B-141657, MAR. 29, 1960

B-141657: Mar 29, 1960

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22. WHEREIN CLAIM IS MADE ON BEHALF OF THE ABOVE-NAMED CLAIMANT FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE DUTY PAY OF HIS OFFICER RANK WHICH HE RECEIVED DURING WORLD WAR II. CLAIM IS MADE PURSUANT TO THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SUCH DECISIONS ARE STATED TO BE GORDON V. OFFICE RECORDS REVEAL THAT A SIMILAR CLAIM SUBMITTED BY THE CLAIMANT BASED ON THE SAME GROUNDS AND FOR THE SAME PERIOD AS THE PRESENT CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED APRIL 23. WILL BE CONSIDERED. WAS FOR THE STATED REASON THAT THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO THOSE OFFICERS OF THE REGULAR SERVICES WHO RETIRE AS SUCH OFFICERS.

B-141657, MAR. 29, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1959, WHEREIN CLAIM IS MADE ON BEHALF OF THE ABOVE-NAMED CLAIMANT FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE DUTY PAY OF HIS OFFICER RANK WHICH HE RECEIVED DURING WORLD WAR II, AND THE RETIRED PAY ACTUALLY RECEIVED BY THE CLAIMANT FROM OCTOBER 1, 1949, TO THE DATE OF SETTLEMENT. CLAIM IS MADE PURSUANT TO THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 368, AND THE DECISIONS OF THE COURT OF CLAIMS INTERPRETING SAID ACT. SUCH DECISIONS ARE STATED TO BE GORDON V. UNITED STATES, 134 C.CLS. 840; TRACY V. UNITED STATES, 136 C.CLS. 211; FIELD V. UNITED STATES, C.CLS. NO. 525-53, DECIDED JANUARY 15, 1958; AND SHERFEY V. UNITED STATES, C.CLS. NO. 324- 56, DECIDED JANUARY 15, 1958.

OFFICE RECORDS REVEAL THAT A SIMILAR CLAIM SUBMITTED BY THE CLAIMANT BASED ON THE SAME GROUNDS AND FOR THE SAME PERIOD AS THE PRESENT CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED APRIL 23, 1959. IN VIEW OF THIS YOUR LETTER OF DECEMBER 22, 1959, WILL BE CONSIDERED, IN EFFECT, AS A REQUEST FOR REVIEW OF THAT DISALLOWANCE.

THE ACTION TAKEN IN THE SETTLEMENT CERTIFICATE OF APRIL 23, 1959, WAS FOR THE STATED REASON THAT THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 APPLIES ONLY TO THOSE OFFICERS OF THE REGULAR SERVICES WHO RETIRE AS SUCH OFFICERS; IN OTHER WORDS, TO THOSE OFFICERS OF THE REGULAR NAVY WHO WERE APPOINTED, SERVED AND WERE RETIRED AS OFFICERS OF THE REGULAR NAVY, UNDER STATUTES RELATING TO OFFICERS OF THE REGULAR NAVY. COMPARE THE REASONING OF DECISION IN BERRY V. UNITED STATES, 123 C.CLS. 530, ON THIS ISSUE, AND IN DECISIONS OF THIS OFFICE IN 31 COMP. GEN. 529; 33 ID. 120.

SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, AND THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, ARE NOT RETIREMENT STATUTES BUT RELATE SOLELY TO THE METHOD OF COMPUTING THE RETIRED PAY OF MEMBERS OF THE ARMY, NAVY, ETC., WHO COME WITHIN THE EXPRESS TERMS OF EACH PROVISION.

IT IS OUR VIEW THAT THE CLAIMANT DOES NOT COME WITHIN THE "RETIREMENT" RULE OF THE GORDON, FIELD AND SHERFEY CASES FOR THE REASON THAT HE WAS RETIRED AS AN ENLISTED MAN. THE CLAIM REVEALS THAT HE WAS A RETIRED ENLISTED MAN (AND A FORMER FLEET RESERVIST) RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND PROMOTED TO TEMPORARY COMMISSIONED OFFICER RANK UNDER THE ACT OF JULY 24, 1941, SUPRA. HIS RIGHT TO RETIREMENT AND ACTUAL TRANSFER TO THE RETIRED LIST (BY REASON OF 30 YEARS' COMBINED ACTIVE AND INACTIVE FLEET RESERVE SERVICE) WAS UNDER STATUTES APPLICABLE TO ENLISTED MEN, ALTHOUGH HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE PAY BASIS OF HIS TEMPORARY COMMISSIONED RANK UPON SUBSEQUENT ADVANCEMENT ON THE RETIRED LIST. THE RIGHT TO RETIREMENT PAY WAS GOVERNED BY SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854B. HE WAS PLACED ON THE RETIRED LIST AS AN ENLISTED MAN UNDER STATUTORY PROVISIONS RELATING SOLELY TO ENLISTED MEN.

WHILE HE WAS ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK UPON RELEASE FROM ACTIVE DUTY AND THE TERMINATION OF HIS TEMPORARY APPOINTMENT AS AN OFFICER, AS PROVIDED IN THE ACT OF FEBRUARY 21, 1946, THAT ACT DID NOT ACCORD TO HIM THE RIGHT TO HAVE HIS RETIRED PAY COMPUTED UNDER STATUTES APPLICABLE TO OFFICERS. RATHER, SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, EXPRESSLY PROVIDED IN SUBSECTION (B) (1) THAT PERSONNEL OF THE RETIRED LIST WHO WERE ADVANCED TO HIGHER RANK PURSUANT TO SUBSECTION (A) SHOULD RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE (IN HIS CASE, TO RETIRED FLEET RESERVISTS) BUT BASED UPON SUCH HIGHER RANK. SEE 26 COMP. GEN. 5.

UNDER THE 1941 ACT, AS AMENDED BY THE 1946 ACT, THE TEMPORARY OFFICER APPOINTMENT OF THE CLAIMANT TERMINATED UPON RELEASE FROM ACTIVE DUTY AND IT IS OUR VIEW THAT THOSE ACTS CONTEMPLATED THAT THE CLAIMANT SHOULD REVERT TO INACTIVE STATUS ON THE RETIRED LIST IN HIS STATUS AS AN ENLISTED MAN. IF SUCH RELEASE FROM ACTIVE DUTY WAS A "RE-RETIREMENT," IT WAS IN THE CAPACITY OF AN ENLISTED MAN RATHER THAN AN OFFICER. THE ADVANCEMENT ON THE RETIRED LIST UNDER AUTHORITY OF THE 1946 ACT TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, HE HAD SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT DID NOT AFFECT THE METHOD OF COMPUTING HIS RETIRED PAY, THE PURPOSE OF SUCH ADVANCEMENT BEING ONLY TO PERMIT THE USE OF A HIGHER RATE OF PAY IN COMPUTING RETIRED PAY BY THE APPLICABLE FORMULA RELATING TO RETIRED FLEET RESERVISTS. SEE JAKWAY V. UNITED STATES, C.CLS. NO. 51-58, DECIDED JULY 13, 1959.

THEREFORE, IT MUST BE CONCLUDED THAT THE DISALLOWANCE OF APRIL 23, 1959, WAS PROPER AND IT IS SUSTAINED.