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B-144622, DEC. 7, 1962

B-144622 Dec 07, 1962
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RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19. YOUR CLAIM WAS ORIGINALLY DENIED IN OUR SETTLEMENT OF MAY 1. SUCH SETTLEMENT WAS SUSTAINED IN OUR DECISION OF JANUARY 16. THE RECORDS SHOW THAT WHILE YOU WERE SERVING ON ACTIVE DUTY AS A FLEET RESERVIST. YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE ENLISTED RETIRED LIST ON JULY 1. YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED ROLLS ON OCTOBER 16. YOU WERE NOT ADVANCED ON THE RETIRED LIST TO YOUR TEMPORARY GRADE OF CHIEF ELECTRICIAN UNDER THE PROVISIONS OF THE ACT OF JULY 24. THE ADJUSTMENT OF YOUR RETIRED PAY WAS DENIED BECAUSE A RIGHT TO COMPUTE RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT ACCRUES ONLY TO A PERSON WHO HAS BEEN RETIRED AFTER THE EFFECTIVE DATE OF THAT ACT AS AN "OFFICER.'.

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B-144622, DEC. 7, 1962

TO CHARLES C. LIGHT, CHIEF ELECTRICIAN, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1962, REGARDING YOUR CLAIM FOR ADDITIONAL RETIRED PAY BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368. YOUR CLAIM WAS ORIGINALLY DENIED IN OUR SETTLEMENT OF MAY 1, 1959, AND SUCH SETTLEMENT WAS SUSTAINED IN OUR DECISION OF JANUARY 16, 1961, B-144622, TO YOU.

THE RECORDS SHOW THAT WHILE YOU WERE SERVING ON ACTIVE DUTY AS A FLEET RESERVIST, YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE ENLISTED RETIRED LIST ON JULY 1, 1943, BUT REMAINED ON ACTIVE DUTY AT THAT TIME. YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE RETIRED ROLLS ON OCTOBER 16, 1945. YOU WERE NOT ADVANCED ON THE RETIRED LIST TO YOUR TEMPORARY GRADE OF CHIEF ELECTRICIAN UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, UNTIL AUGUST 22, 1946.

THE ADJUSTMENT OF YOUR RETIRED PAY WAS DENIED BECAUSE A RIGHT TO COMPUTE RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT ACCRUES ONLY TO A PERSON WHO HAS BEEN RETIRED AFTER THE EFFECTIVE DATE OF THAT ACT AS AN "OFFICER.' YOU REQUEST THAT YOUR CLAIM BE RECONSIDERED IN THE LIGHT OF THE COURT OF CLAIMS DECISION IN THE CASE OF ZUR-LINDEN V. UNITED STATES, CT.CL. NO. 207-58, DECIDED JULY 18, 1962.

IN THE ZUR-LINDEN CASE, THE COURT OF CLAIMS HAD FOR CONSIDERATION THE CASE OF A MEMBER WHO WAS A CHIEF WARRANT OFFICER OF THE REGULAR NAVY AND WHO WAS RETIRED FOR PHYSICAL DISABILITY AND TRANSFERRED TO THE RETIRED LIST IN THAT GRADE UNDER AUTHORITY OF 34 U.S.C. 417 (1940 ED.). DECIDING THAT THE PLAINTIFF WAS RETIRED AS AN "OFFICER" THE COURT BASED ITS DECISION UPON THE FACT THAT HE WAS TRANSFERRED TO THE RETIRED LIST AS A REGULAR COMMISSIONED WARRANT OFFICER. THE COURT STATED THAT IT WAS "IN FULL ACCORD" WITH THE GOVERNMENT'S POSITION THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT IS NOT A RETIREMENT STATUTE BUT RELATES SOLELY TO THE METHOD OF COMPUTING RETIREMENT PAY "WHICH CLEARLY WOULD NOT BE AVAILABLE TO ONE WHO IS NOT AN OFFICER AT THE TIME OF HIS RETIREMENT.' FOLLOWS THAT THE QUESTION OF WHETHER RETIRED ENLISTED MEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER AFTER RETIREMENT UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED, ARE ENTITLED TO CLAIM THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WAS NOT CONSIDERED IN THE ZUR-LINDEN CASE. THAT MATTER WAS CONSIDERED IN THE CASE OF JONES V. UNITED STATES, 282 F.2D 906, OCTOBER 5, 1960, AND WAS DECIDED IN THE NEGATIVE. YOUR RIGHTS ARE GOVERNED BY THE HOLDING IN THE LATTER CASE.

ACCORDINGLY, WE MUST ADHERE TO OUR DECISION OF JANUARY 16, 1961, THAT YOU ARE NOT ENTITLED TO AN ADJUSTMENT IN RETIRED PAY ON THE BASIS OF THE 1942 ACT.

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