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B-141199, AUG. 20, 1962

B-141199 Aug 20, 1962
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KING: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. BETWEEN THAT WHICH HE HAD RECEIVED AS A LIEUTENANT (JG) AND THAT TO WHICH HE WOULD HAVE BEEN ENTITLED AS A LIEUTENANT. THE JUDGMENT IN FAVOR OF LIEUTENANT NUSSBAUMER WAS NOT ENTERED AS A RESULT OF A JUDICIAL DETERMINATION OF THE ISSUES INVOLVED BUT WAS BASED SOLELY ON AN ADMISSION OF LIABILITY BY THE DEFENDANT. COPIES OF WHICH ARE ENCLOSED. LIEUTENANT NUSSBAUMER'S RIGHT TO RETIRED PAY FOR THE PERIOD PRIOR TO THAT COVERED BY THE JUDGMENT CITED ABOVE IS FOR DETERMINATION IN ACCORDANCE WITH THE LAWS IN EFFECT AT THE TIME OF HIS RETIREMENT. WHEN HE WAS PROMOTED TO LIEUTENANT. HE WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY IN THE GRADE OF LIEUTENANT (JG) PURSUANT TO THE PROVISIONS OF SUBSECTION 8 (A) OF THE ACT OF JULY 24.

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B-141199, AUG. 20, 1962

TO MR. THOMAS H. KING:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1962, REFERRING TO THE JUDGMENT ENTERED IN FAVOR OF THE PLAINTIFF ON MARCH 9, 1962, IN THE CASE OF JOSEPH WILLIAM NUSSBAUMER V. UNITED STATES, CT.CL.NO. 447-59, IN THE AMOUNT OF $1,506 REPRESENTING AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD OCTOBER 1, 1953, TO MAY 31, 1956, BETWEEN THAT WHICH HE HAD RECEIVED AS A LIEUTENANT (JG) AND THAT TO WHICH HE WOULD HAVE BEEN ENTITLED AS A LIEUTENANT. YOU REQUESTED PAYMENT OF THE CLAIM PREVIOUSLY FILED BY YOU ON BEHALF OF LIEUTENANT NUSSBAUMER FOR THE SAME ADJUSTMENT COVERING THE PERIOD PRIOR TO OCTOBER 1, 1953, WHICH CLAIM HAD BEEN HELD IN ABEYANCE BY OUR CLAIMS DIVISION PENDING FINAL DISPOSITION OF THE OFFICER'S PETITION IN THE COURT.

THE JUDGMENT IN FAVOR OF LIEUTENANT NUSSBAUMER WAS NOT ENTERED AS A RESULT OF A JUDICIAL DETERMINATION OF THE ISSUES INVOLVED BUT WAS BASED SOLELY ON AN ADMISSION OF LIABILITY BY THE DEFENDANT. THAT JUDGMENT, THEREFORE, DOES NOT ESTABLISH LIEUTENANT NUSSBAUMER'S ENTITLEMENT TO THE ADJUSTMENT IN RETIRED PAY IN QUESTION FOR ANY PERIOD OTHER THAN THAT COVERED BY THE JUDGMENT. IN THIS CONNECTION SEE B 139166, NOVEMBER 3, 1961, AND B-143217, FEBRUARY 19, 1962, COPIES OF WHICH ARE ENCLOSED. SEE, ALSO, WARTHEN V. UNITED STATES, CT.CL.NO. 311-60, DECIDED JUNE 6, 1962.

LIEUTENANT NUSSBAUMER'S RIGHT TO RETIRED PAY FOR THE PERIOD PRIOR TO THAT COVERED BY THE JUDGMENT CITED ABOVE IS FOR DETERMINATION IN ACCORDANCE WITH THE LAWS IN EFFECT AT THE TIME OF HIS RETIREMENT. THE RECORD SHOWS THAT THE OFFICER SERVED AS A TEMPORARY LIEUTENANT (JG) FROM NOVEMBER 1, 1944, TO JULY 31, 1946, WHEN HE WAS PROMOTED TO LIEUTENANT, TEMPORARY. AUGUST 1, 1947, HE WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY IN THE GRADE OF LIEUTENANT (JG) PURSUANT TO THE PROVISIONS OF SUBSECTION 8 (A) OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 604, 34 U.S.C. 350G (A) (1946 ED.), WHICH READS AS FOLLOWS:

"/A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.'

IT APPEARS, AS ALLEGED IN THE PETITION, THAT AT THE TIME OF RETIREMENT IT WAS DETERMINED BY THE DEPARTMENT OF THE NAVY THAT HIS DISABILITY WAS INCURRED WHILE SERVING AS A LIEUTENANT (JG).

SECTION 10 OF THE ABOVE CITED ACT, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, 34 U.S.C. 350I (B) AND (E), (1946 ED.), AUTHORIZED THE RETIREMENT OF MEMBERS IN CIRCUMSTANCES SIMILAR TO THOSE OF LIEUTENANT NUSSBAUMER IN THE HIGHEST TEMPORARY GRADE AND RANK IN WHICH THEY HAD SERVED SATISFACTORILY PRIOR TO JUNE 30, 1946. SINCE LIEUTENANT NUSSBAUMER'S APPOINTMENT AND SERVICE IN THE TEMPORARY GRADE OF LIEUTENANT WERE ACCOMPLISHED AFTER JUNE 30, 1946, THAT PROVISION OF LAW GAVE HIM NO ADDITIONAL BENEFIT. THE ABOVE-CITED REQUIREMENT THAT SERVICE IN THE HIGHEST TEMPORARY GRADE MUST HAVE BEEN PERFORMED PRIOR TO JUNE 30, 1946, WAS REPEALED BY SECTION 4 (A) OF THE ACT OF MAY 31, 1956, CH. 348, 70 STAT. 222. LIEUTENANT NUSSBAUMER'SRETIRED PAY WAS ADJUSTED UNDER THE 1956 ACT BY THE DEPARTMENT OF THE NAVY AND SINCE JUNE 1, 1956, HE HAS BEEN IN RECEIPT OF RETIRED PAY COMPUTED ON THE GRADE OF LIEUTENANT. SECTION 5 OF THE ACT OF MAY 31, 1956, PROVIDES AS FOLLOWS:

"SEC. 5. NO PERSON IS ENTITLED TO ADVANCEMENT ON THE RETIRED LIST OR TO AN INCREASE IN RETIRED OR RETIREMENT PAY BECAUSE OF THIS ACT FOR ANY PERIOD BEFORE THE EFFECTIVE DATE OF THIS ACT.'

SECTION 312 (I) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 860, ALTHOUGH CITED IN THE PETITION, COULD FURNISH NO AUTHORITY FOR PAYMENT OF THE ADJUSTMENT IN RETIRED PAY CLAIMED SINCE THAT ACT WAS NOT APPROVED UNTIL AFTER LIEUTENANT NUSSBAUMER HAD BEEN RETIRED AND THE ACT HAD NO RETROACTIVE EFFECT. SEE THE DECISION OF MARCH 7, 1962, IN THE CASE OF BROZO V. UNITED STATES, CT.CL. NO. 224-60. FURTHERMORE, THAT PROVISION OF LAW DEALT ONLY WITH OFFICERS ON A PROMOTION LIST WHO HAD BEEN FOUND DISABLED PRIOR TO PROMOTION AND AUTHORIZED PAYMENT OF RETIRED PAY BASED ON THE GRADE TO WHICH SUCH OFFICERS HAD BEEN SELECTED. LIEUTENANT NUSSBAUMER HAD BEEN APPOINTED TO THE TEMPORARY GRADE OF LIEUTENANT ON AUGUST 1, 1946, AND THERE IS NO INDICATION IN THE RECORD THAT HE WAS ON A PROMOTION LIST AT THE TIME OF HIS RETIREMENT, AUGUST 1, 1947.

IN VIEW OF THE ACTION OF THE DEPARTMENT OF THE NAVY IN RETIRING LIEUTENANT NUSSBAUMER IN THE RANK OF LIEUTENANT (JG) AND THE ADMINISTRATIVE FINDING THAT HE INCURRED THE DISABILITY FOR WHICH RETIRED WHILE SERVING IN THAT RANK, THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF THE ADJUSTMENT CLAIMED.

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