B-137364, SEP 30, 1958

B-137364: Sep 30, 1958

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PRECIS-UNAVAILABLE ATTORNEY GENERAL: REFERENCE IS MADE TO LETTER OF SEPTEMBER 10. THAT IS. THE CONCEPT THAT MEMBERS OF THE MILITARY SERVICE WHO ARE RETIRED AND WHO SUBSEQUENTLY SERVE ON ACTIVE DUTY ARE "RE-RETIRED" ON THE DATE OF RELEASE FROM SUCH ACTIVE DUTY AND ARE ENTITLED TO HAVE THEIR RETIRED PAY DETERMINED ON THE BASIS OF AN ACTUAL RETIREMENT ON THE DATE OF RELEASE. THE CASES FALL INTO THREE GENERAL CATEGORIES WHICH WILL BE DISCUSSED SEPARATELY. WAS A "RE-RETIREMENT" SO AS TO BRING HIM WITHIN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. IS APPLICABLE TO OFFICERS "HEREAFTER RETIRED.". EACH OF THE PLAINTIFFS WAS RETIRED PRIOR TO JUNE 1. WAS RELEASED FROM SUCH ACTIVE DUTY AFTER JUNE 1.

B-137364, SEP 30, 1958

PRECIS-UNAVAILABLE

ATTORNEY GENERAL:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 10, 1958, FROM THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, TO THE ACTING GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, CONCERNING THE COURSE OF ACTION TO BE FOLLOWED BY THE DEPARTMENT OF JUSTICE AND OUR OFFICE WITH RESPECT TO THE DETERMINATION BY THE COURT OF CLAIMS IN THE CASES REFERRED TO BELOW. PURSUANT TO THE REQUEST OF THE ASSISTANT ATTORNEY GENERAL, REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE MET WITH HIM AND OTHER REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE TO DISCUSS THE PROBLEMS PRESENTED.

ALL OF THE CASES TO WHICH THE LETTER OF SEPTEMBER 10 REFERS, EXCEPT THE SELIGA CASE, INVOLVE THE "RE-RETIREMENT" THEORY OF THE COURT OF CLAIMS; THAT IS, THE CONCEPT THAT MEMBERS OF THE MILITARY SERVICE WHO ARE RETIRED AND WHO SUBSEQUENTLY SERVE ON ACTIVE DUTY ARE "RE-RETIRED" ON THE DATE OF RELEASE FROM SUCH ACTIVE DUTY AND ARE ENTITLED TO HAVE THEIR RETIRED PAY DETERMINED ON THE BASIS OF AN ACTUAL RETIREMENT ON THE DATE OF RELEASE. THE CASES FALL INTO THREE GENERAL CATEGORIES WHICH WILL BE DISCUSSED SEPARATELY.

THE DANIELSON AND CARROLL CASES INVOLVED OFFICERS OF THE ARMY WHO HAD BEEN RETIRED PRIOR TO JUNE 1, 1942 (THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359), FOR DISABILITY AND WHO HAD SUFFERED ADDITIONAL DISABILITY OF NOT LESS THAN 30 PER CENTUM WHILE SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE. SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, PROVIDED THAT UNDER SUCH CIRCUMSTANCES AN OFFICER OF THE REGULAR ARMY SHALL BE PROMOTED ON THE RETIRED LIST TO THE HIGHER GRADE AND RECEIVE RETIRED PAY BASED ON THAT GRADE. IN ADDITION TO THE BENEFITS GRANTED BY THAT PROVISION, THE COURT OF CLAIMS DETERMINED THAT THE OFFICER'S RELEASE FROM ACTIVE DUTY AFTER JUNE 1, 1942, WAS A "RE-RETIREMENT" SO AS TO BRING HIM WITHIN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, WHICH, BY EXPRESS TERMS, IS APPLICABLE TO OFFICERS "HEREAFTER RETIRED." WHILE WE REPEATEDLY STATED OUR OBJECTIONS TO THE COURT'S "RE-RETIREMENT" THEORY, WE NOTIFIED YOU ON JULY 28, 1952, B-110121, IN THE CASE OF CHARLES R. CARLSON V. THE UNITED STATES, COURT OF CLAIMS NO. 191-52, THAT WE WOULD FOLLOW IN OTHER LIKE CASES THE RULE ESTABLISHED BY THE COURT IN THE DANIELSON AND CARROLL CASES. THERE HAS BEEN NO CHANGE IN THAT POSITION.

THE GORDON, FIELD AND SHERFEY CASES MAY BE CONSIDERED TOGETHER BECAUSE OF THEIR SIMILARITY AS TO THE FACTS INVOLVED AND AS TO THEIR DISPOSITION BY THE COURT OF CLAIMS. EACH OF THE PLAINTIFFS WAS RETIRED PRIOR TO JUNE 1, 1942; SERVED ON ACTIVE DUTY AFTER RETIREMENT; WAS RELEASED FROM SUCH ACTIVE DUTY AFTER JUNE 1, 1942, AND, LIKE DANIELSON AND CARROLL, CLAIMED THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. UNLIKE THE PLAINTIFFS IN THE DANIELSON AND CARROLL CASES, GORDON, FIELD AND SHERFEY DID NOT INCUR PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY SUBSEQUENT TO RETIREMENT. THE RETURN OF EACH OF THEM TO THE RETIRED LIST WAS SIMPLY A RELEASE FROM ACTIVE DUTY. THE COURT CONCLUDED, HOWEVER, BASING ITS DECISION ON THE DANIELSON AND CARROLL CASES, THAT EACH OF SUCH OFFICERS WAS "RE-RETIRED" AS OF THE TIME OF HIS RELEASE FROM ACTIVE DUTY. EACH OFFICER, THEREFORE, WAS HELD TO BE "HEREAFTER RETIRED" WITHIN THE SCOPE OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND ENTITLED TO THE BENEFITS GRANTED BY THAT PARAGRAPH.

WE HAVE NO FURTHER ARGUMENT TO SUGGEST WHICH WE FEEL WOULD INDUCE THE COURT TO REVERSE THE POSITION IT HAS TAKEN IN THESE CASES AND WE HAVE BEEN ADVISED INFORMALLY THAT THE DEPARTMENT OF JUSTICE DOES NOT CONTEMPLATE FURTHER COURT PROCEEDINGS IN ANY CASE OF THIS TYPE IN VIEW OF THE DENIAL BY THE UNITED STATES SUPREME COURT OF THE APPLICATION FOR A WRIT OF CERTIORARI IN THE FIELD AND SHERFEY CASES. WE HAVE, THEREFORE, CONCLUDED THAT WE WILL FOLLOW THE RULE ESTABLISHED BY THE DECISIONS OF THE COURT IN THE GORDON, FIELD AND SHERFEY CASES IN TAKING ACTION ON OTHER SIMILAR CASES INVOLVING THE APPLICATION OF THE FOURTH PARAGRAPH OF SECTION 15. SUCH CASES NOW PENDING IN THE COURT WILL BE SETTLED IN OUR CLAIMS DIVISION UPON RECEIPT OF A CLAIM AND NOTICE THAT A MOTION TO DISMISS THE COURT ACTION HAS BEEN FILED WITH THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING ACTION ON THE CLAIM BY THIS OFFICE.

THE DECISIONS OF THE COURT IN THE BAILEY AND TRAVIS CASES EXTEND THE "RE- RETIREMENT" CONCEPT TO PERSONS ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF SECTION 402(D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818. THE OFFICERS THERE INVOLVED SERVED ON ACTIVE DUTY AFTER RETIREMENT AND WERE RELEASED FROM ACTIVE DUTY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, OCTOBER 1, 1949. ALSO, IN EACH CASE THE COURT ALLOWED RETIRED PAY UNDER SECTION 402(D) OF THE CAREER COMPENSATION ACT, AFTER ELECTION UNDER SECTION 411 OF THAT ACT, ON THE BASIS THAT THE RETIRED OFFICER'S RELEASE FROM ACTIVE DUTY WAS A RETIREMENT, OR SECOND RETIREMENT. AS A RESULT, EACH OFFICER RECEIVED INCREASED RETIRED PAY BECAUSE OF INACTIVE TIME ON THE RETIRED LIST.

THE SELIGA CASE, WHILE NOT A "RE-RETIREMENT CASE", INVOLVES THE SAME STATUTORY PROVISIONS AND IS THEREFORE FOR CONSIDERATION WITH THE BAILEY AND TRAVIS CASES. SELIGA WAS TRANSFERRED TO THE FLEET RESERVE IN 1932 AND WAS CALLED BACK TO ACTIVE DUTY IN 1940. IN 1945 HE WAS RETIRED FOR PHYSICAL DISABILITY, 100 PER CENTUM, INCURRED DURING HIS ACTIVE DUTY. ELECTED UNDER SECTION 411 OF THE CAREER COMPENSATION ACT TO RECEIVE PAY UNDER SECTION 402(D) OF THAT ACT, AND THE COURT ALLOWED HIM CREDIT FOR HIS INACTIVE TIME AS A MEMBER OF THE FLEET RESERVE.

THE DECISIONS OF THE COURT IN THESE CASES, IN OUR OPINION, ARE INCONSISTENT WITH THE PROVISIONS OF SECTION 202(B) OF THE CAREER COMPENSATION ACT, 63 STAT. 808, WHICH PROHIBIT THE COUNTING OF INACTIVE TIME ON THE RETIRED LIST OR IN THE FLEET RESERVE TO INCREASE RETIRED PAY, "EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT." THE QUOTED PHRASE APPEARS TO HAVE REFERENCE TO THE LAST PROVISO OF SECTION 402(D) UNDER WHICH RETIRED PAY MAY BE INCREASED BY REASON OF INACTIVE TIME ON THE RETIRED LIST IF DISABILITY, AS INDICATED IN THAT PROVISO, IS INCURRED WHILE SERVING ON ACTIVE DUTY. WE HAVE NOT FOUND WHERE THIS RELATIONSHIP BETWEEN SECTION 202(B) AND THE LAST PROVISO OF SECTION 402(D) HAS BEEN BROUGHT TO THE ATTENTION OF THE COURT. IN THE DEFENDANT'S BRIEF IN OPPOSITION TO THE PLAINTIFF'S MOTION FOR A NEW TRIAL IN THE TRAVIS CASE IT WAS ARGUED TO THE COURT THAT ITS "RE RETIREMENT" THEORY LEFT THE LAST PROVISO OF SECTION 402(D) APPLICABLE TO NO ONE. WE AGREE WITH THE PROPOSITION THAT THE COURT HAS, BY ITS ADOPTION OF THE "RE-RETIREMENT" CONCEPT IN INTERPRETING SECTION 402(D), GIVEN THE FIRST PART OF THAT SECTION THE EFFECT OF GRANTING TO RETIRED PERSONS, RETURNING TO AN INACTIVE STATUS, CREDIT FOR INACTIVE TIME ON THE RETIRED LIST WITHOUT REGARD TO THE SPECIFIC STATUTORY PROVISIONS (LAST PROVISO OF SECTION 402(D)) ENACTED TO FIX A PERSON'S RIGHTS UNDER SUCH CIRCUMSTANCES. (COMPARE, ALSO, SECTION 516 OF THE CAREER COMPENSATION ACT AUTHORIZING THE COUNTING OF ACTIVE DUTY AFTER RETIREMENT TO INCREASE RETIRED PAY. IF EACH RELEASE FROM ACTIVE DUTY AS A RETIRED OFFICER IS A "RE-RETIREMENT", SECTION 516, LIKE THE LAST PROVISO OF SECTION 402(D) WOULD SEEM TO BE APPLICABLE TO NO ONE.) NOTWITHSTANDING THE STATEMENTS MADE IN THE DEFENDANT'S BRIEF IN THE TRAVIS CASE, THE COURT MAKES NO MENTION OF THE LAST PROVISO OF SECTION 402(D) IN ITS SECOND OPINION IN THAT CASE.

WHILE THE FACTS IN THE CASES OF BAILEY AND TRAVIS MAY HAVE WARRANTED PAYMENT OF THEIR CLAIMS UNDER THE LAST PROVISO OF SECTION 402(D), WE HAVE BEEN UNABLE TO FORMULATE TENABLE GENERAL RULES, FOR APPLICATION IN ALL OTHER DISABILITY RETIREMENT CASES, ON THE BASIS OF THE STATEMENTS MADE AND PRINCIPLES INDICATED IN THE COURT'S OPINIONS IN THE BAILEY AND TRAVIS CASES. IF BAILEY OR TRAVIS WAS "RE-RETIRED" WITHIN THE MEANING OF SECTION 402(D) WHEN HE WAS RELEASED TO INACTIVE DUTY, IT MUST BE PRESUMED THAT THE COURT WOULD HAVE REACHED THE SAME CONCLUSION IF HIS ACTIVE DUTY HAD EXTENDED PAST OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT. WE ARE FACED WITH THE PROBLEM OF DETERMINING WHICH RETIRED OFFICERS ARE ENTITLED TO THE BENEFITS OF THE LAST PROVISO OF SECTION 402(D). CONGRESS HAVE INTENDED THAT SUCH SPECIFIC PROVISIONS SHOULD APPLY TO PARTICULAR GROUPS OF RETIRED PERSONNEL. IN CONSIDERING WHETHER TO FORMULATE GENERAL RULES BASED ON THE COURT'S DECISIONS, WE HAVE BEEN UNABLE TO CLEARLY IDENTIFY THOSE GROUPS. WHILE WE ARE AWARE OF THE EFFORTS ALREADY MADE BY THE DEPARTMENT OF JUSTICE IN THE BAILEY, TRAVIS AND SELIGA CASES, AS WELL AS THE OTHER CASES INVOLVING "RE-RETIREMENT", SOME CLARIFICATION OF THE COURT'S CONCLUSIONS SEEMS REQUIRED TO INSURE PROPER APPLICATION OF ALL OF THE PROVISIONS OF SECTION 402(D). ACCORDINGLY, WE REQUEST THAT THE DEPARTMENT OF JUSTICE GIVE FURTHER CONSIDERATION TO THE MATTER OF TAKING FURTHER PROCEEDINGS IN SOME SIMILAR CASE INVOLVING THE PROVISIONS OF SECTION 402(D) WITH A VIEW TO OBTAINING SUCH CLARIFICATION. WE REQUEST, FURTHER THAT WE BE ADVISED WHETHER THE DEPARTMENT OF JUSTICE WILL ATTEMPT TO OBTAIN SUCH A CLARIFICATION.

WE WISH TO TAKE THIS OPPORTUNITY TO EXPRESS OUR APPRECIATION OF THE EXCELLENT COOPERATION OF THE PERSONNEL OF YOUR DEPARTMENT IN CONNECTION WITH THIS AND OTHER MATTERS WHICH HAVE BEEN BEFORE THE COURT OF CLAIMS.