B-137602, SEP. 17, 1963

B-137602: Sep 17, 1963

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FOR RETIRED PAY FOR THE REASON THAT THIS OFFICE IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9. FROM CONSIDERING CLAIMS WHICH ARE NOT RECEIVED HERE WITHIN 10 YEARS FROM THE TIME OF ACCRUAL. REYNOLDS RETIRED AS AN ENLISTED MAN AND WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMISSIONED WARRANT OFFICER. HIS RETIRED PAY WAS WITHHELD WHILE HE WAS EMPLOYED IN A CIVILIAN CAPACITY BY THE FEDERAL GOVERNMENT UNDER THE BELIEF THAT HE WAS SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932. THE COURT HELD THAT COMMISSIONED WARRANT OFFICERS ARE NOT SUBJECT TO THE ECONOMY ACT RESTRICTIONS AND IN THE CASE OF ATKINS. THE COURT DECIDED THAT THE RESTORATIONS FROM COMMISSIONED OFFICER GRADES MADE AS A RESULT OF ERRONEOUS CONSTRUCTION OF THE ECONOMY ACT ARE NOT BINDING.

B-137602, SEP. 17, 1963

TO KING AND KING:

YOUR LETTER DATED JULY 11, 1963, IN EFFECT REQUESTS REVIEW OF THE SETTLEMENTS OF OUR CLAIMS DIVISION DATED AUGUST 1, 1958, AND JUNE 8, 1960, WHICH DISALLOWED PORTIONS OF THE CLAIMS OF HARRY S. REYNOLDS. CWO (W-2), USN, RETIRED, FOR RETIRED PAY FOR THE REASON THAT THIS OFFICE IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FROM CONSIDERING CLAIMS WHICH ARE NOT RECEIVED HERE WITHIN 10 YEARS FROM THE TIME OF ACCRUAL. YOU CITE THE ACT OF MAY 27, 1954, CH. 224, 68 STAT. 140, 141, AS AUTHORITY FOR ALLOWANCE OF THE CLAIM.

THE RECORD DISCLOSES THAT MR. REYNOLDS RETIRED AS AN ENLISTED MAN AND WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMISSIONED WARRANT OFFICER. HIS RETIRED PAY WAS WITHHELD WHILE HE WAS EMPLOYED IN A CIVILIAN CAPACITY BY THE FEDERAL GOVERNMENT UNDER THE BELIEF THAT HE WAS SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406. IN THE CASE OF TATO V. UNITED STATES, 136 CT.CL. 651, THE COURT HELD THAT COMMISSIONED WARRANT OFFICERS ARE NOT SUBJECT TO THE ECONOMY ACT RESTRICTIONS AND IN THE CASE OF ATKINS, ET AL. V. UNITED STATES, 141 CT.CL. 88, THE COURT DECIDED THAT THE RESTORATIONS FROM COMMISSIONED OFFICER GRADES MADE AS A RESULT OF ERRONEOUS CONSTRUCTION OF THE ECONOMY ACT ARE NOT BINDING. CLAIM FOR RETIRED PAY PURSUANT TO THE TATO AND ATKINS DECISIONS WAS FIRST RECEIVED IN THIS OFFICE FEBRUARY 11, 1958, AND SETTLEMENT DATED AUGUST 1, 1958, ALLOWED RETIRED PAY FOR THE PERIOD FEBRUARY 11, 1948, THROUGH DECEMBER 31, 1953. THE REMAINDER OF THE CLAIM FOR THE PERIOD NOVEMBER 1, 1946, TO FEBRUARY 10, 1948, WAS DISALLOWED UNDER THE PROVISIONS OF THE OCTOBER 9, 1940 ACT. CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE ONE THIRD OF BASE PAY FORMULA ALLOWED BY SETTLEMENT DATED AUGUST 1, 1958, AND THE ONE- HALF OF BASE PAY FORMULA PURSUANT TO DECISIONS IN THE CASES OF SANDERS V. UNITED STATES, 120 CT.CL. 501, AND PABLO MOJICA, ET AL. V. UNITED STATES, 148 CT.CL. 474, WAS FIRST RECEIVED IN THIS OFFICE SEPTEMBER 18, 1958, AND SETTLEMENT DATED JUNE 8, 1960, ALLOWED THE DIFFERENCE IN RETIRED PAY FOR THE PERIOD SEPTEMBER 18, 1948, TO APRIL 30, 1960. CLAIM FOR SUCH DIFFERENCE IN RETIRED PAY PRIOR TO SEPTEMBER 18, 1948, WAS DISALLOWED UNDER THE 1940 BARRING ACT. YOUR REQUEST FOR REFUND OF ENLISTED RETIRED PAY WITHHELD FOR THE PERIOD FROM NOVEMBER 1, 1946, THROUGH FEBRUARY 10, 1948, CITING THE ACT OF MAY 27, 1954, IN EFFECT URGES THAT MR. REYNOLDS IS ONE OF THE PERSONS TO WHICH THE ACT APPLIES AND THAT HIS RIGHT TO RECEIVE RETIRED PAY FIRST ACCRUED WITH THE APPROVAL OF THAT ACT.

THE ACT OF MAY 27, 1954, BY ITS OWN TERMS IS APPLICABLE TO ONLY THOSE "ENLISTED MEN AND WARRANT OFFICERS HERETOFORE ADVANCED TO COMMISSIONED RANK OR GRADE ON THE RETIRED LIST * * * AND WHO WERE RESTORED TO THEIR FORMER RETIRED ENLISTED OR WARRANT OFFICER STATUS" UNDER AUTHORITY OF SECTION 3 OF THE ACT OF JUNE 19, 1948, CH. 540, 62 STAT. 505. CLEARLY MR. REYNOLDS IS NOT ONE OF THE PERSONS TO WHOM THE ACT APPLIES, SINCE HE WAS NEVER RESTORED TO HIS FORMER ENLISTED OR WARRANT OFFICER STATUS. WITHOUT ANY CHANGE IN HIS STATUS ON THE RETIRED LIST HE ALLOWED RETIRED PAY IN HIS RANK OF CHIEF WARRANT OFFICER UNDER THE HOLDING OF THE COURT IN THE TATO AND ATKINS DECISIONS. SINCE HIS RIGHT TO RETIRED PAY DID NOT ACCRUE PURSUANT TO THE PROVISIONS OF THE 1954 ACT, HE IS NOT ENTITLED TO THE BENEFITS OF THAT ACT.

SINCE THE COURT HAS DETERMINED THAT COMMISSIONED WARRANT OFFICERS WERE NOT SUBJECT TO THE ECONOMY ACT RESTRICTIONS MR. REYNOLDS HAD A RIGHT TO RECEIVE RETIRED PAY WITHOUT REDUCTION BECAUSE OF HIS CIVILIAN STATUS FROM THE TIME HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMISSIONED WARRANT OFFICER. UNDER THE WELL-ESTABLISHED RULE THAT THE RIGHT TO RETIRED PAY VESTS ON A DAY-TO-DAY BASIS, CONSIDERATION OF A CLAIM FOR SUCH PAY WHICH ACCRUED MORE THAN 10 YEARS PRIOR TO THE TIME CLAIM THEREFOR WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE IS PROHIBITED BY LAW. ACCORDINGLY, THE SETTLEMENTS WERE CORRECT AND MUST BE SUSTAINED.