B-133742, OCT. 14, 1957

B-133742: Oct 14, 1957

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. IT APPEARS THAT THE HIGHEST GRADE IN WHICH YOU SERVED ON ACTIVE DUTY WAS THAT OF LIEUTENANT COLONEL. YOU WERE RETIRED IN THAT RANK FOR PHYSICAL DISABILITY ON MAY 31. THE DECISION IN THAT CASE WAS BY A DIVIDED COURT. THERE IS NO SUCH STATUTE.'. WERE CLARIFIED IN THE CODIFICATION OF THAT SECTION CONTAINED IN THE ACT OF AUGUST 10. IN A MANNER WHICH THROWS DOUBT ON WHETHER THOSE PROVISIONS WERE CORRECTLY INTERPRETED BY THE COURT. IN SUCH CIRCUMSTANCES AND SINCE THERE ARE A NUMBER OF OTHER SIMILAR CASES NOW PENDING BEFORE THE SAME COURT IN WHICH RECONSIDERATION MAY BE GIVEN THESE MATTERS. WE HAVE CONCLUDED NOT TO FOLLOW THE TRACY DECISION IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS.

B-133742, OCT. 14, 1957

TO LIEUTENANT COLONEL CHARLES T. HOLLAND, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1957, CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY FROM JUNE 1, 1951, BASED ON THE RANK OF COLONEL HELD BY YOU IN THE UNITED STATES AIR FORCE RESERVE.

IT APPEARS THAT THE HIGHEST GRADE IN WHICH YOU SERVED ON ACTIVE DUTY WAS THAT OF LIEUTENANT COLONEL, AIR FORCE OF THE UNITED STATES, AND THAT UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, YOU WERE RETIRED IN THAT RANK FOR PHYSICAL DISABILITY ON MAY 31, 1951, AT WHICH TIME YOU HELD A COMMISSION AS COLONEL IN THE AIR FORCE RESERVE.

WHILE THE CASE OF TRACY V. UNITED STATES, C.CLS. NO. 113-55, DECIDED JUNE 5, 1956, LENDS SUPPORT TO YOUR CLAIM, THE DECISION IN THAT CASE WAS BY A DIVIDED COURT. IN HIS DISSENTING OPINION, CHIEF JUDGE JONES EXPRESSED THE VIEW--- WITH WHICH WE AGREE--- THAT "TO JUSTIFY A RETIREMENT IN A RANK HIGHER THAN ANY IN WHICH ACTUAL SERVICE HAS BEEN RENDERED WOULD REQUIRE A CLEAR STATUTE TO THAT EFFECT. THERE IS NO SUCH STATUTE.' ALSO, THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT, WHICH FORM THE BASIS FOR THE DECISION IN THE TRACY CASE, WERE CLARIFIED IN THE CODIFICATION OF THAT SECTION CONTAINED IN THE ACT OF AUGUST 10, 1956, 10 U.S.C. 1372, IN A MANNER WHICH THROWS DOUBT ON WHETHER THOSE PROVISIONS WERE CORRECTLY INTERPRETED BY THE COURT. IN SUCH CIRCUMSTANCES AND SINCE THERE ARE A NUMBER OF OTHER SIMILAR CASES NOW PENDING BEFORE THE SAME COURT IN WHICH RECONSIDERATION MAY BE GIVEN THESE MATTERS, WE HAVE CONCLUDED NOT TO FOLLOW THE TRACY DECISION IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO SUFFICIENT BASIS FOR THE ALLOWANCE OF YOUR CLAIM.