B-142003, MAR. 18, 1960

B-142003: Mar 18, 1960

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21. THE RECORD SHOWS THAT YOU WERE RETIRED EFFECTIVE JANUARY 31. YOUR RETIRED PAY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT. YOUR LETTER STATES THAT YOU WERE ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY AT THE TIME OF YOUR RETIREMENT. WAS APPLICABLE IN YOUR CASE. YOU WERE RETIRED AS COLONEL. WE HAVE CONSISTENTLY HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. ARE NOT ENTITLED TO THE BENEFITS OF THESE PROVISIONS. THE COMPUTATION OF YOUR RETIRED PAY UNDER THE PROVISIONS CITED IS NOT AUTHORIZED. FOR YOUR INFORMATION THERE IS NOW PENDING IN THE COURT OF CLAIMS SEVERAL PETITIONS WHICH INVOLVE THE SAME STATUTORY PROVISIONS AND THE IDENTICAL ISSUES IN YOUR LETTER.

B-142003, MAR. 18, 1960

TO COLONEL WILLIAM H. SHIELDS, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1960, REQUESTING THAT YOUR RETIRED PAY FROM DATE OF RETIREMENT, FEBRUARY 1, 1954, BE RECOMPUTED UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368.

THE RECORD SHOWS THAT YOU WERE RETIRED EFFECTIVE JANUARY 31, 1954, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948 (PUBLIC LAW 810), 62 STAT. 1087, AND YOUR RETIRED PAY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT. YOUR LETTER STATES THAT YOU WERE ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF YOUR ACTIVE DUTY PAY AT THE TIME OF YOUR RETIREMENT, FOR THE REASON THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WAS APPLICABLE IN YOUR CASE, SINCE YOU SERVED ON ACTIVE DUTY WITH THE UNITED STATES ARMY FROM JUNE 22, 1917, TO DECEMBER 20, 1918, AND YOU WERE RETIRED AS COLONEL, UNITED STATES AIR FORCE.

WE HAVE CONSISTENTLY HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPLIES ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT RESERVE OFFICERS RETIRED NOT BY REASON OF PHYSICAL DISABILITY, AS IN YOUR CASE, ARE NOT ENTITLED TO THE BENEFITS OF THESE PROVISIONS. SEE 31 COMP. GEN. 293. THE COURT OF CLAIMS HAS TAKEN THE SAME VIEW IN ITS OPINIONS RENDERED IN BARRY V. UNITED STATES, 123 C.CLS. 530; REYNOLDS V. UNITED STATES, 125 C.CLS. 108, AND TRACY V. UNITED STATES, 136 C.CLS. 211.

ACCORDINGLY, THE COMPUTATION OF YOUR RETIRED PAY UNDER THE PROVISIONS CITED IS NOT AUTHORIZED.

FOR YOUR INFORMATION THERE IS NOW PENDING IN THE COURT OF CLAIMS SEVERAL PETITIONS WHICH INVOLVE THE SAME STATUTORY PROVISIONS AND THE IDENTICAL ISSUES IN YOUR LETTER. THE CASES NOW BEFORE THE COURT ARE PAUL V. BARNES, ET AL. V. UNITED STATES, C.CLS.NO. 236-59; WILLIAM H. ABRAMS, ET AL. V. UNITED STATES, C.CLS. 237-59, AND JOHN C. ABBOTT, ET AL. V. UNITED STATES, C.CLS.NO. 235-59.