B-146568, B-149487, SEPTEMBER 26, 1968, 48 COMP. GEN. 163

B-146568,B-149487: Sep 26, 1968

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HELD THAT THE PERMANENT APPOINTMENT OF THE PLAINTIFF TO THE RANK OF MAJOR WOULD HAVE ENTITLED HIM TO ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964 HAD HE SERVED THE REQUIRED 6 MONTHS IN THE HIGHER GRADE. 1968: REFERENCE IS MADE TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FRIESTEDT V UNITED STATES. IN WHICH WE EXPRESSED THE VIEW THAT IF THE RULE OF THE FRIESTEDT CASE IS TO BE EXTENDED TO RETIREMENT STATUTES GENERALLY. IN THAT CONNECTION YOUR ATTENTION IS INVITED TO THE DECISION OF THE COURT IN THE CASE OF TAYLOR V UNITED STATES. IN WHICH IT WAS HELD. IS MODIFIED TO THE EXTENT THAT THE RULING IN THE FRIESTEDT CASE MAY BE APPLIED IN SITUATIONS INVOLVING ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964.

B-146568, B-149487, SEPTEMBER 26, 1968, 48 COMP. GEN. 163

PAY - RETIRED - MEMBERS WHO SERVED IN HIGHER RANK THAN AT RETIREMENT - FRIESTEDT CASE ON THE BASIS OF TAYLOR V UNITED STATES, 174 CT. CL. 1266, IN WHICH THE COURT CITING FRIESTEDT V UNITED STATES, 173 CT. CL. 447, HELD THAT THE PERMANENT APPOINTMENT OF THE PLAINTIFF TO THE RANK OF MAJOR WOULD HAVE ENTITLED HIM TO ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964 HAD HE SERVED THE REQUIRED 6 MONTHS IN THE HIGHER GRADE, THE RULING OF THE FRIESTEDT CASE MAY BE APPLIED IN SITUATIONS INVOLVING ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964, 46 COMP. GEN. 17, MODIFIED.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 26, 1968:

REFERENCE IS MADE TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FRIESTEDT V UNITED STATES, 173 CT. CL. 447 (1965), AND TO OUR DECISION TO YOU DATED JULY 8, 1966, 46 COMP. GEN. 17, IN WHICH WE EXPRESSED THE VIEW THAT IF THE RULE OF THE FRIESTEDT CASE IS TO BE EXTENDED TO RETIREMENT STATUTES GENERALLY, IN THE ABSENCE OF FURTHER LEGISLATION, SUCH EXTENSION SHOULD BE MADE BY THE COURT IN CLEAR AND UNMISTAKABLE TERMS AND NOT BE THIS OFFICE.

IN THAT CONNECTION YOUR ATTENTION IS INVITED TO THE DECISION OF THE COURT IN THE CASE OF TAYLOR V UNITED STATES, 174 CT. CL. 1266 (1966), IN WHICH IT WAS HELD, CITING THE FRIESTEDT CASE, THAT THE PLAINTIFF'S PERMANENT APPOINTMENT AS MAJOR WOULD ENTITLE HIM TO ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964, EXCEPT THAT HE DID NOT SERVE THE REQUIRED 6 MONTHS IN SUCH HIGHER GRADE. IN VIEW OF THAT RULING, OUR ANSWER TO QUESTION 2 IN THE DECISION OF JULY 8, 1966, IS MODIFIED TO THE EXTENT THAT THE RULING IN THE FRIESTEDT CASE MAY BE APPLIED IN SITUATIONS INVOLVING ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964.