REFLECTED IN THE DECISION IN THAT CASE IS WITHOUT OTHER LEGAL PRECEDENT AND WOULD SEEM TO CONFLICT WITH WELL- ESTABLISHED VIEWS AND CONCEPTS RESPECTING THE RETIREMENT OF MILITARY PERSONNEL. FOR EXAMPLE, IN THE OPINION OF THE SUPREME COURT IN ROGET V. UNITED STATES, 148 U.S. 167, 172, IT IS STATED THAT "THE RETIREMENT OF AN OFFICER IS A PROCEEDING THAT CAN ONLY TAKE PLACE IN A PRESCRIBED MANNER, AND IT IS NOT PRETENDED THAT SUCH PROCEEDING OCCURRED, WITH REFERENCE TO * * * (ROGET) MORE THAN ONCE.'

IT IS NOT ASSERTED THAT MAJOR BECKETT ACTUALLY WAS RETIRED MORE THAN ONCE BUT MERELY THAT HIS RELEASE FROM ACTIVE DUTY IN 1944 CONSTITUTES A "RE- RETIREMENT" BY VIRTUE OF THE CONSTRUCTION PLACED BY THE COURT OF CLAIMS ON THE WORDS "HEREAFTER RETIRED" CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942. WE FEEL THAT SUCH CONSTRUCTION IS CONTRARY TO THE INTENT OF THE CONGRESS AS INDICATED BY THE PLAIN LANGUAGE AND THE LEGISLATIVE HISTORY OF THAT PARAGRAPH. SEE 30 COMP. GEN. 458.

WE MUST HOLD, THEREFORE, THAT THE GORDON DECISION OF APRIL 3, 1956, 134 C.CLS. 840, FURNISHES NO SUFFICIENT LEGAL BASIS TO EXTEND THE RULE THEREOF TO THIS OR ANY OTHER SIMILAR CASE. IN SUCH CIRCUMSTANCES, NO PROPER BASIS IS PERCEIVED TO JUSTIFY OR WARRANT A SETTLEMENT IN MAJOR BECKETT'S FAVOR BY THIS OFFICE AND HE THEREFORE IS FREE TO CONTINUE TO PROSECUTE HIS CLAIM BEFORE THE COURT OF CLAIMS.