B-140088, JUL. 24, 1959

B-140088: Jul 24, 1959

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PORTER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. THE DISALLOWANCE STATED THAT THE ABOVE STATUTORY PROVISION IS NOT A RETIREMENT STATUTE BUT RELATES SOLELY TO THE METHOD OF COMPUTING RETIRED PAY OF CERTAIN "OFFICERS" AND YOUR RETIREMENT WAS PURSUANT TO STATUTES APPLICABLE TO ENLISTED FLEET RESERVISTS. YOU STATE IN YOUR LETTER THAT IT IS TRUE THAT YOU RETIRED AS AN ENLISTED MAN BUT A YEAR OR SO LATER YOU WERE PLACED ON THE RETIRED LIST AS A PERMANENT CHIEF WARRANT OFFICER RETROACTIVE TO DATE OF RETIREMENT AND THEREFORE. YOU BELIEVE YOU ARE ENTITLED TO THE INCREASED RETIRED PAY HELD TO BE DUE RETIRED OFFICERS WHO QUALIFIED UNDER THE RULING IN OUR DECISION OF SEPTEMBER 30. IT WAS HELD THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT.

B-140088, JUL. 24, 1959

TO MR. CHARLES E. PORTER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, REQUESTING REVIEW OF CLAIMS DIVISION'S SETTLEMENT OF MAY 20, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY, RETIRED, AS CHIEF BOATSWAIN.

THE DISALLOWANCE STATED THAT THE ABOVE STATUTORY PROVISION IS NOT A RETIREMENT STATUTE BUT RELATES SOLELY TO THE METHOD OF COMPUTING RETIRED PAY OF CERTAIN "OFFICERS" AND YOUR RETIREMENT WAS PURSUANT TO STATUTES APPLICABLE TO ENLISTED FLEET RESERVISTS. YOU STATE IN YOUR LETTER THAT IT IS TRUE THAT YOU RETIRED AS AN ENLISTED MAN BUT A YEAR OR SO LATER YOU WERE PLACED ON THE RETIRED LIST AS A PERMANENT CHIEF WARRANT OFFICER RETROACTIVE TO DATE OF RETIREMENT AND THEREFORE, YOU BELIEVE YOU ARE ENTITLED TO THE INCREASED RETIRED PAY HELD TO BE DUE RETIRED OFFICERS WHO QUALIFIED UNDER THE RULING IN OUR DECISION OF SEPTEMBER 30, 1958, B- 137364.

IN THE CASE OF BERRY V. UNITED STATES, 123 C.CLS. NO. 530 AND REYNOLDS V. UNITED STATES, 125 C.CLS. 108, IT WAS HELD THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT. YOU WERE RETIRED AS A MEMBER OF THE FLEET RESERVE WHICH WAS EXPRESSLY INCLUDED IN SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, AS A COMPONENT OF THE NAVAL RESERVE. FURTHERMORE, AS STATED IN THE DISALLOWANCE, YOU WERE RETIRED AS AN ENLISTED MAN BUT PURSUANT TO SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE 1946 ACT, 60 STAT. 26-28, YOU BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST RANK ATTAINED (CHIEF WARRANT OFFICER). IT HAS BEEN HELD THAT A FLEET RESERVIST, RETIRED UNDER SIMILAR CIRCUMSTANCES WAS RETIRED IN THE "OFFICE" OF AN ENLISTED MAN, AND, AS SUCH, IS NOT ELIGIBLE FOR THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT. SEE 26 COMP. GEN. 5; 36 ID. 8. THE ACTION OF THE CLAIMS DIVISION IS SUSTAINED.