B-151286, JULY 17, 1963, 43 COMP. GEN. 68

B-151286: Jul 17, 1963

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WHO AFTER ANOTHER PERIOD OF ACTIVE SERVICE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 1. WAS PLACED ON THE DISABILITY RETIRED LIST IN 1923 IN HIS PERMANENT WARRANT OFFICER RANK OF PAY CLERK AND LATER. WAS RELEASED IN 1946 AND ADVANCED ON THE RETIRED LIST TO CHIEF PAY CLERK MUST BE REGARDED AS A RETIRED WARRANT OFFICER RATHER THAN A RETIRED COMMISSIONED WARRANT OFFICER. TO HOLD THAT SUCH MEMBERS WERE "OFFICERS HEREAFTER RETIRED" AFFORDS A BASIS FOR CONCLUDING THAT THE RETIRED NAVY WARRANT OFFICER IS AN "OFFICER HEREAFTER RETIRED" UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT FOR INCREASED RETIRED PAY. THIS REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NO.

B-151286, JULY 17, 1963, 43 COMP. GEN. 68

PAY - RETIRED - "OFFICER" STATUS. PAY - RETIRED - DISABILITY - RE RETIREMENT A NAVY MEMBER WHO HAD ACTIVE SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO AFTER ANOTHER PERIOD OF ACTIVE SERVICE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 1, 1956, IN HIS PERMANENT RANK OF CHIEF WARRANT OFFICER COMES WITHIN THE TERM "OFFICER" IN SECTION 102 (C) OF THE CAREER COMPENSATION ACT OF 1949, WHICH INCLUDES COMMISSIONED WARRANT OFFICER IN THE DEFINITION OF ,OFFICER" AND UNDER THE RULING IN ZUR-LINDEN V. UNITED STATES, CT.CL.NO. 207-58, DECIDED JULY 18, 1962, THE MEMBER MAY BE REGARDED AS AN "OFFICER--- HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 FOR ENTITLEMENT TO INCREASED RETIRED PAY. ALTHOUGH A NAVY MEMBER WHO, AFTER ACTIVE SERVICE PRIOR TO NOVEMBER 12, 1918, WAS PLACED ON THE DISABILITY RETIRED LIST IN 1923 IN HIS PERMANENT WARRANT OFFICER RANK OF PAY CLERK AND LATER, AFTER RECALL TO ACTIVE DUTY, WAS RELEASED IN 1946 AND ADVANCED ON THE RETIRED LIST TO CHIEF PAY CLERK MUST BE REGARDED AS A RETIRED WARRANT OFFICER RATHER THAN A RETIRED COMMISSIONED WARRANT OFFICER, THE LANGUAGE OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 RELATING TO WARRANT OFFICERS BEING SIMILAR TO THAT APPLICABLE TO COMMISSIONED WARRANT OFFICERS ON WHICH THE COURT OF CLAIMS RELIED IN ZUR-LINDEN V. UNITED STATES, CT.CL.NO. 207-58, DECIDED JULY 18, 1962, TO HOLD THAT SUCH MEMBERS WERE "OFFICERS HEREAFTER RETIRED" AFFORDS A BASIS FOR CONCLUDING THAT THE RETIRED NAVY WARRANT OFFICER IS AN "OFFICER HEREAFTER RETIRED" UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT FOR INCREASED RETIRED PAY.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, JULY 17, 1963:

BY SECOND INDORSEMENT DATED APRIL 4, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF FEBRUARY 14, 1963, REQUESTING A DECISION WHETHER THE RULE APPLIED BY THE COURT OF CLAIMS IN THE CASE OF ZUR LINDEN V. UNITED STATES, CT.CL.NO. 207-58, DECIDED JULY 18, 1962, MAY BE FOLLOWED IN THE CASES OF CHIEF WARRANT OFFICER (W-3) ERNEST T. FLEMING, USNR, RETIRED, 207008, AND CHIEF WARRANT OFFICER JOSEPH A. FARRELL, USN,RETIRED, 21639. THIS REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. DO-N-699 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MEMBERS SEEK THE DIFFERENCE BETWEEN THE RETIRED PAY THEY HAVE RECEIVED AND RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AS AMENDED, 37 U.S.C. 115 (1958 ED.), WHICH PROVIDES AS FOLLOWS (QUOTING FROM 37 U.S.C. 115):

THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE 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 AT THE TIME OF HIS RETIREMENT.

BOTH MEMBERS ARE REPORTED TO HAVE SERVED ON ACTIVE DUTY IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. THE QUESTION INVOLVED IS WHETHER THE MEMBERS MAY BE CONSIDERED AS "OFFICERS" HEREAFTER RETIRED WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE UNDER THE RULE APPLIED BY THE COURT IN THE ZUR-LINDEN CASE.

YOU REPORT THAT MR. FLEMING WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 1, 1956, IN HIS PERMANENT RANK OF CHIEF WARRANT OFFICER (W-3), WITH A PHYSICAL DISABILITY RATING OF 30 PERCENT UNDER THE PROVISION OF 37 U.S.C. 272 (1952 ED.). EFFECTIVE OCTOBER 1, 1960, HE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 70 PERCENT UNDER THE PROVISIONS OF 10 U.S.C. 1210. THE MEMBER'S RETIRED PAY HAS BEEN COMPUTED AT THE RATE OF 50 PERCENT AND 70 PERCENT OF THE BASIC PAY OF HIS RANK EFFECTIVE JANUARY 1, 1956, AND OCTOBER 1, 1960, RESPECTIVELY.

IT IS FURTHER REPORTED THAT ON FEBRUARY 16, 1923, MR. FARRELL WAS PLACED ON THE RETIRED LIST IN HIS PERMANENT WARRANT OFFICER RANK OF PAY CLERK BY REASON OF PHYSICAL DISABILITY UNDER THE PROVISIONS OF SECTION 1453, REVISED STATUTES. HE WAS RECALLED TO ACTIVE DUTY ON APRIL 13, 1942, AND RELEASED THEREFROM ON JANUARY 14, 1946. BY LETTER DATED AUGUST 22, 1946, FROM THE SECRETARY OF THE NAVY, HE WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF CHIEF PAY CLERK UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, 34 U.S.C. 350I (1952 ED.). MR. FARRELL HAS COMPLETED A TOTAL OF 14 YEARS, 7 MONTHS AND 7 DAYS OF ACTIVE SERVICE. HE HAS BEEN RECEIVING RETIRED PAY SINCE JANUARY 15, 1946, COMPUTED AT THE RATE OF 75 PERCENT OF THE BASE AND LONGEVITY PAY PROVIDED BY THE PAY READJUSTMENT ACT OF 1942 FOR A CHIEF WARRANT OFFICER WITH OVER 12 BUT LESS THAN 15 YEARS' SERVICE. HE HAS RECEIVED PERCENTAGE INCREASES IN HIS RETIRED PAY EFFECTIVE MAY 1, 1952, APRIL 1, 1955, AND JUNE 1, 1958, AS PROVIDED BY LAW FOR MEMBERS ENTITLED TO RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. IF HE IS CONSIDERED TO BE AN "OFFICER * * * HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, HE WILL BE ENTITLED TO THE DIFFERENCE BETWEEN THE RETIRED PAY RECEIVED AND RETIRED PAY COMPUTED ON THE BASIS OF OVER 30 YEARS' SERVICE FOR LONGEVITY CREDIT, WHICH INCLUDES CREDIT FOR OVER 19 YEARS' INACTIVE SERVICE ON THE RETIRED LIST, SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A.

THE COURT HELD IN THE ZUR-LINDEN CASE THAT THE PLAINTIFF--- WHO WAS "RE- RETIRED" AND TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY AFTER HIS RELEASE FROM ACTIVE DUTY ON MARCH 15, 1945, AS A COMMISSIONED WARRANT OFFICER OF THE NAVY--- WAS AN "OFFICER * * * HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. THE COURT'S OPINION WAS BASED ON THE LANGUAGE OF THE FOURTH AND FIFTH PARAGRAPHS OF SECTION 8 OF THE 1942 ACT, 37 U.S.C. 108 (1946 ED.), WHICH EQUATES THE REMUNERATION FOR ACTIVE DUTY APPLICABLE TO COMMISSIONED WARRANT OFFICERS OF THE NAVY WITH OVER 10 YEARS' COMMISSIONED SERVICE TO THAT APPLICABLE TO OTHER COMMISSIONED OFFICERS AS ESTABLISHED BY SECTION 1 OF THAT ACT, 37 U.S.C. 101 (1946 ED.). SPECIFICALLY, THE COURT HELD THAT "IF THIS IS SO FOR ACTIVE PAY PURPOSES IT WOULD SEEM LOGICAL FOR RETIRED PAY PURPOSES ALSO SINCE THE AMOUNT OF RETIREMENT BENEFITS ARE DIRECTLY RELATED TO AN OFFICER'S BASE PAY.'

THE ZUR-LINDEN CASE IS NOT SQUARELY IN POINT IN MR. FLEMING'S SITUATION, SINCE THE COURT'S CONCLUSION THAT THE PLAINTIFF WAS AN "OFFICER * * * HEREAFTER RETIRED" WAS BASED ON LANGUAGE CONTAINED IN SECTION 8 OF THE 1942 ACT WHICH HAD BEEN REPEALED BEFORE MR. FLEMING WAS RETIRED. HOWEVER, SECTION 102 (C) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 804, 37 U.S.C. 231 (C), DEFINED THE TERM "OFFICER" AS INCLUDING A COMMISSIONED WARRANT OFFICER. SINCE SUCH LANGUAGE IS MUCH CLEARER AS TO THE POINT INVOLVED THAN THAT RELIED ON BY THE COURT IN THE ZUR-LINDEN CASE, AND IN VIEW OF THE COURT'S HOLDING IN THAT CASE, WE FIND NO BASIS FOR A CONCLUSION THAT UPON HIS RETIREMENT MR. FLEMING WAS NOT AN "OFFICER * * * HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.

BY REASON OF THE DECISION OF THE COURT IN THE JONES CASE, 151 CT.CL. 119, MR. FARRELL MUST BE REGARDED AS A RETIRED WARRANT OFFICER RATHER THAN A RETIRED COMMISSIONED WARRANT OFFICER. HOWEVER, THE LANGUAGE IN THE FOURTH AND FIFTH PARAGRAPHS OF SECTION 8 OF THE 1942 ACT ON WHICH THE COURT RELIED IN THE ZUR-LINDEN CASE, IS PRACTICALLY THE SAME AS THAT CONTAINED IN THE FIRST PARAGRAPH OF THAT SECTION RELATING TO WARRANT OFFICERS. SUCH CIRCUMSTANCES, THE ZUR-LINDEN CASE FURNISHES ADEQUATE BASIS FOR A CONCLUSION THAT MR. FARRELL WAS "RE-RETIRED" AS AN "OFFICER" IN 1946 WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.