B-144464, DECEMBER 29, 1960, 40 COMP. GEN. 387

B-144464: Dec 29, 1960

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BECAUSE HE WAS IN AN ACTIVE DUTY STATUS AT THAT TIME HAVING BEEN PREVIOUSLY RECALLED FROM AN INACTIVE STATUS ON THE RETIRED LIST. ACQUIRED NO RIGHT TO HAVE HIS RETIRED PAY COMPUTED UNDER EITHER OF THE OPTIONS IN SECTION 411. THE MEMBER'S RETIRED PAY IS FOR COMPUTATION UNDER 10 U.S.C. 1402 (A). THE EXCEPTION PRESCRIBED IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 TO THE PROHIBITION AGAINST THE INCLUSION OF INACTIVE TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY IS APPLICABLE TO TITLE IV OF THE ACT AND DOES NOT APPLY TO THE PROVISIONS OF SECTION 516 WHICH WERE CONTAINED IN TITLE V OF THE 1949 LAW. SINCE SECTION 516 WAS SUPERSEDED AND REPLACED BY 10 U.S.C. 1402 (A) WITHOUT SUBSTANTIVE CHANGE.

B-144464, DECEMBER 29, 1960, 40 COMP. GEN. 387

MILITARY PERSONNEL - RETIRED PAY - RECOMPUTATION TO REFLECT LATER ACTIVE DUTY THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR PHYSICAL DISABILITY TO ELECT TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE 1949 LAW OR TO RECEIVE RETIRED PAY COMPUTED BY ONE OF TWO METHODS PRESCRIBED IN SECTION 511 OF THE ACT EXPIRED ON OCTOBER 1, 1954, AND, THEREFORE, A MEMBER OF THE UNIFORMED SERVICES WHO SUBMITTED A SECTION 411 ELECTION SUBSEQUENT TO OCTOBER 1, 1954, BECAUSE HE WAS IN AN ACTIVE DUTY STATUS AT THAT TIME HAVING BEEN PREVIOUSLY RECALLED FROM AN INACTIVE STATUS ON THE RETIRED LIST, ACQUIRED NO RIGHT TO HAVE HIS RETIRED PAY COMPUTED UNDER EITHER OF THE OPTIONS IN SECTION 411; ACCORDINGLY, THE MEMBER'S RETIRED PAY IS FOR COMPUTATION UNDER 10 U.S.C. 1402 (A). THE EXCEPTION PRESCRIBED IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 TO THE PROHIBITION AGAINST THE INCLUSION OF INACTIVE TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY IS APPLICABLE TO TITLE IV OF THE ACT AND DOES NOT APPLY TO THE PROVISIONS OF SECTION 516 WHICH WERE CONTAINED IN TITLE V OF THE 1949 LAW; THEREFORE, SINCE SECTION 516 WAS SUPERSEDED AND REPLACED BY 10 U.S.C. 1402 (A) WITHOUT SUBSTANTIVE CHANGE, INACTIVE TIME ON THE RETIRED LIST MAY NOT BE INCLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR COMPUTATION OF RETIRED PAY UNDER 10 U.S.C. 1402 (A). SERVICE AS AN ENLISTED MEMBER OF A FEDERALLY RECOGNIZED UNIT OF A STATE NATIONAL GUARD CONSTITUTES A PERIOD OF ENLISTMENT IN THE "1NATIONAL GUARD" * * * AS DISTINGUISHED FROM MEMBERSHIP IN THE "INACTIVE NATIONAL GUARD * * *" AND THUS COMES WITHIN THE PURVIEW OF SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (A) (2), AND THEREFORE, SUCH INACTIVE NATIONAL GUARD SERVICE PROPERLY MAY BE INCLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY OF A MEMBER OF THE UNIFORMED SERVICES IN THE COMPUTATION OF RETURNED PAY UNDER 10 U.S.C. 1402 (A). UNDER FORMER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, WHICH WAS SUPERSEDED AND REPLACED BY 10 U.S.C. 1402 (A) WITHOUT SUBSTANTIVE CHANGE, IT WAS EXPRESSLY PROVIDED THAT THE MULTIPLIER FACTOR REFLECT THE YEARS OF SERVICE CREDITABLE FOR PURPOSES OF COMPUTING RETIRED PAY AT THE TIME OF RETIREMENT PLUS THE NUMBER OF YEARS OF ACTIVE DUTY PERFORMED AFTER RETIREMENT, THEREFORE THE MULTIPLIER FACTOR IN 10 U.S.C. 1402 (A) IS REQUIRED TO BE ESTABLISHED ON THE SAME BASIS, SO THAT A MEMBER OF THE UNIFORMED SERVICES WHO FOLLOWING A PERIOD OF ACTIVE DUTY AFTER RETIREMENT WAS RELEASED FROM THE SERVICE AFTER OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT--- MAY NOT COUNT INACTIVE TIME ON THE RETIRED LIST OR INACTIVE TIME IN THE NATIONAL GUARD IN ESTABLISHING THE MULTIPLIER FACTOR UNDER 10 U.S.C. 1402 (A). THE RELEASE FROM ACTIVE DUTY AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, OF A RETIRED COAST GUARD OFFICER WHO HAD NO SERVICE IN THE ARMED FORCES PRIOR TO NOVEMBER 12, 1918, DOES NOT CONSTITUTE A "RE-RETIREMENT" UNDER THE GORDON, FIELD, AND SHERFEY CASES (134 CT. CL. 840, 141 ID. 312 AND ID. 307, RESPECTIVELY), WHICH ARE BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, OR UNDER THE CARHART DECISION OF JULY 13, 1959 (1CT. CL. NO. 353-57), WHICH CONSTRUCTION RESTS ON SECTION 203 (F) OF THE ACT OF JUNE 29, 1948, WHICH DOES NOT APPLY TO COAST GUARD OFFICERS; MOREOVER, APPLICATION TO THE ,RE-RETIREMENT" CONCEPT IN THE CIRCUMSTANCES WOULD RENDER TOTALLY INEFFECTIVE THE PROVISIONS OF 10 U.S.C. 1402 (A) WHICH WERE SPECIFICALLY ENACTED TO GOVERN THE RECOMPUTATION OF RETIRED PAY OF PREVIOUSLY RETIRED MEMBERS NOT COVERED BY 10 U.S.C. 1402 (B) AND (C) WHO AFTER RECALL TO ACTIVE DUTY ARE RELEASED TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST.

TO C. C. GORDON, UNITED STATES COAST GUARD, DECEMBER 29, 1960:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2, 1960, ADDRESSED (APPARENTLY INADVERTENTLY) TO THE CLAIMS DIVISION OF THIS OFFICE AS A REQUEST FOR "DETERMINATION OF ENTITLEMENT"--- SEE 31 U.S.C. 82D--- REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS PROPER OF INCREASED RETIRED PAY FOR THE MONTH OF AUGUST 1960 ON VOUCHER (ENCLOSURE (1) OF YOUR LETTER) STATED IN FAVOR OF CAPTAIN QUENTIN R. WALSH, U.S. COAST GUARD, RETIRED. WE ALSO HAVE FOR CONSIDERATION IN THIS SAME MATTER THE STATEMENT DATED JULY 13, 1961 (ENCLOSURE (7) OF YOUR LETTER) TOGETHER WITH LETTER OF SEPTEMBER 6, 1960, ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE AND SUBMITTED ON BEHALF OF CAPTAIN WALSH BY HIS ATTORNEY.

THE RECORD SHOWS THAT CAPTAIN WALSH WAS AN ENLISTED MEMBER OF A FEDERALLY RECOGNIZED UNIT IN THE CONNECTICUT NATIONAL GUARD FROM APRIL 21, 1928, TO AUGUST 3, 1929, INCLUSIVE, AND THAT HE ATTENDED A PERIOD OF FIELD TRAINING FROM AUGUST 5 TO 19, 1928. EFFECTIVE FROM MAY 5, 1933, HE HAS HELD A COMMISSIONED STATUS IN THE UNITED STATES COAST GUARD REMAINING ON ACTIVE DUTY FROM THAT DATE TO MAY 31, 1946. HE WAS RETIRED FOR PHYSICAL DISABILITY ON JUNE 1, 1946, AND WAS INACTIVE ON THE RETIRED LIST TO FEBRUARY 1, 1951. HE WAS RECALLED TO ACTIVE DUTY EFFECTIVE FEBRUARY 2, 1951, AND ON AUGUST 1, 1960, HE REVERTED TO INACTIVE STATUS ON THE RETIRED LIST WITH THE GRADE OF CAPTAIN HAVING SERVED SATISFACTORILY IN SUCH GRADE UNDER A TEMPORARY APPOINTMENT.

IT IS STATED THAT CAPTAIN WALSH WAS PAID RETIRED PAY FOR THE MONTH OF AUGUST 1960 IN THE AMOUNT OF $433.81. THE VOUCHER SUBMITTED REFLECTS A CLAIM FOR RETIRED PAY AT THE RATE OF $591 PER MONTH COMPUTED UNDER THE PERCENTAGE OF DISABILITY FORMULA PRESCRIBED IN THE BASIC PROVISIONS OF FORMER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 (NOW CODIFIED IN 10 U.S.C. 1401) AND BASED ON THE ACTIVE DUTY RATES OF PAY IN EFFECT ON JULY 31, 1960, AT 60 PERCENT OF $985, THE MONTHLY BASIC PAY OF A CAPTAIN (OFFICER GRADE 10-6) WITH OVER 26 YEARS OF CREDITABLE SERVICE, ACTIVE AND INACTIVE. SUCH CLAIM IS PREDICATED ON A "SECTION 411" ELECTION THAT WAS EXECUTED BY CAPTAIN WALSH ON AUGUST 25, 1960, IT BEING STATED THAT AT THE EXPIRATION OF THE FIVE YEAR PERIOD PRESCRIBED IN SECTION 411 "1CAPTAIN WALSH WAS STILL ON ACTIVE DUTY, AND HAD NOT EXERCISED THE ELECTION.'

THE CAREER COMPENSATION ACT OF 1949, BECAME EFFECTIVE AS OF OCTOBER 1, 1949, AND SECTION 411 OF THAT ACT EXTENDED AN OPPORTUNITY TO ANY MEMBER OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY TO "ELECT WITHIN THE FIVE-YEAR PERIOD" FOLLOWING THE EFFECTIVE DATE OF THE ACT (A), TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF THE 1949 LAW OR (B) TO RECEIVE RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT. THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 TERMINATED OCTOBER 1, 1954. 34 COMP. GEN. 642, 645. IN CASES SUCH AS THIS (NOT INVOLVING A CORRECTION OF RECORDS UNDER 10 U.S.C. 1552), ELECTION UNDER SECTION 411 AFTER OCTOBER 1, 1954, IS WITHOUT ANY FORCE OR EFFECT AND, HENCE, THE ELECTION FORM EXECUTED BY CAPTAIN WALSH ON AUGUST 25, 1960, PRESENTS NO PROPER BASIS TO BRING HIM WITHIN THE SCOPE OF THOSE BASIC PROVISIONS OF FORMER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, NOW CODIFIED IN 10 U.S.C. 1401. IN THAT CONNECTION YOU DESIRE TO BE ADVISED WHETHER CAPTAIN WALSH'S DISABILITY RETIRED PAY STATUS, AS A MEMBER OF THE UNIFORMED SERVICES WHO HAS BEEN RETIRED AND WHO THEREAFTER HAS SERVED ON ACTIVE DUTY, COMES WITHIN THE SCOPE AND PURVIEW OF 10 U.S.C. 1402 (A). YOUR QUESTIONS (A) TO (E) ARE SET FORTH BELOW AND THE ANSWERS THERETO ARE STATED AFTER EACH QUESTION. IT IS UNDERSTOOD, INFORMALLY, THAT " SECTION 511" IN QUESTIONS (A) AND (B) SHOULD BE " SECTION 411.'

(A) WHETHER CAPTAIN WALSH IS ENTITLED TO MAKE AN ELECTION UNDER THE PROVISIONS OF SECTION 511 (411) OF THE CAREER COMPENSATION ACT OF 1949 OR MUST HIS RETIRED PAY BE COMPUTED PURSUANT TO THE PROVISIONS OF SECTION 1402 (A) OF TITLE 10?

THE RECORD INDICATES THAT CAPTAIN WALSH DID NOT EXERCISE A TIMELY ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. HENCE, HE HAS ACQUIRED NO RIGHT TO COMPUTE HIS RETIRED PAY UNDER OPTION (A) OR OPTION (B) OF SECTION 411. HIS RETIRED PAY, EFFECTIVE FROM AUGUST 1, 1960, IS TO BE COMPUTED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1402 (A).

(B) IF HE IS ENTITLED TO MAKE AN ELECTION UNDER THE PROVISIONS OF SECTION 511 (411) OF THE CAREER COMPENSATION ACT OF 1949, CAN TIME ON THE INACTIVE RETIRED LIST BE USED IN THE COMPUTATION OF BASIC PAY? CAN INACTIVE SERVICE IN THE NATIONAL GUARD BE USED IN THE COMPUTATION OF BASIC PAY?

THIS REQUIRES NO ANSWER IN VIEW OF THE REPLY TO QUESTION (A) ABOVE.

QUESTION (C) HAS TWO PARTS, AND PART 1 READS:

(C) IF HIS RETIRED PAY MUST BE COMPUTED PURSUANT TO THE PROVISION OF SECTION 1402 (A) OF TITLE 10 USC, CAN TIME ON THE INACTIVE RETIRED LIST BE USED IN THE COMPUTATION OF BASIC PAY?

THE PROVISIONS OF 10 U.S.C. 1402 (A) ARE THE CODIFICATION OF THE PERTINENT PROVISIONS OF FORMER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316 (1952 USED.). SECTION 202 (B) OF THE 1949 LAW, 63 STAT. 808, 37 U.S.C. 233 (B), EXPRESSLY BARS THE INCLUSION OF INACTIVE TIME SPENT ON A RETIRED LIST TO INCREASE RETIRED PAY EXCEPT AS PROVIDED IN TITLE IV OF THAT ACT. THE EXCEPTION PRESCRIBED IN SECTION 202 (B) AS TO TITLE IV DOES NOT APPLY WITH RESPECT TO THE PROVISIONS OF SECTION 516 WHICH WERE CONTAINED IN TITLE V OF THE 1949 LAW. THE APPLICABLE PROVISIONS OF 516 WERE SUPERSEDED AND REPLACED BY 10 U.S.C. 1402 (A) WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 49 (A), 70A STAT. 640. THEREFORE, INACTIVE TIME ON THE RETIRED LIST MAY NOT BE INCLUDED IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR PURPOSES OF COMPUTING RETIRED PAY UNDER 10 U.S.C. 1402 (A).

PART 2 OF QUESTION (C) IS AS FOLLOWS:

CAN SERVICE IN THE INACTIVE NATIONAL GUARD BE USED IN THE COMPUTATION OF BASIC PAY?

CAPTAIN WALSH WAS AN ENLISTED MEMBER OF THE CONNECTICUT NATIONAL GUARD IN A FEDERALLY RECOGNIZED UNIT DURING THE PERIOD APRIL 21, 1928, TO AUGUST 3, 1929, INCLUSIVE. SUCH PERIOD OF MEMBERSHIP CONSTITUTES A PERIOD OF ENLISTMENT IN THE " NATIONAL GUARD"--- AS DISTINGUISHED FROM MEMBERSHIP IN THE "INACTIVE NATIONAL GUARD"--- AND HENCE COMES WITHIN THE PURVIEW OF SECTION 202 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808, 37 U.S.C. 233 (A) (2). THEREFORE, THE 1 YEAR 3 MONTHS AND 13 DAYS OF CAPTAIN WALSH'S MEMBERSHIP IN THE CONNECTICUT NATIONAL GUARD PROPERLY MAY BE INCLUDED IN DETERMINING THE RATE OF HIS MONTHLY BASIC PAY IN COMPUTING HIS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1402 (A).

(D) IF HIS RETIRED PAY MUST BE COMPUTED PURSUANT TO SECTION 1402 (A) OF TITLE 10 USC, CAN TIME ON THE INACTIVE RETIRED LIST BE USED IN THE MULTIPLIER? CAN SERVICE IN THE INACTIVE NATIONAL GUARD BE USED IN THE MULTIPLIER?

AS PREVIOUSLY STATED, THE PROVISIONS OF 10 U.S.C. 1402 (A) REFLECT, WITHOUT SUBSTANTIVE CHANGE, THE PERTINENT PROVISIONS OF FORMER SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. IN SECTION 516 IT WAS EXPRESSLY PROVIDED THAT THE MULTIPLIER FACTOR REFLECT THE YEARS OF SERVICE CREDITABLE FOR PURPOSES OF COMPUTING RETIRED PAY AT THE TIME OF RETIREMENT PLUS THE NUMBER OF YEARS OF ACTIVE DUTY AFTER RETIREMENT. THE MULTIPLIER FACTOR IN 10 U.S.C. 1402 (A) IS REQUIRED TO BE ESTABLISHED ON THE SAME BASIS. IT IS OUR VIEW THAT INACTIVE TIME ON THE RETIRED LIST MAY NOT BE USED BY CAPTAIN WALSH AND NEITHER MAY HIS INACTIVE TIME IN THE NATIONAL GUARD BE USED IN ESTABLISHING THE MULTIPLIER FACTOR UNDER 10 U.S.C. 1402 (A). SEE 38 COMP. GEN. 348 WITH RESPECT TO THE PROVISIONS OF SECTION 516.

(E)IF HIS RETIRED PAY MUST BE COMPUTED PURSUANT TO SECTION 1402 (A) OF TITLE 10 U.S.C; IS THIS CONSIDERED TO BE DISABILITY RETIREMENT UNDER 1403 OR ANY OTHER PERTINENT SECTION, AND MAY THE PERCENTAGE OF DISABILITY (60 PERCENT) BE USED IN THE COMPUTATION OF TAXABLE INCOME?

WE MAY NOT RENDER A DECISION OF TAX QUESTIONS WHICH ARISE UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, BUT IT MAY BE OBSERVED THAT UNDER THE CONDITIONS PRESCRIBED IN 26 U.S.C. 104 (A), GROSS INCOME (FOR INCOME TAX PURPOSES) DOES NOT INCLUDE "AMOUNTS RECEIVED AS A PENSION, ANNUITY, OR SIMILAR ALLOWANCE FOR PERSONAL INJURIES OR SICKNESS RESULTING FROM ACTIVE SERVICE IN THE ARMED FORCES OF ANY COUNTRY OR IN THE COAST AND GEODETIC SURVEY OR THE PUBLIC HEATH SERVICE.' 10 U.S.C. 1403 PROVIDES AS FOLLOWS:

THAT PART OF THE RETIRED PAY OF A MEMBER OF AN ARMED FORCE, COMPUTED UNDER FORMULA NO. 1 OR 2 OF SECTION 1401, OR UNDER SECTION 1402 (D), OF THIS TITLE ON THE BASIS OF YEARS OF SERVICE, WHICH EXCEEDS THE RETIRED PAY THAT HE WOULD RECEIVE IF IT WERE COMPUTED ON THE BASIS OF PERCENTAGE OF DISABILITY IS NOT CONSIDERED AS A PENSION, ANNUITY, OR SIMILAR ALLOWANCE FOR PERSONAL INJURY, OR SICKNESS, RESULTING FROM ACTIVE SERVICE IN THE ARMED FORCES, UNDER SECTION 104 (A) OF TITLE 26.

THE PROVISIONS OF SECTION 1403 ARE EXPRESSLY MADE APPLICABLE ONLY TO FORMULAS 1 AND 2 OF SECTION 1401 AND TO THE FORMULA PRESCRIBED IN SECTION 1402 (D). THE RECOMPUTATION OF RETIRED PAY UNDER THE FORMULA PRESCRIBED IN SECTION 1402 (A) DOES NOT APPEAR TO BE WITHIN THE PURVIEW OF SECTION 1403. FOR AN AUTHORITATIVE OPINION ON THIS MATTER IT IS SUGGESTED THAT THE MATTER BE REFERRED TO THE INTERNAL REVENUE SERVICE OF THE TREASURY DEPARTMENT.

THE CLAIM PRESENTED IN THE STATEMENT DATED JULY 13, 1960, AND IN LETTER OF SEPTEMBER 6, 1960, FROM CAPTAIN WALSH'S ATTORNEY FOR INCREASED RETIRED PAY EFFECTIVE FROM AUGUST 1, 1960, COMPUTED AT THE RATE OF 60 PERCENT (DISABILITY PERCENTAGE) OF $985, THE MONTHLY ACTIVE DUTY BASIC PAY OF A CAPTAIN WITH OVER 26 YEARS OF CREDITABLE SERVICE (ACTIVE AND INACTIVE SERVICE) CLEARLY IS BASED ON THE "RE-RETIREMENT" CONCEPT OF THE GORDON V. UNITED STATES, FIELD V. UNITED STATES, AND SHERFEY V. UNITED STATES CASES (134 CT.1CL. 840, 141 CT.1CL. 312 AND 141 CT.1CL. 307, RESPECTIVELY). THUS, IT IS IN EFFECT CONTENDED THAT UPON RELEASE FROM ACTIVE DUTY ON AUGUST 1, 1960, CAPTAIN WALSH'S STATUS UNDER THE "RE-RETIREMENT" CONCEPT SHOULD BE TREATED AS AN INITIAL RETIREMENT UNDER THE PROVISIONS OF CHAPTER 61, 10 U.S.C. (FORMERLY TITLE IV OF THE CAREER COMPENSATION ACT OF 1949).

CAPTAIN WALSH HAD NO SERVICE IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND HENCE HIS RELEASE FROM ACTIVE DUTY ON AUGUST 1, 1960, DOES NOT CONSTITUTE A ,RE-RETIREMENT" UNDER THE HOLDINGS IN THE GORDON, FIELD AND SHERFEY CASES, WHICH ARE BASED ENTIRELY ON THE INTERPRETATION PLACED BY THE COURT ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115. THE CARHART DECISION OF JULY 13, 1959, CT.1CL. NO. 353-57, TO WHICH THE CLAIMANT'S ATTORNEY ALSO MAKES REFERENCE, RESTS ON THE CONSTRUCTION PLACED BY THE COURT ON THE PROVISIONS OF SECTION 203 (F), ACT OF JUNE 29, 1948, 62 STAT. 1086. SECTION 203 (F) HAD NO APPLICATION TO COMMISSIONED OFFICERS OF THE COAST GUARD AND IT DOES NOT APPEAR TO BE CONTENDED THAT CAPTAIN WALSH IS ENTITLED TO THE BENEFITS OF THOSE STATUTORY PROVISIONS.

APPLICATION OF THE "RE-RETIREMENT" CONCEPT IN THE CIRCUMSTANCES HERE PRESENTED WOULD RENDER TOTALLY INEFFECTIVE THE EXPRESS PROVISIONS OF 10 U.S.C. 1402 (A). THOSE PROVISIONS WERE SPECIFICALLY ENACTED BY CONGRESS TO GOVERN THE RECOMPUTATION OF RETIRED PAY OF PREVIOUSLY RETIRED MEMBERS, NOT COVERED BY THE PROVISIONS OF 10 U.S.C. 1402 (B) AND (C), WHO AFTER RECALL TO ACTIVE DUTY ARE RELEASED TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST. ACCORDINGLY, IN THE ABSENCE OF SOME SPECIFIC STATUTORY PROVISION UNDER WHICH CAPTAIN WALSH CAN ASSERT THAT HE WAS "RE-RETIRED" UPON HIS REVERSION ON AUGUST 1, 1960, TO AN INACTIVE STATUS ON THE RETIRED LIST, HIS RETIRED PAY STATUS IS VIEWED BY THIS OFFICE AS FIXED BY THE PROVISIONS OF 10 U.S.C. 1402 (A).