B-142615, MAY 6, 1960

B-142615, MAY 6, 1960

TO MAJOR ALBERT LEE GARDNER, 01964, USMC, RETIRED:

YOUR LETTER OF APRIL 1, 1960, REQUESTS RECONSIDERATION OF SETTLEMENT DATED MARCH 29, 1960, WHICH DENIED YOUR CLAIM FOR INCREASED RETIRED PAY BASED ON INACTIVE TIME ON THE RETIRED LIST.

YOUR CLAIM WAS DENIED FOR THE STATED REASON THAT THE GORDON, FIELD AND SHERFEY CASES, ON WHICH DECISIONS YOUR CLAIM WAS BASED IN PART, INVOLVED OFFICERS WHO HAD MILITARY SERVICE DURING WORLD WAR I AND HAD BEEN RETIRED PRIOR TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942 AND HAD BEEN RECALLED TO ACTIVE DUTY AFTER RETIREMENT AND SUBSEQUENTLY RELEASED FROM SUCH ACTIVE DUTY BETWEEN JUNE 1, 1942, AND SEPTEMBER 30, 1949 (THE DATE PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802). THOSE MEMBERS WERE CONSIDERED BY THE COURT TO HAVE BEEN ,RE-RETIRED" AND TO COME UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SINCE YOU DID NOT HAVE SERVICE DURING WORLD WAR I, THE SETTLEMENT CONCLUDED THAT THE COURT CASES ON WHICH YOU BASED YOUR CLAIM AFFORD NO BASIS FOR THE INCREASE OF YOUR RETIRED PAY.

YOU STATE THAT YOU HAVE A JUST AND LEGITIMATE CLAIM FOR INCREASED RETIRED PAY UNDER THE RE-RETIREMENT CONCEPT OF RECENT DECISIONS, AND IN EFFECT, YOU CONTEND THAT ANYONE RECALLED TO ACTIVE DUTY AFTER RETIREMENT FOR DISABILITY AND WHO WAS SUBSEQUENTLY RELEASED TO INACTIVE DUTY WAS "RE- RETIRED" AND HENCE ENTITLED TO USE A PERCENTAGE MULTIPLE OF 75 PERCENT IN THE COMPUTATION OF HIS RETIRED PAY WITH THE INACTIVE TIME SPENT ON THE RETIRED LIST INCLUDED IN THE BASIC PAY FACTOR, WHETHER OR NOT THE MEMBER HAD SERVICE IN WORLD WAR I.

THE "RE-RETIREMENT" CONCEPT AROSE IN THE DANIELSON CASE, 121 C.CLS. 553, INVOLVING AN OFFICER WHO HAD MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED FOR DISABILITY ON JULY 31, 1935. HE WAS RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER ON JULY 17, 1941, AND RELIEVED FROM SUCH DUTY ON JUNE 30, 1946. THE COURT HELD THAT IN THE COMPUTATION OF HIS RETIRED PAY AFTER THE LATTER DATE, HE WAS ENTITLED TO INCLUDE FOR LONGEVITY CREDIT HIS INACTIVE RETIRED TIME FROM AUGUST 1, 1935, TO JUNE 16, 1941. THIS HOLDING WAS ON THE THEORY THAT HE WAS "RE-RETIRED" ON JUNE 30, 1946, AND THUS WAS AN OFFICER "HEREAFTER RETIRED" WITHIN THE CONTEMPLATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AND WAS ENTITLED TO 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS "RE-RETIREMENT," WHICH PAY INCLUDED LONGEVITY CREDIT FOR INACTIVE TIME ON THE RETIRED LIST. SEE 37 COMP. GEN. 31 AND 39 ID. 152.

THE "RE-RETIREMENT" CONCEPT HAS BEEN APPLIED BY THE COURT IN VARIOUS DECISIONS SINCE DANIELSON, IN BOTH DISABILITY AND NONDISABILITY CASES. HOWEVER, UNDER THOSE DECISIONS THE MEMBER HAD TO HAVE SERVICE PRIOR TO NOVEMBER 12, 1918, IN ORDER TO COMPUTE HIS RETIRED PAY AT 75 PERCENT OF HIS ACTIVE DUTY PAY UNDER PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AND TO COUNT INACTIVE SERVICE ON THE RETIRED LIST IN THE BASIC PAY FACTOR. ALSO, A MEMBER RETIRED FOR DISABILITY WHO WAS RELEASED FROM ADDITIONAL ACTIVE DUTY PRIOR TO OCTOBER 1, 1949, AND WHO ELECTED TO HAVE HIS RETIRED PAY COMPUTED UNDER METHOD A OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, MAY INCLUDE INACTIVE TIME SPENT ON THE RETIRED LIST IN ESTABLISHING THE ACTIVE DUTY PAY FACTOR TO BE USED IN THE COMPUTATION OF HIS RETIRED PAY.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, PROVIDES THAT THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, THEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.

SECTION 411, CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 823, PROVIDED THAT PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, A MEMBER OF THE UNIFORMED SERVICES RETIRED PRIOR TO OCTOBER 12, 1949, FOR PHYSICAL DISABILITY WHO WAS THEN RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY MIGHT ELECT TO QUALIFY FOR AND, IF QUALIFIED, RECEIVE THE DISABILITY RETIREMENT PAY PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT.

SECTION 402 (D) OF THE SAME STATUTE PROVIDED IN PERTINENT PART THAT:

"A MEMBER OF THE UNIFORMED SERVICES * * * WHO IS RETIRED PURSUANT TO THE PROVISIONS OF THIS TITLE, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY COMPUTED, AT HIS ELECTION, BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE OR RATING HELD BY HIM AT THE TIME OF * * * HIS RETIREMENT * * * BY (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED * * * MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY * * * AT THE TIME OF RETIREMENT * * *.'

PURSUANT TO THE AUTHORITY GRANTED BY SECTION 411, THE PRESIDENT, ON APRIL 25, 1950, ISSUED EXECUTIVE ORDER 10124 EFFECTIVE OCTOBER 1, 1949. SECTION 3 OF THE EXECUTIVE ORDER IS AS FOLLOWS:

"EACH MEMBER AND EACH FORMER MEMBER OF THE UNIFORMED SERVICES TO WHICH SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 IS APPLICABLE SHALL CONTINUE TO RECEIVE RETIRED PAY OR RETIREMENT PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, UNLESS, PURSUANT TO THE SAID SECTION 411, HE ELECTS A DIFFERENT METHOD OF PAYMENT PRIOR TO OCTOBER 1, 1954, AND QUALIFIES FOR SUCH METHOD.'

THE RECORD SHOWS YOU WERE ON ACTIVE DUTY PRIOR TO NOVEMBER 12, 1918; THAT YOU WERE INITIALLY RETIRED FOR PHYSICAL DISABILITY ON AUGUST 1, 1935, WITH 12 YEARS, 10 MONTHS AND 12 DAYS OF ACTIVE SERVICE; RECALLED TO ACTIVE DUTY MAY 22, 1942, AND RELEASED TO INACTIVE DUTY ON OCTOBER 23, 1945, HAVING COMPLETED 16 YEARS, 3 MONTHS AND 14 DAYS OF ACTIVE SERVICE AND 6 YEARS, 9 MONTHS AND 21 DAYS OF INACTIVE SERVICE ON THE RETIRED LIST.

THERE IS NOTHING IN THE RECORD TO SUGGEST THAT YOU SUBMITTED AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. UNDER THAT ACT YOU WERE ENTITLED TO EITHER SAVED RETIRED PAY UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, OR RETIRED PAY COMPUTED ON THE PERCENTAGE OF YOUR DISABILITY, 30 PERCENT, OR THAT COMPUTED AS 2 1/2 PERCENT OF YOUR MONTHLY BASIC PAY TIMES THE NUMBER OF YEARS OF YOUR ACTIVE SERVICE. SINCE YOUR RETIRED PAY UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949, WAS GREATER THAN THAT COMPUTED UNDER SECTION 411, SUCH PAY WAS SAVED TO YOU UNDER PROVISIONS OF SECTION 519 OF THE CAREER COMPENSATION ACT OF 1949.

YOU HAVE BEEN PAID RETIRED PAY FOR THE PERIOD OCTOBER 24, 1945, TO JUNE 30, 1946, AT $234.38 PER MONTH, WHICH IS 75 PERCENT OF $312.50, THE PAY OF A MAJOR WITH OVER 15 YEARS ACTIVE SERVICE UNDER THE PAY READJUSTMENT ACT OF 1942; FROM JULY 1, 1946, TO SEPTEMBER 30, 1949, AT $257.82 PER MONTH, OR 75 PERCENT OF $343.75, THE PAY OF A MAJOR WITH OVER 15 YEARS' SERVICE UNDER PUBLIC LAW 474-79TH CONGRESS; FROM OCTOBER 1, 1949, TO APRIL 30, 1952, AT $257.82 PER MONTH, WHICH IS "SAVED PAY," AS NO ELECTION WAS MADE UNDER SECTION 411; FROM MAY 1, 1952, TO MARCH 31, 1955, AT $268.13 PER MONTH, FORMER RETIRED PAY OF $257.82, INCREASED BY FOUR PERCENT UNDER SECTION 2 (B) OF PUBLIC LAW 346-82D CONGRESS; FROM APRIL 1, 1955, TO MAY 31, 1958, AT $284.22 PER MONTH, FORMER RETIRED PAY OF $268.13, INCREASED BY SIX PERCENT AS AUTHORIZED BY SECTION 6 OF THE CAREER INCENTIVE ACT OF 1955, PUBLIC LAW 20--- 84TH CONGRESS; AND FROM JUNE 1, 1958, TO CURRENT DATE AT $301.27 PER MONTH, FORMER RETIRED PAY OF $284.22 INCREASED BY SIX PERCENT UNDER SECTION 4 (A) OF PUBLIC LAW 85-422. SINCE YOU HAD NO SERVICE PRIOR TO NOVEMBER 12, 1918, WE KNOW OF NO AUTHORITY FOR PAYMENT TO YOU OF RETIRED PAY GREATER THAN THAT WHICH YOU HAVE RECEIVED FOR THE PERIOD FROM NOVEMBER 24, 1949, TO THE PRESENT, BASED ON THE INCLUSION OF INACTIVE TIME ON THE RETIRED LIST.