B-141688, JAN. 29, 1960

B-141688, JAN. 29, 1960

TO MR. WATSON BENGE, FINANCE OFFICER, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1959, FILE C-1 328 828, JOHNSON, OTIS H., CODE 72, 3072/242A, IN WHICH YOU REQUEST OUR VIEWS AS TO WHETHER MR. JOHNSON, WHO IS ON THE EMERGENCY OFFICER'S RETIRED LIST, IS ENTITLED TO RETIRED PAY IN THE GRADE OF LIEUTENANT COLONEL.

ENCLOSED WITH YOUR LETTER IS A LETTER DATED NOVEMBER 5, 1959, FROM MR. JOHNSON, IN WHICH HE STATES THAT HE WAS RETIRED UNDER THE PROVISIONS OF THE TYSON ACT OF 1928 (ACT OF MAY 24, 1928, 45 STAT. 735), AS CAPTAIN, AND SINCE THAT TIME HAS RECEIVED THE RETIRED PAY OF THAT RANK. HE FURTHER STATES THAT AT THE TIME OF HIS RETIREMENT HE HELD THE RESERVE RANK OF LIEUTENANT COLONEL, AND THAT BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF NERI V. UNITED STATES, C.CLS. NO. 81-58, DECIDED APRIL 8, 1959, HE CLAIMS THE RETIRED PAY OF A LIEUTENANT COLONEL. U.S. ARMY REGISTER, VOLUME II, JANUARY 1, 1959, PAGE 271, SHOWS THAT HE WAS GRANTED RETIRED PAY AS A CAPTAIN EFFECTIVE JUNE 1, 1928, UNDER THE 1928 ACT. WHILE OUR RECORDS DO NOT DISCLOSE WHETHER OR NOT MR. JOHNSON MADE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, IT IS ASSUMED THAT HE WAS NOT ENTITLED TO INCREASED RETIRED PAY UNDER THAT ACT SINCE HE CITES THE NERI CASE WHICH DID NOT INVOLVE A SECTION 411ELECTION.

THE PRESENT CLAIM IS SIMILAR TO THAT CONSIDERED IN THE CASE OF TALL V. UNITED STATES, 79 C.CLS. 251, HOLDING THAT THE PLAINTIFF WAS ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF THE GRADE FROM WHICH HE WAS RELEASED FROM ACTIVE DUTY AFTER WORLD WAR I, EVEN THOUGH HE HELD A HIGHER RESERVE GRADE AT THAT TIME AND FOR SOME YEARS THEREAFTER. IT WOULD APPEAR THAT MR. JOHNSON'S RIGHTS ARE GOVERNED BY THE DECISION IN THAT CASE. SEE ALSO, PERKINS V. UNITED STATES, 116 C.CLS. 778. THE DECISIONS OF THE COURT OF CLAIMS IN THE NERI CASE AND IN OTHER RECENT CASES INVOLVING THE SAME ISSUES, WERE REACHED ON THE BASIS OF DIFFERENT STATUTORY PROVISIONS RELATING TO THE RETIREMENT GENERALLY OF MEMBERS OF THE REGULAR AND RESERVE COMPONENTS OF THE ARMED FORCES. MR. JOHNSON WAS NOT RETIRED UNDER THOSE LAWS BUT WAS GRANTED RETIRED PAY PURSUANT TO THE 1928 ACT WHICH REQUIRED THAT HIS RETIRED PAY BE COMPUTED ON THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHEN HE WAS DISCHARGED FROM HIS WORLD WAR I SERVICE. PRESUMABLY, HE HAS RECEIVED SUCH RETIRED PAY, INCLUDING THE INCREASES PROVIDED BY LAW SINCE 1928. NO FURTHER AMOUNT APPEARS TO BE DUE HIM.

THE MATTER OF THE RIGHTS OF A PERSON WHO HELD A HIGHER RESERVE GRADE AT THE TIME HE WAS PLACED ON THE EMERGENCY OFFICER'S RETIRED LIST IN A LOWER GRADE UNDER THE 1928 ACT AND WHO HAD QUALIFIED FOR AND ELECTED TO RECEIVE HIGHER RETIRED PAY UNDER SECTION 411 OF THE 1949 ACT IS NOW PENDING BEFORE THE COURT OF CLAIMS IN THE CASE OF JAMES G. MCGRATH V. UNITED STATES, C.CLS. NO/441-59. IF MR. JOHNSON HAS QUALIFIED FOR ADDITIONAL RETIRED PAY UNDER METHOD (A) OF SECTION 411, ACTION ON HIS CLAIM SHOULD BE HELD IN ABEYANCE PENDING THE COURT'S DECISION IN THE MCGRATH CASE. SEE IN THIS CONNECTION OUR DECISION OF JULY 21, 1959, A-44840, COPY ENCLOSED.