B-141643, FEB. 24, 1960

B-141643: Feb 24, 1960

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19. NAVAL RESERVE WAS FEBRUARY 8. SINCE YOUR CLAIM IS SIMILAR TO THAT INITIALLY ADVANCED IN YOUR LETTER OF JANUARY 31. IT WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT OF MARCH 2. WHO WAS THEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHOULD. YOUR CLAIM FOR THE ADDITIONAL RETIRED PAY UNDER THAT PROVISION IS BASED ON SERVICE IN THE ARMED FORCES PRIOR TO NOVEMBER 12. WE HAVE CONSISTENTLY HELD THAT THE CITED PROVISIONS OF SECTION 15 OF THE 1942 ACT APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT RESERVE OFFICERS RETIRED NOT BY REASON OF PHYSICAL DISABILITY ARE NOT ENTITLED TO THE BENEFITS OF THOSE PROVISIONS. 31 COMP.

B-141643, FEB. 24, 1960

TO COMMANDER H. WRAY ROHRMAN, USNR, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1959, IN WHICH YOU ADVISE THAT THE ACTUAL DATE OF YOUR RETIREMENT AS AN OFFICER OF THE U.S. NAVAL RESERVE WAS FEBRUARY 8, 1954, RATHER THAN OCTOBER 30, 1953, THE DATE PREVIOUSLY INDICATED IN YOUR LETTER OF JANUARY 31, 1959, AND IN WHICH YOU CLAIM ADDITIONAL RETIRED PAY FROM THE DATE OF YOUR RETIREMENT, COMPUTED ON THE BASIS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115. SINCE YOUR CLAIM IS SIMILAR TO THAT INITIALLY ADVANCED IN YOUR LETTER OF JANUARY 31, 1959, IT WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT OF MARCH 2, 1959, WHICH DISALLOWED SUCH INITIAL CLAIM.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDED THAT THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT WHO HAD SERVED AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHO WAS THEREAFTER RETIRED UNDER ANY PROVISION OF LAW SHOULD, UNLESS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT. YOUR CLAIM FOR THE ADDITIONAL RETIRED PAY UNDER THAT PROVISION IS BASED ON SERVICE IN THE ARMED FORCES PRIOR TO NOVEMBER 12, 1918, AND YOUR RETIREMENT AS AN OFFICER OF THE NAVAL RESERVE.

WE HAVE CONSISTENTLY HELD THAT THE CITED PROVISIONS OF SECTION 15 OF THE 1942 ACT APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT RESERVE OFFICERS RETIRED NOT BY REASON OF PHYSICAL DISABILITY ARE NOT ENTITLED TO THE BENEFITS OF THOSE PROVISIONS. 31 COMP. GEN. 293. 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. CONSEQUENTLY, YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF MARCH 2, 1959, FOR THE REASON THAT YOU WERE RETIRED AS A NAVAL RESERVE OFFICER RATHER THAN AS AN OFFICER OF THE REGULAR NAVY, AND THEREFORE THAT YOU COULD NOT BE CONSIDERED AS ENTITLED TO BENEFITS UNDER THE 1942 ACT. THAT CONCLUSION IS CLEARLY REQUIRED UNDER THE LAW. ACCORDINGLY, UPON REVIEW, THE SETTLEMENT IS SUSTAINED.