B-133856, NOV. 1, 1957

B-133856: Nov 1, 1957

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6. WHICH WAS DENIED IN OUR SETTLEMENT DATED AUGUST 15. THE ADJUSTMENT OF YOUR RETIRED PAY WAS DENIED FOR THE REASON THAT PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES. THE SAID PARAGRAPH IS NOT APPLICABLE IN YOUR CASE AS A RESERVE OFFICER RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. WE HELD THAT THE OFFICER CONCERNED WAS NOT ENTITLED TO RETIRED PAY COMPUTED AT THREE-FOURTHS OF THE ACTIVE DUTY PAY THE GRADE IN WHICH SERVING AT THE TIME OF HIS RETIREMENT. THAT DECISION WAS PREDICATED ON THE ESTABLISHMENT BY TITLE III OF THE ACT OF JUNE 29.

B-133856, NOV. 1, 1957

TO COLONEL MANUEL FONT, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1957, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADJUSTMENT OF RETIRED PAY UNDER THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AND THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, WHICH WAS DENIED IN OUR SETTLEMENT DATED AUGUST 15, 1957.

THE ADJUSTMENT OF YOUR RETIRED PAY WAS DENIED FOR THE REASON THAT PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES; THAT, THEREFORE, THE SAID PARAGRAPH IS NOT APPLICABLE IN YOUR CASE AS A RESERVE OFFICER RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087.

BY THE DECISION OF APRIL 26, 1950, 29 COMP. GEN. 424, REFERRED TO IN THE SETTLEMENT OF AUGUST 15, 1957, WE HELD THAT THE OFFICER CONCERNED WAS NOT ENTITLED TO RETIRED PAY COMPUTED AT THREE-FOURTHS OF THE ACTIVE DUTY PAY THE GRADE IN WHICH SERVING AT THE TIME OF HIS RETIREMENT. THAT DECISION WAS PREDICATED ON THE ESTABLISHMENT BY TITLE III OF THE ACT OF JUNE 29, 1948, OF A RETIREMENT PAY SYSTEM FOR PARTICULAR MEMBERS AND FORMER MEMBERS OF/THE ARMED FORCES ENTIRELY SEPARATE AND DISTINCT FROM THAT PROVIDED FOR MEMBERS GENERALLY, WITH RADICALLY NEW AND DIFFERENT CONDITIONS RESPECTING QUALIFICATIONS FOR AND COMPUTATION OF RETIRED PAY. WE CONCLUDED THAT THE LAWS GOVERNING THE RETIREMENT PAY SYSTEMS OF THE TWO GROUPS MUST BE REGARDED AS MUTUALLY EXCLUSIVE.

IN OUR DECISION OF AUGUST 13, 1951, B-102149, 31 COMP. GEN. 28, 33, THE CONCLUSION REACHED TO THE EFFECT THAT MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES, RETIRED FOR PHYSICAL DISABILITY ON OR AFTER OCTOBER 1, 1949, ARE ENTITLED TO THE BENEFITS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WAS BASED ON THE STATUTORY PROVISION CONTAINED IN SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, WHICH EXPRESSLY PROVIDES THAT ALL MEMBERS OF THE RESERVE COMPONENTS THERETOFORE OR THEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES. HOWEVER, THERE IS NO SIMILAR PROVISION OF LAW FOR MEMBERS OF THE RESERVE COMPONENTS WHO HAVE RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY AS IN YOUR CASE. COMPARE 31 COMP. GEN. 293; 36 COMP. GEN. 158, 160.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, READS AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, 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 APPEARS TO BE YOUR CONTENTION THAT YOU FULFILLED THE REQUIREMENTS OF THE ABOVE-QUOTED PROVISION BECAUSE YOU PERFORMED ACTIVE DUTY AS A MAJOR IN THE REGULAR ARMY FOR 14 DAYS FROM OCTOBER 30, 1918, TO NOVEMBER 12, 1918.

THE BILL WHICH BECAUSE THE PAY READJUSTMENT ACT OF 1942, AS IT INITIALLY PASSED THE SENATE, DID NOT CONTAIN THE PROVISION HERE IN QUESTION. THAT PROVISION WAS ADDED AS AN AMENDMENT TO THE SENATE BILL ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES. THE AMENDMENT AS ORIGINALLY OFFERED BY CONGRESSMAN MAAS APPLIED TO "ANY OFFICER OF THE NAVY, MARINE CORPS OR COAST GUARD," BUT AS ENACTED IT APPLIES TO "ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT"--- THAT IS, ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE. IN THAT CONNECTION IT MAY BE NOTED THAT SOME PROVISIONS OF THE ACT REFER ONLY TO PERSONNEL "OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" AND, HENCE, BY THEIR TERMS ARE APPLICABLE TO MEMBERS OF THE RESERVE COMPONENTS ONLY. SEE PROVISIONS IN SECTIONS 3, 14, AND 15 OF THE ACT. OTHER PROVISIONS OF THE ACT ARE MADE EXPRESSLY APPLICABLE TO PERSONNEL "OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF," OR TO PERSONNEL" OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT AND MEMBERS OF THE RESERVE FORCES OF SUCH SERVICES.' SEE SECTIONS 12, 18, AND 19. THUS IT IS SHOWN THAT RESERVE COMPONENTS SHOULD NOT BE CONSIDERED AS BEING INCLUDED IN THE TERM "ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" AND THAT THE SERVICES CONTEMPLATED BY SUCH TITLE AND PARAGRAPH 4 OF SECTION 15 WERE THE REGULAR SERVICES, THAT IS, THE REGULAR ARMY, THE REGULAR NAVY, ETC.

ALSO, WE HAVE BEFORE US THE STATEMENT OF THE AUTHOR OF THE PROVISION IN QUESTION, ACCEPTED AND ACTED UPON BY CONGRESS, THAT PARAGRAPH 4 OF SECTION 15 WAS DESIGNED TO DO NO MORE FOR THE NAVY AND THE OTHER NAMED SERVICES THAN HAD ALREADY BEEN DONE BY CONGRESS FOR THE ARMY, UNDER THE PROVISIONS OF 10 U.S.C. 971 (B). SEE 88 CONGRESSIONAL RECORD 4126. SINCE PARAGRAPH 4 EXPRESSLY LIMITED THE RECOVERY OF RETIRED PAY BASED UPON 75 PERCENTUM OF ACTIVE DUTY PAY TO RETIRED OFFICERS OF THE REGULAR ARMY SERVING PRIOR TO NOVEMBER 12, 1918, PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 MUST BE HELD TO LIMIT THE RECOVERY OF SUCH PAY TO MEMBERS WHO RETIRED AS OFFICERS OF THE REGULAR ARMY AND OF THE REGULAR COMPONENTS OF THE OTHER SERVICES NAMED IN THE ACT. SEE 26 COMP. GEN. 932; 31 COMP. GEN. 28. ON THE STRENGTH OF THIS AND THE OTHER PERSUASIVE FACTORS, OUR VIEW IS THAT HAVING RETIRED AS A RESERVE OFFICER, RATHER THAN AN OFFICER OF THE REGULAR ARMY, YOU DO NOT QUALIFY TO RECEIVE RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENTUM OF YOUR ACTIVE DUTY PAY, NOTWITHSTANDING YOU MAY HAVE SERVED AS AN OFFICER OF THE REGULAR ARMY PRIOR TO NOVEMBER 12, 1918.

OUR POSITION HAS BEEN UPHELD BY THE COURT OF CLAIMS. SEE THE CASES OF ALBERT G. BERRY, JR. V. UNITED STATES, 123 C.CLS. 530, AND FRANK F. REYNOLDS V. UNITED STATES, 125 C.CLS. 108. IN THE FORMER CASE THE PLAINTIFF GRADUATED FROM THE UNITED STATES NAVAL ACADEMY IN JUNE 1914. ACCEPTED A COMMISSION AS ENSIGN IN THE UNITED STATES NAVY, EFFECTIVE JUNE 6, 1914, AND THEREAFTER SERVED CONTINUOUSLY AS A COMMISSIONED OFFICER IN THE UNITED STATES NAVY UNTIL FEBRUARY 15, 1926, WHEN HE RESIGNED. ACCEPTED APPOINTMENT AS LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE, ON APRIL 6, 1926, AND WAS PLACED ON THE RETIRED LIST OF THE NAVAL RESERVE WITH THE RANK OF COMMANDER ON FEBRUARY 1, 1947. THE COURT, IN THE BERRY CASE, REFERRING TO SECTION 15 OF THE 1942 ACT, HELD THAT PARAGRAPH 4 "MUST BE HELD TO LIMIT RECOVERY OF SUCH PAY (75 PERCENTUM OF ACTIVE DUTY PAY AT TIME OF RETIREMENT) TO RETIRED OFFICERS OF THE REGULAR NAVY AND OF THE REGULAR COMPONENTS OF THE OTHER SERVICES NAMED THEREIN.' AND, IN THE REYNOLDS CASE, INVOLVING SUBSTANTIALLY SIMILAR CIRCUMSTANCES TO THOSE INVOLVED IN YOUR CASE, THE COURT HELD THAT THE LEGISLATIVE HISTORY OF THE CAREER COMPENSATION ACT OF 1949 DOES NOT SHOW ANY INTENT ON THE PART OF CONGRESS, IN THE ENACTMENT OF THAT LEGISLATION, TO PLACE A NEW INTERPRETATION ON SECTION 15 OF THE 1942 LAW OR TO HAVE THE SECTION APPLY TO RETIRED PAY OF RESERVE OFFICERS.