B-131341, JUL. 25, 1957

B-131341, JUL. 25, 1957

TO CAPTAIN FRANZ O. WILLENBUCHER, U.S. NAVY, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED FEBRUARY 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD JANUARY 1, 1947, TO SEPTEMBER 30, 1949.

IT APPEARS THAT YOU SERVED AS A MIDSHIPMAN IN THE UNITED STATES NAVY FROM JUNE 7, 1915, TO JUNE 6, 1918, AND AS A COMMISSIONED OFFICER FROM JUNE 7, 1918, TO DECEMBER 31, 1938; AND THAT EFFECTIVE JANUARY 1, 1939, YOU WERE PLACED ON THE RETIRED LIST, AT YOUR OWN REQUEST, BY REASON OF THE COMPLETION OF 20 YEARS' COMMISSIONED SERVICE. IT FURTHER APPEARS THAT YOU SERVED ON ACTIVE DUTY AS A RETIRED OFFICER FROM NOVEMBER 20, 1939, TO DECEMBER 1, 1946. YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AT 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH 27 AND LESS THAN 30 YEARS' SERVICE, AND SUCH PAY COMPUTED AS 70 PERCENTUM (2 1/2 PERCENTUM TIMES 28, YEARS OF ACTIVE SERVICE) OF SUCH ACTIVE-DUTY PAY, AND IS PRESENTED ON THE BASIS OF THE HOLDING IN GORDON V. UNITED STATES, 134 C.CLS. 840.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, PROVIDES THAT THE RETIRED PAY OF ANY REGULAR OFFICER WHO SERVED IN ANY CAPACITY IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND IS "HEREAFTER" RETIRED "SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

IT WAS HELD IN THE CARROLL AND DANIELSON CASES (117 C.CLS. 53 AND 121 C.CLS. 533, RESPECTIVELY) THAT AN OFFICER WHO HAD HAD SERVICE PRIOR TO NOVEMBER 12, 1918, WHO INCURRED PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT, AND WHO WAS RELEASED FROM SUCH ACTIVE DUTY ON OR AFTER JUNE 1, 1942 (THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942), WAS "HEREAFTER RETIRED" WITHIN THE CONTEMPLATION OF PARAGRAPH 4 OF SECTION 15 OF THAT ACT. IN THE GORDON CASE THE COURT EXTENDED THE CONCEPT OF "RE-RETIREMENT," FIRST ADVANCED IN THE CARROLL AND DANIELSON CASES, BY APPLYING THAT CONCEPT WHERE NO PHYSICAL DISABILITY WAS INCURRED WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT.

WE ARE FOLLOWING THE COURT'S HOLDING IN THE CARROLL AND DANIELSON CASES IN SIMILAR CASES, THAT IS, WHERE THE ELEMENT OF DISABILITY INCURRED ON ACTIVE DUTY AFTER RETIREMENT IS INVOLVED. BUT IN OUR LATEST DECISION ON THE MATTER (B-131700, JULY 17, 1957, TO THE SECRETARY OF DEFENSE) WE STATED THAT--- "THE ONLY SITUATION IN WHICH WE ARE FOLLOWING THE "RE- RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS * * * IS THAT CONSIDERED IN THE CASE OF DANIELSON V. UNITED STATES, 121 C.CLS. 533, WHERE THE PLAINTIFF WAS RETIRED FOR PHYSICAL DISABILITY BEFORE OCTOBER 1, 1949, AND INCURRED ADDITIONAL PHYSICAL DISABILITY OF NOT LESS THAN 30 PERCENT WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT BUT PRIOR TO OCTOBER 1, 1949.'