B-140176, OCT. 15, 1959

B-140176: Oct 15, 1959

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF JUNE 5. THE COMPTROLLER GENERAL IS AUTHORIZED TO DETERMINE THE AGGREGATE AMOUNT OF PAY AND ALLOWANCES. WHICH WOULD HAVE ACCRUED TO SUCH OFFICER "IF SUCH SECTION (201) HAD NOT BEEN APPLIED IN HIS CASE (EXCEPT AS TO LONGEVITY) AND PAY TO SUCH OFFICER THE AMOUNT SO DETERMINED.'. ON THE SAME DATE HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT. THE CLAIM OF THE OFFICER IS FOR INCREASED RETIRED PAY "WHICH HE DID NOT RECEIVE UPON ADVANCEMENT IN RANK TO LIEUTENANT ON OCTOBER 1. TO WHICH HE IS ENTITLED UNDER P.L. 85- 255.'. AN OFFICER IS ENTITLED TO PAYMENT OF THE INCREASED PAY AND ALLOWANCES BY REASON OF ADVANCEMENT IN RANK WHICH HE DID NOT RECEIVE AT THE TIME OF ADVANCEMENT BY REASON OF THE APPLICATION IN HIS CASE OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30.

B-140176, OCT. 15, 1959

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1959, WHEREIN, ON BEHALF OF LIEUTENANT COMMANDER EDGAR T. HAMMOND, YOU REQUEST REVIEW OF OUR SETTLEMENT DATED MARCH 19, 1958, WHICH DISALLOWED HIS CLAIM FOR ADDITIONAL PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 1, 1932, TO JUNE 30, 1934, UNDER THE PROVISIONS OF PUBLIC LAW 85-255, APPROVED SEPTEMBER 2, 1957, 71 STAT. 575.

THE ACT OF SEPTEMBER 2, 1957, PROVIDES THAT UPON APPLICATION OF ANY OFFICER OR FORMER OFFICER OF THE SERVICES MENTIONED IN THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 625, WHO, UPON ADVANCEMENT IN RANK, DID NOT RECEIVE AN INCREASE IN THE RATES OF PAY AND ALLOWANCES FOR ANY PART OF THE PERIOD BEGINNING JULY 1, 1932, AND ENDING JUNE 30, 1934 (EXCEPT CERTAIN LONGEVITY INCREASES), BY REASON OF THE APPLICATION IN THE CASE OF SUCH OFFICER OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, THE COMPTROLLER GENERAL IS AUTHORIZED TO DETERMINE THE AGGREGATE AMOUNT OF PAY AND ALLOWANCES, IN ADDITION TO THAT OTHERWISE ACCRUING, WHICH WOULD HAVE ACCRUED TO SUCH OFFICER "IF SUCH SECTION (201) HAD NOT BEEN APPLIED IN HIS CASE (EXCEPT AS TO LONGEVITY) AND PAY TO SUCH OFFICER THE AMOUNT SO DETERMINED.'

IT APPEARS FROM THE INFORMATION AVAILABLE HERE THAT THE CLAIMANT RETIRED AS CHIEF BOATSWAIN ON OCTOBER 1, 1932. ON THE SAME DATE HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT, THE HIGHEST RANK HELD BY HIM DURING WORLD WAR I, UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JUNE 21, 1930, 46 STAT. 793. THE CLAIM OF THE OFFICER IS FOR INCREASED RETIRED PAY "WHICH HE DID NOT RECEIVE UPON ADVANCEMENT IN RANK TO LIEUTENANT ON OCTOBER 1, 1932, AND TO WHICH HE IS ENTITLED UNDER P.L. 85- 255.'

UNDER PUBLIC LAW 85-255, AN OFFICER IS ENTITLED TO PAYMENT OF THE INCREASED PAY AND ALLOWANCES BY REASON OF ADVANCEMENT IN RANK WHICH HE DID NOT RECEIVE AT THE TIME OF ADVANCEMENT BY REASON OF THE APPLICATION IN HIS CASE OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932. HOWEVER, THE OFFICER'S RIGHT TO ANY INCREASED PAY AND ALLOWANCES MUST BE DETERMINED UNDER THE LAWS OTHERWISE IN EFFECT AT THE TIME OF HIS ADVANCEMENT IN RANK. AS STATED ABOVE, THE OFFICER WAS ADVANCED IN RANK TO LIEUTENANT ON OCTOBER 1, 1932, THE DATE OF HIS RETIREMENT, UNDER THE ACT OF JUNE 21, 1930, AND WAS SUBJECT TO THE INHIBITION IN SECTION 1 OF THE ACT TO THE EFFECT THAT "NO INCREASE OF ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT" BY REASON OF SUCH ADVANCEMENT IN RANK ON THE RETIRED LIST. THEREFORE, ANY LOSS OF PAY AND ALLOWANCES IN CONNECTION WITH HIS ADVANCEMENT IN RANK TO LIEUTENANT ON OCTOBER 1, 1932, IS NOT ATTRIBUTABLE TO SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, BUT TO THE RESTRICTION IN THE LAW UNDER WHICH HE WAS ADVANCED IN RANK, AND NO ADDITIONAL AMOUNT MAY BE PAID HIM UNDER THE PROVISIONS OF PUBLIC LAW 85-255.

AS YOU POINT OUT, THE ABOVE-MENTIONED ACT OF JUNE 21, 1930, WAS REPEALED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 667. HOWEVER, COMMANDER HAMMOND'S RIGHTS ARE FOR DETERMINATION UNDER THE LAWS IN EFFECT DURING THE PERIOD COVERED BY HIS CLAIM (EXCEPT THE PROVISIONS OF SECTION 201 OF THE 1932 ACT) AND, HENCE, THE REPEAL OF THE 1930 ACT DID NOT OPERATE TO REMOVE THE RESTRICTION ON INCREASED PAY AND ALLOWANCES INCIDENT TO ADVANCEMENTS IN RANK UNDER THAT ACT, FOR PERIODS WHILE IT WAS IN EFFECT. FURTHERMORE, SECTION 49 (F) OF THE 1956 ACT PROVIDES THAT THE ENACTMENT OF THAT ACT DOES NOT INCREASE OR DECREASE THE PAY OR ALLOWANCES, INCLUDING RETIRED PAY, OF ANY PERSON.

ACCORDINGLY, THE SETTLEMENT OF MARCH 19, 1958, WAS CORRECT AND IS SUSTAINED.