B-141489, MAR. 16, 1960

B-141489: Mar 16, 1960

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. YOU HAVE BEEN IN THE RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY AS A COMMANDER WITH OVER 14 YEARS OF CREDITABLE SERVICE. THE COURT OF CLAIMS DECIDED THAT HE WAS "RE-RETIRED" UPON HIS RELEASE FROM ACTIVE DUTY AS A RETIRED OFFICER SUBSEQUENT TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942. THAT HE WAS "HEREAFTER RETIRED" WITHIN THE CONTEMPLATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THAT ACT (56 STAT. 368). THUS WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING AT THAT TIME. SUCH PROVISIONS OF LAW ARE NOT APPLICABLE IN YOUR CASE SINCE THEY COVER ONLY OFFICERS WHO SERVED IN ANY CAPACITY "AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12.

B-141489, MAR. 16, 1960

TO COMMANDER ROY B. STRATTON, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1959, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY ON THE BASIS OF LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST.

THE RECORDS SHOW THAT SUBSEQUENT TO YOUR TRANSFER TO THE RETIRED LIST OF OFFICERS OF THE UNITED STATES NAVY ON FEBRUARY 1, 1936, UNDER THE PROVISIONS OF 34 U.S.C. 417, YOU SERVED ON ACTIVE DUTY FROM OCTOBER 9, 1940, TO JULY 15, 1945, AT WHICH TIME YOU HAD COMPLETED 14 YEARS, 5 MONTHS AND 5 DAYS OF CREDITABLE (ACTIVE FEDERAL) SERVICE FOR RETIRED PAY PURPOSES. THE RECORD FURTHER SHOWS THAT SINCE YOUR RELEASE FROM ACTIVE DUTY ON JULY 15, 1945, YOU HAVE BEEN IN THE RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY AS A COMMANDER WITH OVER 14 YEARS OF CREDITABLE SERVICE. EFFECTIVE OCTOBER 1, 1949, YOU CONTINUED TO RECEIVE SUCH RETIRED PAY, IN A SAVED PAY STATUS, PLUS THE INCREASES PROVIDED BY SUBSEQUENT LEGISLATION.

YOU REFER TO THE CASE OF DANIELSON V. UNITED STATES, 121 C.CLS. 533, AND REQUEST THAT YOUR CLAIM BE RE-EXAMINED IN THE LIGHT OF THAT CASE.

THE DANIELSON CASE INVOLVED AN OFFICER OF THE ARMY WHO HAD BEEN RETIRED PRIOR TO JUNE 1, 1942 (THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359), FOR DISABILITY AND WHO HAD SUFFERED ADDITIONAL DISABILITY OF NOT LESS THAN 30 PERCENTUM WHILE SUBSEQUENTLY SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE. SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, PROVIDED THAT UNDER SUCH CIRCUMSTANCES AN OFFICER OF THE REGULAR ARMY SHOULD BE PROMOTED ON THE RETIRED LIST TO THE HIGHER GRADE AND RECEIVE RETIRED PAY BASED ON THAT GRADE. DANIELSON HAD MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, HAD SERVED ON ACTIVE DUTY IN WORLD WAR II AFTER HIS RETIREMENT, AND HAD BEEN RELIEVED FROM SUCH ACTIVE DUTY PRIOR TO OCTOBER 1, 1949. THE COURT OF CLAIMS DECIDED THAT HE WAS "RE-RETIRED" UPON HIS RELEASE FROM ACTIVE DUTY AS A RETIRED OFFICER SUBSEQUENT TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, AND HENCE, THAT HE WAS "HEREAFTER RETIRED" WITHIN THE CONTEMPLATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THAT ACT (56 STAT. 368), AND THUS WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY WHICH HE WAS RECEIVING AT THAT TIME, AS PROVIDED IN THAT ACT, WHICH PAY INCLUDED LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST BETWEEN THE DATE OF HIS RETIREMENT AND DATE OF RECALL TO ACTIVE DUTY. SUCH PROVISIONS OF LAW ARE NOT APPLICABLE IN YOUR CASE SINCE THEY COVER ONLY OFFICERS WHO SERVED IN ANY CAPACITY "AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.' YOU DID NOT ENTER THE SERVICE UNTIL JUNE 3, 1926.

IT IS CLEAR THAT THE DANIELSON CASE AFFORDS NO PRECEDENT FOR THE PAYMENT OF YOUR CLAIM AND WE KNOW OF NO AUTHORITY OF LAW OR COURT DECISION FOR ITS ALLOWANCE. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.