B-140288, OCT. 7, 1959

B-140288: Oct 7, 1959

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JULY 8. THE RECORDS IN YOUR CASE SHOW THAT YOU WERE RECALLED TO ACTIVE DUTY FROM A RETIRED STATUS AS A CHIEF MACHINIST. WERE RELEASED FROM SUCH DUTY ON JULY 3. AT WHICH TIME YOU WERE ENTITLED TO. WERE RECEIVING. IT IS STATED IN SUCH DECISION THAT WE WOULD ACCEPT AND FOLLOW THE COURT'S DECISIONS IN THE CASES OF GORDON V. HOLDING THAT AN OFFICER WHO IS RETIRED AND SUBSEQUENTLY RECALLED TO ACTIVE DUTY IS. SINCE YOU WERE RESTORED TO THE RETIRED ROLLS ON JULY 4. THE RECORD SHOWS THAT YOU HAVE BEEN IN RECEIPT OF THE MAXIMUM RETIRED PAY (75 PERCENT) AUTHORIZED FOR CHIEF WARRANT OFFICER WITH OVER 30 YEARS' SERVICE. YOU HAVE RECEIVED AN ADDITIONAL SIX PERCENTUM EFFECTIVE JUNE 1.

B-140288, OCT. 7, 1959

TO MR. FRANK CARTER, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1959, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 13, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY BASED ON OUR DECISION B-137364, DATED SEPTEMBER 30, 1958.

THE RECORDS IN YOUR CASE SHOW THAT YOU WERE RECALLED TO ACTIVE DUTY FROM A RETIRED STATUS AS A CHIEF MACHINIST, UNITED STATES NAVY, ON FEBRUARY 9, 1942, AND WERE RELEASED FROM SUCH DUTY ON JULY 3, 1945, AT WHICH TIME YOU WERE ENTITLED TO, AND WERE RECEIVING, THE ACTIVE DUTY PAY OF A CHIEF MACHINIST WITH OVER 30 YEARS' SERVICE.

IN YOUR REQUEST FOR RECONSIDERATION YOU AGAIN MAKE GENERAL REFERENCE TO OUR DECISION B-137364, DATED SEPTEMBER 30, 1958,AND APPARENTLY YOU BELIEVE SUCH DECISION OPERATES TO INCREASE BENEFITS ALREADY BEING PAID YOU. FOR YOUR INFORMATION, IT IS STATED IN SUCH DECISION THAT WE WOULD ACCEPT AND FOLLOW THE COURT'S DECISIONS IN THE CASES OF GORDON V. UNITED STATES, 134 C.CLS. 840; FIELD V. UNITED STATES, 158 F.SUPP. 580; AND SHERFEY V. UNITED STATES, 157 F.SUPP. 936, HOLDING THAT AN OFFICER WHO IS RETIRED AND SUBSEQUENTLY RECALLED TO ACTIVE DUTY IS, UPON RELEASE FROM ACTIVE TY,"RE-RETIRED" WITHIN THE MEANING OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368.

SUCH HOLDING COULD NOT AUTHORIZE, IN ANY EVENT, MORE THAN THE MAXIMUM RATE OF RETIRED PAY THAT COULD BE PAID YOU UNDER APPLICABLE STATUTES. SINCE YOU WERE RESTORED TO THE RETIRED ROLLS ON JULY 4, 1945, THE RECORD SHOWS THAT YOU HAVE BEEN IN RECEIPT OF THE MAXIMUM RETIRED PAY (75 PERCENT) AUTHORIZED FOR CHIEF WARRANT OFFICER WITH OVER 30 YEARS' SERVICE. IN ADDITION, UNDER PUBLIC LAW 85-422, MAY 20, 1958, YOU HAVE RECEIVED AN ADDITIONAL SIX PERCENTUM EFFECTIVE JUNE 1, 1958, WHICH GIVES YOU THE MAXIMUM MONTHLY GROSS RETIRED PAY OF $421.67, FOR YOUR RATING AND AMOUNT OF SERVICE. WE KNOW OF NO AUTHORITY FOR PAYMENT TO YOU OF RETIRED PAY GREATER THAN THE MAXIMUM WHICH YOU NOW RECEIVE.