B-139605, AUG. 3, 1959

B-139605: Aug 3, 1959

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BAKER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 17. ARE STILL NOT CONVINCED THAT THE LAW DOES NOT APPLY TO ALL RETIRED OFFICERS WHO SERVED PRIOR TO NOVEMBER 12. THEY ARE THAT AT THE TIME OF THE ENACTMENT OF THAT PROVISION THE RETIREMENT LAWS APPLICABLE TO OFFICERS OF THE REGULAR SERVICES GENERALLY WERE NOT APPLICABLE TO OFFICERS OF THE RESERVE COMPONENTS. CONGRESS PLAINLY DESIGNATED THOSE PROVISIONS WHICH WERE INTENDED TO APPLY TO THE RESERVE COMPONENTS AND THE OMISSION OF ANY REFERENCE TO SUCH RESERVE COMPONENTS IN THE SAID FOURTH PARAGRAPH. WHEN CONSIDERED IN CONNECTION WITH THE CAREFUL REFERENCES CONTAINED IN THE OTHER SECTIONS OF THAT ACT WAS EVIDENCE OF CONGRESSIONAL INTENT. THAT THE LEGISLATIVE HISTORY OF THE FOURTH PARAGRAPH SHOWS THAT IT WAS INTENDED TO PROVIDE FOR OFFICERS OF THE REGULAR NAVY AND THE OTHER SERVICES THE SAME BENEFITS PROVIDED FOR OFFICERS OF THE REGULAR ARMY UNDER THE ACT OF JUNE 13.

B-139605, AUG. 3, 1959

TO COLONEL PHILIP I. BAKER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1959, IN WHICH YOU AGAIN REQUEST RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY PURSUANT TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115.

YOU STATE YOU NOTED OUR LETTER OF JUNE 2, 1959, B-139605, BUT ARE STILL NOT CONVINCED THAT THE LAW DOES NOT APPLY TO ALL RETIRED OFFICERS WHO SERVED PRIOR TO NOVEMBER 12, 1918. IN ADDITION, YOU REQUEST CONSIDERATION OF YOUR CLAIM FOR SUCH INCREASES ON THE BASIS OF A VETERANS' ADMINISTRATION DETERMINATION OF 30 PERCENT SERVICE CONNECTED DISABILITY, MADE DECEMBER 16, 1957, WHICH YOU BELIEVE ENTITLES YOU TO DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949.

IN THE CASE OF BERRY V. UNITED STATES, 123 C.CLS. 530, REFERRED TO IN OUR LETTER OF JUNE 2, 1959, THE COURT OF CLAIMS LISTED THREE FACTORS WHICH LEAD IT TO CONCLUDE THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF SECTION 15 TO BE LIMITED TO OFFICERS OF THE REGULAR SERVICES NAMED IN THE TITLE OF THAT ACT. BRIEFLY, THEY ARE THAT AT THE TIME OF THE ENACTMENT OF THAT PROVISION THE RETIREMENT LAWS APPLICABLE TO OFFICERS OF THE REGULAR SERVICES GENERALLY WERE NOT APPLICABLE TO OFFICERS OF THE RESERVE COMPONENTS; THAT THROUGHOUT THE ENTIRE PAY READJUSTMENT ACT OF 1942, CONGRESS PLAINLY DESIGNATED THOSE PROVISIONS WHICH WERE INTENDED TO APPLY TO THE RESERVE COMPONENTS AND THE OMISSION OF ANY REFERENCE TO SUCH RESERVE COMPONENTS IN THE SAID FOURTH PARAGRAPH, WHEN CONSIDERED IN CONNECTION WITH THE CAREFUL REFERENCES CONTAINED IN THE OTHER SECTIONS OF THAT ACT WAS EVIDENCE OF CONGRESSIONAL INTENT, AND FINALLY, THAT THE LEGISLATIVE HISTORY OF THE FOURTH PARAGRAPH SHOWS THAT IT WAS INTENDED TO PROVIDE FOR OFFICERS OF THE REGULAR NAVY AND THE OTHER SERVICES THE SAME BENEFITS PROVIDED FOR OFFICERS OF THE REGULAR ARMY UNDER THE ACT OF JUNE 13, 1940, 54 STAT. 380, 10 U.S.C. 971 (B) (11946 EDITION). WE MENTIONED FURTHER IN THE PRIOR LETTER, THAT THE COURT STATED IN THE CASE OF REYNOLDS V. UNITED STATES, 125 C.CLS. 108, THAT THE LEGISLATIVE HISTORY OF THE CAREER COMPENSATION ACT OF 1949 SHOWS AN ABSENCE OF ANY INTENT ON THE PART OF CONGRESS TO PLACE A NEW INTERPRETATION ON SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THIS VIEW WAS AFFIRMED IN TRACY V. UNITED STATES, 136 C.CLS 211, WHEREIN THE COURT HELD THAT ONLY THOSE RESERVE OFFICERS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY WERE ELIGIBLE FOR CONSIDERATION UNDER PARAGRAPH 4, SECTION 15. SEE THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 60 STAT. 825. READING OF THESE DECISIONS WILL INDICATE CLEARLY THAT THE COURT OF CLAIMS, AS WELL AS THIS OFFICE, HAS INTERPRETED PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AS NOT BEING APPLICABLE TO RESERVE OFFICERS RETIRED FOR REASONS OTHER THEN PHYSICAL DISABILITY.

WITH RESPECT TO YOUR ADDITIONAL REQUEST FOR CONSIDERATION OF YOUR ENTITLEMENT TO SUCH INCREASE ON THE BASIS OF THE VETERANS ADMINISTRATION DETERMINATION OF SERVICE CONNECTED DISABILITY, YOU ARE ADVISED THAT THIS OFFICE HAS NO AUTHORITY TO DETERMINE ENTITLEMENT TO DISABILITY RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT, SUCH AUTHORITY BEING VESTED IN THE SECRETARY OF THE ARMY UNDER THE PROVISIONS OF SECTION 414 OF THAT ACT, 63 STAT. 825, 37 U.S.C. 284. SEE ALSO, E.O. 10122 DATED APRIL 14, 1950, 15 F.R. 2173. YOUR INQUIRY SHOULD BE DIRECTED TO THAT DEPARTMENT, WHICH AGENCY WILL ADVISE YOU AS TO THE PROCEDURE REQUIRED TO ESTABLISH YOUR RIGHT TO DISABILITY RETIREMENT PAY.