B-142980, AUG. 30, 1961

B-142980: Aug 30, 1961

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KING AND KING: REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 9. KOCZYNSKI'S CLAIM FOR INCREASED RETIRED PAY WAS DISALLOWED IN SETTLEMENT DATED FEBRUARY 12. YOU WERE ADVISED THAT THIS OFFICE WOULD GIVE NO FURTHER CONSIDERATION TO THE MATTER UNTIL THE CONCLUSION OF THE JUDICIAL PROCEEDINGS THEN PENDING IN THE CASE OF CLARK. THOSE PROCEEDINGS HAVE NOW BECOME FINAL AND YOU SPECIFICALLY REQUEST THAT MR. KOCZYNSKI WAS RECALLED TO ACTIVE DUTY EFFECTIVE MARCH 21. HE WAS APPOINTED A COMMISSIONED WARRANT OFFICER FOR TEMPORARY SERVICE IN FEBRUARY 1944 AND A LIEUTENANT. HE WAS RELEASED TO INACTIVE DUTY AND EFFECTIVE AUGUST 1. HE WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY. HE REQUESTED TO BE RESTORED AND WAS RESTORED (UNDER AUTHORITY OF THE LAST PROVISO CONTAINED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

B-142980, AUG. 30, 1961

TO LAW OFFICES, KING AND KING:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 9, 1960, AND MARCH 24, 1961, RELATIVE TO THE RETIRED PAY STATUS OF MR. WILLIAM J. KOCZYNSKI, AN ENLISTED MEMBER OF THE UNITED STATES NAVY, RETIRED. MR. KOCZYNSKI'S CLAIM FOR INCREASED RETIRED PAY WAS DISALLOWED IN SETTLEMENT DATED FEBRUARY 12, 1957, AND IN LETTER OF AUGUST 25, 1960, B-142980, YOU WERE ADVISED THAT THIS OFFICE WOULD GIVE NO FURTHER CONSIDERATION TO THE MATTER UNTIL THE CONCLUSION OF THE JUDICIAL PROCEEDINGS THEN PENDING IN THE CASE OF CLARK, ET AL. V. UNITED STATES, CT.CL.NO. 45-55, DECIDED JUNE 8, 1960. THOSE PROCEEDINGS HAVE NOW BECOME FINAL AND YOU SPECIFICALLY REQUEST THAT MR. KOCZYNSKI'S RETIRED PAY ACCOUNT BE ADJUSTED FOR THE PERIOD FROM AUGUST 1, 1950, TO DATE, THE ADJUSTMENT TO BE COMPUTED ON THE GRADE OF COMMISSIONED WARRANT OFFICER.

MR. KOCZYNSKI WAS RECALLED TO ACTIVE DUTY EFFECTIVE MARCH 21, 1941, AS A MEMBER OF THE FLEET RESERVE. HE WAS APPOINTED A COMMISSIONED WARRANT OFFICER FOR TEMPORARY SERVICE IN FEBRUARY 1944 AND A LIEUTENANT, JUNIOR GRADE, FOR TEMPORARY SERVICE IN MAY 1945, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JULY 24, 1941, 55 STAT. 603. ON FEBRUARY 3, 1946, HE WAS RELEASED TO INACTIVE DUTY AND EFFECTIVE AUGUST 1, 1950, HE WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY. UPON ADVANCEMENT ON AUGUST 3, 1950--- RETROACTIVE TO AUGUST 1, 1950--- TO COMMISSIONED OFFICER GRADE ON THE RETIRED LIST (AS PROVIDED BY THE ACT OF JULY 24, 1941, AS AMENDED, BY THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28) HIS RETIRED PAY STATUS AS A COMMISSIONED OFFICER CAME WITHIN THE RESTRICTIONS IMPOSED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. HE REQUESTED TO BE RESTORED AND WAS RESTORED (UNDER AUTHORITY OF THE LAST PROVISO CONTAINED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829) TO HIS FORMER RETIRED ENLISTED STATUS EFFECTIVE AUGUST 30, 1950.

THE RECORD SHOWS THAT MR. KOCZYNSKI HAS RECEIVED RETIRED PAY COMPUTED ON THE BASIS OF HIS ENLISTED GRADE FROM AUGUST 30, 1950, AND IN REQUESTING RECONSIDERATION OF HIS CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF COMMISSIONED WARRANT OFFICER, IT IS REQUESTED THAT HE BE PAID SUCH RETIRED PAY IN FULL BASED ON THAT GRADE FOR THE PERIOD AUGUST 1 TO 29, 1950 (THIS PART OF THE CLAIM IS BASED ON THE ACT OF MAY 27, 1954, 68 STAT. 140) AND INCREASED RETIRED PAY REPRESENTING THE DIFFERENCE BETWEEN ENLISTED AND COMMISSIONED WARRANT OFFICER RETIRED PAY FOR THE PERIOD FROM AUGUST 30, 1950, TO DATE UNDER THE HOLDING IN THE CLARK CASE.

THE COURT HELD IN THE CLARK CASE THAT AN ENLISTED PERSON WHO HAD BEEN TEMPORARILY APPOINTED TO WARRANT OFFICER GRADE AND THEN TO COMMISSIONED OFFICER GRADE WHILE SERVING ON ACTIVE DUTY AND SUBSEQUENTLY ADVANCED ON THE RETIRED LIST TO COMMISSIONED OFFICER GRADE WAS NOT REQUIRED TO REVERT TO AN ENLISTED STATUS ON THE RETIRED LIST BUT ONLY TO THE GRADE OF WARRANT OFFICER "THE HIGHEST RANK ON THE RETIRED LIST IN WHICH HE HAD SERVED SATISFACTORILY, AND IN WHICH HE WOULD RECEIVE THE HIGHEST RETIRED PAY WHICH HE COULD RECEIVE WITHOUT COMING WITHIN THE TERMS OF THE ECONOMY ACT.' ALTHOUGH THAT CONCLUSION WAS BASED ON THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505, A LIKE CONCLUSION APPEARS WARRANTED UNDER THE SIMILAR PROVISIONS CONTAINED IN THE LAST PROVISO OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER ACTION WILL BE TAKEN IN OTHER LIKE CASES WITH RESPECT TO THE BASIC ISSUE DECIDED IN THE CLARK CASE, NAMELY, THE RIGHT TO COMPUTE RETIRED PAY UNDER AUTHORITY OF SECTION 3 OF THE 1948 LAW AND BY NECESSARY IMPLICATION UNDER THE SIMILAR PROVISIONS OF THE LAST PROVISO CONTAINED IN SECTION 511 OF THE 1949 LAW, ON THE BASIS OF THE HIGHEST TEMPORARY GRADE HELD AND IN WHICH SATISFACTORY SERVICE WAS PERFORMED WHILE ON ACTIVE DUTY WHICH IS NOT SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT.

OTHER THAN THE GRADE OF LIEUTENANT, JUNIOR GRADE, THE HIGHEST TEMPORARY GRADE HELD BY MR. KOCZYNSKI WHILE ON ACTIVE DUTY WAS THE GRADE OF COMMISSIONED WARRANT OFFICER (HIS SERVICE AS A COMMISSIONED WARRANT OFFICER IS PRESUMED TO BE SATISFACTORY IN VIEW OF HIS SUBSEQUENT SATISFACTORY SERVICE AS A LIEUTENANT, JUNIOR GRADE). UNDER THE RULE OF TATO V. UNITED STATES, 136 CT.CL. 651 (1956) AND ATKINS, ET AL. V. UNITED STATES, 141 CT.CL. 88 (1958) COMMISSIONED WARRANT OFFICERS ARE NOT WITHIN THE PURVIEW OF SECTION 212. THEREFORE, UNDER THE HOLDING IN THE CLARK CASE MR. KOCZYNSKI IS ENTITLED TO INCREASED RETIRED PAY EFFECTIVE FROM AUGUST 30, 1950, THE DATE HE WAS RESTORED TO AN ENLISTED STATUS ON THE RETIRED LIST, COMPUTED ON THE BASIS OF HIS TEMPORARY GRADE OF COMMISSIONED WARRANT OFFICER. THAT PORTION OF HIS CLAIM WILL BE ALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE.

AS HERETOFORE STATED, MR. KOCZYNSKI WAS PLACED ON THE RETIRED LIST ON AUGUST 1, 1950, ADVANCED TO COMMISSIONED OFFICER GRADE ON AUGUST 3, 1950, RETROACTIVE TO AUGUST 1, 1950, AND ON HIS APPLICATION WAS RESTORED TO ENLISTED STATUS ON THE RETIRED LIST ON AUGUST 30, 1950. HE HAS NOT RECEIVED ANY RETIRED PAY FOR THE PERIOD AUGUST 1 TO 29, 1950, INCLUSIVE. THE CLAIM PRESENTED FOR RETIRED PAY COVERING THIS PERIOD IS ADVANCED UNDER THE ACT OF MAY 27, 1954, 68 STAT. 140. MR. KOCZYNSKI WAS RESTORED TO AN ENLISTED STATUS ON THE RETIRED LIST ON AUGUST 30, 1950, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 AND NOT UNDER AUTHORITY OF SECTION 3 OF THE ACT OF JUNE 19, 1948. HENCE, HIS CLAIM FOR RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF COMMISSIONED WARRANT OFFICER FOR THE PERIOD AUGUST 1 TO 29, 1950, MAY NOT BE ALLOWED SINCE THE ACT OF MAY 27, 1954, LIMITS ITS BENEFITS TO THOSE INDIVIDUALS "WHO WERE RESTORED TO THEIR FORMER RETIRED ENLISTED OR WARRANT OFFICER STATUS * * * PURSUANT TO SECTION 3 OF THE ACT APPROVED JUNE 19, 1948.'