B-140101, JUL. 22, 1959

B-140101: Jul 22, 1959

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DUKE: REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. YOU WERE RETIRED AS A COLONEL. YOUR RETIRED PAY APPARENTLY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT. WE HAVE CONSISTENTLY HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. ARE NOT ENTITLED TO THE BENEFITS OF THOSE PROVISIONS. THE ACTION TAKEN BY OUR CLAIMS DIVISION DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED. THERE ARE NOW PENDING IN THE COURT OF CLAIMS. THE CASES NOW BEFORE THE COURT ARE PAUL V.

B-140101, JUL. 22, 1959

TO COLONEL SPOTTSWOOD W. DUKE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1959, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

AS ALLEGED BY YOU, AND AS SHOWN IN VOLUME 2, 1959 ARMY REGISTER, AT PAGE 146, YOU WERE RETIRED AS A COLONEL, USAR, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948 (PUBLIC LAW 810), 62 STAT. 1087, EFFECTIVE MAY 31, 1954, AND YOUR RETIRED PAY APPARENTLY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT. YOU CLAIMED THE DIFFERENCE BETWEEN THE AMOUNT OF RETIRED PAY RECEIVED BY YOU SINCE RETIREMENT AND RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY AT THE TIME OF RETIREMENT UNDER THE 1942 ACT.

WE HAVE CONSISTENTLY HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT RESERVE OFFICERS RETIRED NOT BY REASON OF PHYSICAL DISABILITY, AS IN YOUR CASE, ARE NOT ENTITLED TO THE BENEFITS OF THOSE PROVISIONS. B-94125, JULY 27, 1950. THE COURT OF CLAIMS HAS TAKEN THE SAME VIEW IN ITS OPINIONS RENDERED IN BERRY V. UNITED STATES, 123 C.CLS. 530, AND REYNOLDS V. UNITED STATES, 125 C.CLS. 108.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

FOR YOUR INFORMATION, HOWEVER, THERE ARE NOW PENDING IN THE COURT OF CLAIMS, SEVERAL PETITIONS WHICH INVOLVE THE SAME STATUTORY PROVISIONS AND THE IDENTICAL ISSUES RAISED IN YOUR CLAIM. THE CASES NOW BEFORE THE COURT ARE PAUL V. BARNES, ET AL. V. UNITED STATES, C.CLS. NO. 236-59; WILLIAM H. ABRAMS, ET AL. V. UNITED STATES, C.CLS. 237-59, AND JOHN C. ABBOTT, ET AL. V. UNITED STATES, C.CLS. NO. 235 59. ..END :