B-140597, OCT. 5, 1959

B-140597: Oct 5, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RETIRED: REFERENCE IS MADE TO LETTER OF AUGUST 12. YOU WERE RETIRED AS A RESERVE OFFICER WITH THE RANK OF COLONEL. YOUR RETIRED PAY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT. IN THAT CASE THE OFFICER WAS CLAIMING ADDITIONAL RETIRED PAY BY REASON OF "PHYSICAL DISABILITY" UNDER THE PROVISIONS OF SECTIONS 402 (B). BENEFITS OR PRIVILEGES TO ANY OTHER MEMBER OF THE ARMED FORCES WHO IS NOT A MEMBER OF A REGULAR COMPONENT AND WHO IS RETIRED. OR TO WHOM RETIRED PAY IS GRANTED. YOUR CASE IS DISTINGUISHABLE FROM THE JAKWAY CASE. SINCE YOU WERE RETIRED NOT BY REASON OF PHYSICAL DISABILITY BUT BY REASON OF AGE AND LENGTH OF SERVICE UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29.

B-140597, OCT. 5, 1959

TO COLONEL BURDETTE A. PALMER, USAF, RETIRED:

REFERENCE IS MADE TO LETTER OF AUGUST 12, 1959, FROM MR. ROBERT F. KLEPINGER, YOUR ATTORNEY, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT MARCH 12, 1959, 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.

IT APPEARS FROM THE RECORDS BEFORE US, AND AS SHOWN IN AIR FORCE REGISTER, 1958, AT PAGE 586, YOU WERE RETIRED AS A RESERVE OFFICER WITH THE RANK OF COLONEL, UNITED STATES AIR FORCE, EFFECTIVE JUNE 29, 1948, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948 (PUBLIC LAW 810), 62 STAT. 1087, AND YOUR RETIRED PAY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT.

OUR CLAIMS DIVISION DENIED YOUR CLAIM SUBSTANTIALLY FOR THE REASON THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, APPLY ONLY TO OFFICERS OF THE REGULAR COMPONENTS.

IN REQUESTING REVIEW OF YOUR CLAIM, YOUR ATTORNEY RELIES ON THE COURT OF CLAIMS DECISION IN THE CASE OF CLYDE C. JAKWAY V. UNITED STATES, C.CLS. NO. 51-58, DECIDED JULY 13, 1959. IN THAT CASE THE OFFICER WAS CLAIMING ADDITIONAL RETIRED PAY BY REASON OF "PHYSICAL DISABILITY" UNDER THE PROVISIONS OF SECTIONS 402 (B), 402 (D) AND 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817-820. SECTION 402 (I/--- NOW SECTION 1215, TITLE 10, U.S. CODE--- EXPRESSLY PROVIDES THAT

"THE LAWS AND REGULATIONS THAT ENTITLE ANY RETIRED MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES TO PAY, RIGHTS, BENEFITS, OR PRIVILEGES EXTEND THE SAME PAY, RIGHTS, BENEFITS OR PRIVILEGES TO ANY OTHER MEMBER OF THE ARMED FORCES WHO IS NOT A MEMBER OF A REGULAR COMPONENT AND WHO IS RETIRED, OR TO WHOM RETIRED PAY IS GRANTED, BECAUSE OF PHYSICAL DISABILITY.'

YOUR CASE IS DISTINGUISHABLE FROM THE JAKWAY CASE, SINCE YOU WERE RETIRED NOT BY REASON OF PHYSICAL DISABILITY BUT BY REASON OF AGE AND LENGTH OF SERVICE UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948. HENCE, THAT CASE PROVIDES NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.

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. 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. NO. 237-59, AND JOHN C. ABBOTT, ET AL. V. UNITED STATES, C.CLS. NO. 235-59. ..END :