B-149635, SEP. 17, 1962

B-149635: Sep 17, 1962

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RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED JULY 26. WAS DISALLOWED BY SETTLEMENT DATED JULY 24. THE STATED BASIS FOR SUCH DISALLOWANCES WAS THAT SINCE YOU DID NOT SERVE ON ACTIVE DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. YOUR CASE IS NOT SIMILAR TO THE MENOCAL CASE AND. YOU STILL BELIEVE THAT YOU ARE ENTITLED TO 75 PERCENT OF THE ACTIVE DUTY PAY OF AN OFFICER OF YOUR RANK AND SERVICE COMPUTED ON THE RATES OF PAY PRESCRIBED IN THE 1949 ACT. RECORDS SHOW THAT YOU WERE RETIRED ON JUNE 30. IN THE RANK OF LIEUTENANT AND WERE RETAINED ON ACTIVE DUTY UNTIL JULY 12. WAS ALLOWED BY THIS OFFICE FOR THE PERIOD FEBRUARY 9 TO SEPTEMBER 30. NO AMOUNT WAS ALLOWED FOR ANY PERIOD AFTER SEPTEMBER 30.

B-149635, SEP. 17, 1962

TO COMMANDER KENNETH E. BRIMMER, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 26, 1962, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, AS CONTINUED UNDER SECTION 531 (B) (34) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, COMPUTED AT 75 PERCENT OF THE APPLICABLE PAY RATES PRESCRIBED IN THE 1949 ACT AS AMENDED, 37 U.S.C. 232.

YOUR CLAIM FOR ADJUSTMENT OF RETIRED PAY ON THE BASIS OF THE COURT OF CLAIMS DECISION OF APRIL 4, 1962, IN THE CASE OF MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY, WAS DISALLOWED BY SETTLEMENT DATED JULY 24, 1962. THE STATED BASIS FOR SUCH DISALLOWANCES WAS THAT SINCE YOU DID NOT SERVE ON ACTIVE DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, YOUR CASE IS NOT SIMILAR TO THE MENOCAL CASE AND, THEREFORE, THE DECISION IN THAT CASE AFFORDS NO BASIS FOR INCREASING YOUR RETIRED PAY. YOU STILL BELIEVE THAT YOU ARE ENTITLED TO 75 PERCENT OF THE ACTIVE DUTY PAY OF AN OFFICER OF YOUR RANK AND SERVICE COMPUTED ON THE RATES OF PAY PRESCRIBED IN THE 1949 ACT, AS AMENDED, AND YOU STATE THAT IT SEEMS HIGHLY IMPROBABLE THAT CONGRESS AUTHORIZED "THAT SPECIAL PARAGRAPH OF SECTION 15 SOLELY FOR THE BENEFIT OF MENOCAL OR A FEW OTHERS CALLED BACK FOR THE KOREAN WAR AT A LATER DATE.'

RECORDS SHOW THAT YOU WERE RETIRED ON JUNE 30, 1941, IN THE RANK OF LIEUTENANT AND WERE RETAINED ON ACTIVE DUTY UNTIL JULY 12, 1946. YOU RECEIVED RETIRED PAY AT THE RATE THEN BELIEVED TO BE PROPER UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, FOR THE PERIOD JULY 13, 1946, TO SEPTEMBER 30, 1949.

YOUR CLAIM FOR ADDITIONAL RETIRED PAY FROM JULY 13, 1946, UNDER THE RE- RETIREMENT PRINCIPLE OF THE GORDON CASE, 134 CT.CL. 840 (1956), BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WAS ALLOWED BY THIS OFFICE FOR THE PERIOD FEBRUARY 9 TO SEPTEMBER 30, 1949, BY SETTLEMENT OF APRIL 14, 1959. NO AMOUNT WAS ALLOWED FOR ANY PERIOD AFTER SEPTEMBER 30, 1949, SINCE THE RECORD SHOWED THAT BEGINNING OCTOBER 1, 1949, YOU WERE PAID RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, AT A RATE GREATER THAN WAS PAYABLE UNDER THE GORDON CASE. NO AMOUNT WAS ALLOWED FOR THE PERIOD PRIOR TO FEBRUARY 9, 1949, BECAUSE OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, BARRING CONSIDERATION OF THAT PART OF YOUR CLAIM.

UNDER THE RE-RETIREMENT THEORY OF THE GORDON CASE, RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHO AGAIN SERVED ON ACTIVE DUTY AFTER THEIR INITIAL RETIREMENT ARE REGARDED AS BEING RE RETIRED ON THE DATE OF THEIR RELEASE FROM SUBSEQUENT ACTIVE DUTY.

THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942 PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF AN 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, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

YOUR RETIRED PAY STATUS WAS SIMILAR TO THAT OF THE PLAINTIFF IN THE GORDON CASE WHO WAS HELD TO BE ENTITLED TO 75 PERCENT OF HIS ACTIVE DUTY PAY AT TIME OF RE-RETIREMENT, SUCH ACTIVE DUTY PAY BEING THE APPLICABLE RATES PROVIDED BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. IN OTHER WORDS HIS RE-RETIREMENT PRIOR TO OCTOBER 1, 1949, ENTITLED HIM TO AN INCREASE UNDER THE ABOVE CITED FOURTH PARAGRAPH COMPUTED AT RATES OF PAY PRESCRIBED BY LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, AS DID YOUR RE- RETIREMENT UNDER THE SAME LAW. THE INCREASES IN RETIRED PAY HE HAS RECEIVED ON AND AFTER THAT DATE WERE THE PERCENTAGE INCREASES AUTHORIZED BY THE ACTS OF MAY 19, 1952, CH. 310, 66 STAT. 79; MARCH 31, 1955, CH. 20, 69 STAT. 18, AND MAY 20, 1958, PUB.L. 85-422, 72 STAT. 122, FOR MEMBERS ENTITLED TO RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. YOU, HOWEVER, WERE RETIRED WITH A SUFFICIENT NUMBER OF YEARS OF SERVICE (27) TO QUALIFY FOR INCREASED RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, BEGINNING OCTOBER 1, 1949.

YOU APPEAR TO BE UNDER THE IMPRESSION THAT DESPITE THE STATUTORY PROVISION REQUIRING COMPUTATION OF YOUR RETIRED PAY AT THE RATE OF 75 PERCENT OF THE PAY YOU WERE RECEIVING AT THE TIME OF YOUR RETIREMENT IN 1946 AND DESPITE THE FACT THAT YOU PERFORMED NO ACTIVE DUTY AFTER THAT TIME, YOU NEVERTHELESS ARE ENTITLED TO THE BENEFITS OF THE 1942 ACT A SECOND TIME COMMENCING OCTOBER 1, 1949, MERELY BECAUSE THE 1949 ACT FAILED TO REPEAL THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. SUCH RESULT COULD FOLLOW ONLY IF A RIGHT TO RECEIVE AN INCREASE IN RETIRED PAY UNDER THE 1949 ACT COULD, OF ITSELF, BE REGARDED AS AN ADDITIONAL RETIREMENT. AN ARGUMENT TO THAT EFFECT WAS SUBMITTED TO, AND REJECTED BY, THE COURT OF CLAIMS IN THE CASE OF PALMER V. UNITED STATES, 139 CT.CL. 376 (1957), AND THE DECISION IN THAT CASE IS CONCLUSIVE OF YOUR RIGHTS IN THE PREMISES.

WHEN YOU WERE PAID THE GORDON CASE BENEFITS OF A RE-RETIREMENT UNDER THE SETTLEMENT OF APRIL 14, 1959, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY IN 1946, YOUR RIGHT TO AN INCREASE IN RETIRED PAY UNDER THE 1942 ACT WAS EXHAUSTED. ANY FURTHER INCREASES DEPENDED ON THE ENACTMENT OF NEW LEGISLATION AUTHORIZING SUCH INCREASES. SECTION 511 (B) OF THE 1949 ACT AUTHORIZED AN INCREASE IN YOUR CASE AND YOU HAVE BEEN PAID THE INCREASED RETIRED PAY THUS AUTHORIZED.

WHILE IT MAY BE ARGUED THAT IF ANY OFFICERS WERE RECEIVING RETIRED PAY COMPUTED AT 75 PERCENT OF THEIR ACTIVE DUTY PAY AT THE TIME OF RETIREMENT PRIOR TO OCTOBER 1, 1949, THE CONGRESS SHOULD HAVE AUTHORIZED CONTINUED PAYMENT ON THAT BASIS AFTER THAT DATE COMPUTED ON THE NEW PAY RATES PRESCRIBED IN THE 1949 ACT, THE LEGISLATIVE HISTORY OF THAT ACT CLEARLY SHOWS THAT THE CONGRESS REFUSED TO TAKE SUCH ACTION BECAUSE OF THE "SERIOUS INCREASE IN COST" WHICH WOULD HAVE RESULTED. SEE DECISION B- 102149, AUGUST 13, 1951, COPY ENCLOSED.

FROM THE FOREGOING, IT WILL BE SEEN THAT MENOCAL AND OTHERS RECALLED TO ACTIVE DUTY IN CONNECTION WITH HOSTILITIES IN KOREA RECEIVED NO SPECIAL BENEFITS UNDER THE 1949 ACT. SECTION 531 (B) (34) OF THAT ACT CONTAINED NO NEW LEGISLATION. IT MERELY CONTINUED THEN EXISTING AND PROSPECTIVE RIGHTS OF WORLD WAR I OFFICERS TO HAVE THEIR RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY RECEIVED "AT THE TIME OF HIS RETIREMENT.' OFFICERS RETIRED WHEN ACTIVE DUTY PAY IS HIGHER WILL GET GREATER RETIRED PAY THAN FELLOW OFFICERS WHO WERE RETIRED WHEN ACTIVE DUTY PAY WAS LOWER, UNLESS OTHER PROVISIONS OF LAW INCREASE SUCH RETIRED PAY. IT APPEARS THAT YOU HAVE BEEN PAID THE INCREASES IN RETIRED PAY AUTHORIZED UNDER APPLICABLE PROVISIONS OF LAW.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS HEREBY SUSTAINED.