B-151869, OCTOBER 21, 1963, 43 COMP. GEN. 395

B-151869, OCTOBER 21, 1963, 43 COMP. GEN. 395

PAY - RETIRED - RE-RETIREMENT - SERVICE PRIOR TO NOVEMBER 12, 1918. PAY - RETIRED - RE-RETIREMENT - LENGTH OF SECOND TOUR OF DUTY. PAY - RETIRED - RE-RETIREMENT - LENGTH OF SECOND TOUR OF DUTY THE HOLDING IN MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, DECIDED APRIL 4, 1962, THAT A MEMBER WHO PRIOR TO NOVEMBER 12, 1918 SERVED AS A MIDSHIPMAN WITH ACTIVE DUTY FROM MARCH 26, 1951, TO MARCH 2, 1953, FOLLOWING RETIREMENT ON MARCH 1, 1948, AND WHO IS RE-RETIRED WITH OVER 30 YEARS OF SERVICE, INCLUDING THE INACTIVE SERVICE WHILE ON THE RETIRED LIST BETWEEN THE PERIODS OF ACTIVE DUTY, WAS "HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115 (1958 ED.), AND IS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF RETIREMENT WILL BE FOLLOWED AND APPLIED AS A PRECEDENT IN ADMINISTRATIVE SETTLEMENTS, PROVIDING THE FACTS ARE THE SAME; HOWEVER, ALTHOUGH THE COURT IN ITS DECISIONS DID NOT CONSIDER RECALL ORDERS, NO TEMPORARY OR SHORT PERIODS OF DUTY HAVING BEEN INVOLVED, CLAIMS FOR RETIREMENT BENEFITS UNDER THE FOURTH PARAGRAPH OF SECTION 15, WHERE PRIOR TO JUNE 1, 1958 ACTIVE DUTY AFTER RETIREMENT IS NOT A CONTINUOUS PERIOD OF AT LEAST 1 YEAR, A CONDITION PRESCRIBED IN SECTION 3 (B) OF THE ACT OF MAY 20, 1958 (37 US.C. 232 NOTE), SHOULD BE FORWARDED TO THE UNITED STATES GENERAL ACCOUNTING OFFICER FOR DIRECT SETTLEMENT. A NAVAL OFFICER RETIRED ON JULY 1, 1956, AND RETAINED ON ACTIVE DUTY THROUGH JUNE 30, 1958, WHO UPON RE-RETIREMENT, HAVING SERVED ON ACTIVE DUTY PRIOR TO NOVEMBER 12, 1918, WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. 115 (1958 ED.) (, WAS PAID RETIRED PAY COMPUTED AT 75 PERCENT OF THE BASIC PAY PRESCRIBED BY THE ACT OF MARCH 31, 1955 (37 U.S.C. 232), IS WITHOUT REGARD TO MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, DECIDED APRIL 4, 1962, ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE BASIC PAY PRESCRIBED BY THE ACT OF MAY 20, 1958 (37 U.S.C. 232). THE OFFICER HAVING MET THE SERVICE CONDITION PRESCRIBED IN SECTION 3 (B) OF THE 1958 ACT, THAT MEMBERS RETIRING OR BECOMING ENTITLED TO RETIRED PAY PRIOR TO THE EFFECTIVE DATE OF THE ACT WHO SERVE ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF AT LEAST 1 YEAR, THE ACTIVE DUTY ENDING AFTER THE EFFECTIVE DATE OF THE ACT, ARE ENTITLED TO THE RECOMPUTATION OF RETIRED PAY BASED ON THE RATES OF PAY IN THAT ACT. A NAVAL OFFICER WHO UPON RETIREMENT ON FEBRUARY 1, 1947, HAVING SERVED AS A MIDSHIPMAN PRIOR TO NOVEMBER 12, 1918, IS PAID RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF HIS BASIC PAY, A RATE HE CONTINUES TO RECEIVE SUBSEQUENT TO A PERIOD OF ACTIVE DUTY FROM JULY 5, 1952, THROUGH JULY 19, 1952, IS NOT ENTITLED TO A RECOMPUTATION OF RETIRED PAY ON THE BASIS OF MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, DECIDED APRIL 4, 1962, FROM JULY 20, 1952, UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. 115 (1958 ED.), SECTION 3 (B) OF THE ACT OF MAY 20, 1958, REQUIRING A CONTINUOUS PERIOD OF AT LEAST 1 YEAR OF SERVICE FOR ENTITLEMENT TO THE RECOMPUTATION OF RETIRED PAY BASED ON THE RATES IN THAT ACT, AND ALTHOUGH THE STATUTORY PROVISION DOES NOT GOVERN THE OFFICER'S RIGHTS, SECTION 3 (B) IS VIEWED AS AN EXPRESSION OF LEGISLATIVE INTENT TO BAR A RE-RETIREMENT COMPUTATION OF RETIRED PAY UNLESS THE SECOND TOUR OF DUTY IS AT LEAST OF 1 YEAR'S DURATION, IN THE ABSENCE OF SOME OTHER PROVISION OF LAW AUTHORIZING THE RECOMPUTATION.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, OCTOBER 21, 1963:

BY SECOND INDORSEMENT DATED JUNE 21, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF MAY 17, 1963, REQUESTING DECISION WHETHER THE RULE APPLIED BY THE COURT OF CLAIMS IN THE CASE OF MENOCAL V. UNITED STATES, CT.CL.NO. 63-61, DECIDED APRIL 4, 1962, MAY BE FOLLOWED IN OTHER LIKE CASES, SUCH AS THE CASES OF CAPTAIN ROBERT E. HENDERSON, MC, USN, RETIRED, 18450, AND CAPTAIN WILLIAM H. MAYS, USN, RETIRED, 34642. THIS REQUEST FOR AN ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. DO-N-710 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 PAY AT THE TIME OF HIS RETIREMENT.

YOU REPORT THAT CAPTAIN HENDERSON WAS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410D (1952 ED.), IN THE RANK OF CAPTAIN ON JULY 1, 1956, BUT WAS RETAINED ON ACTIVE DUTY THROUGH JUNE 30, 1958. HAD COMPLETED 18 YEARS, 1 MONTH, AND 29 DAYS OF ACTIVE SERVICE AND 1 MONTH AND 2 DAYS OF INACTIVE SERVICE ON THE DATE HIS NAME WAS PLACED ON THE RETIRED LIST. ALSO, HE WAS CREDITED WITH 4 YEARS OF CONSTRUCTIVE SERVICE UNDER THE ACT OF APRIL 30, 1956, CH. 223, 70 STAT. 119, 37 U.S.C. 233. THEREFORE, HIS SERVICE TOTALED 24 YEARS, 3 MONTHS, AND 1 DAY ON JUNE 30, 1958. SINCE HE SERVED ON ACTIVE DUTY IN THE NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, HE HAS BEEN PAID RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE BASIC PAY ESTABLISHED BY THE ACT OF MARCH 31, 1955, CH. 20, 69 STAT. 18, 37 U.S.C. 232 NOTE, FOR A CAPTAIN WITH OVER 22 YEARS, SERVICE, PLUS A 6 PERCENT INCREASE IN HIS RETIRED PAY AS PROVIDED BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122, OR AT THE GROSS MONTHLY RATE OF $595.30 SINCE JULY 1, 1958. YOU STATE THAT IF THE DECISION IN THE MENOCAL CASE MAY BE FOLLOWED, HE WILL BE ENTITLED TO RETIRED PAY AT THE GROSS MONTHLY RATE OF $682.50 FROM JULY 1, 1958, COMPUTED AT 75 PERCENT OF THE BASIC PAY ESTABLISHED BY THE ACT OF MAY 20, 1958, FOR A CAPTAIN WITH OVER 22 YEARS' SERVICE.

CONCERNING CAPTAIN MAYS YOU REPORT THAT HE WAS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410B (1946 ED.), IN THE RANK OF CAPTAIN ON FEBRUARY 1, 1947. HE HAD COMPLETED 28 YEARS, 7 MONTHS, AND 24 DAYS' ACTIVE SERVICE AT THE TIME. THEREAFTER, HE SERVED ON TEMPORARY ACTIVE DUTY FOR 15 DAYS DURING THE PERIOD JULY 5, 1952, THROUGH JULY 19, 1952, THEREBY INCREASING HIS TOTAL ACTIVE SERVICE TO 28 YEARS, 8 MONTHS, AND 9 DAYS. HAVING SERVED AS A MIDSHIPMAN PRIOR TO NOVEMBER 12, 1918, CAPTAIN MAYS HAD BEEN PAID RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE BASIC PAY AND LONGEVITY OF A CAPTAIN WITH OVER 27 YEARS' SERVICE FROM FEBRUARY 1, 1947, THROUGH SEPTEMBER 30, 1949. DURING THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1952, HIS RETIRED PAY WAS COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, 37 U.S.C. 311, ON THE BASIS OF 29 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES AND OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES. HE RECEIVED A PERCENTAGE INCREASE IN HIS RETIRED PAY OF 4 PERCENT EFFECTIVE MAY 1, 1952, AS PROVIDED BY THE ACT OF MAY 19, 1952, CH. 310, 66 STAT. 79, 37 U.S.C. 232. CAPTAIN MAYS RECEIVED RETIRED PAY FROM JULY 20, 1952, AT THE SAME RATE THAT HE RECEIVED PRIOR TO HIS RECALL TO ACTIVE DUTY. EFFECTIVE APRIL 1, 1955, HIS RETIRED PAY WAS RECOMPUTED ON THE BASIS OF THE BASIC PAY PROVIDED BY THE ACT OF MARCH 31, 1955, CH. 20, 69 STAT. 18, FOR HIS RANK AND YEARS OF SERVICE. ON JUNE 1, 1958, HIS RETIRED PAY WAS INCREASED BY 6 PERCENT AS PROVIDED BY THE ACT OF MAY 20, 1958, PUBLIC LAW 85-422, 72 STAT. 122. IF THE DECISION IN THE MENOCAL CASE GOVERNS HIS RIGHTS, HE IS ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF OVER 30 YEARS' SERVICE ON THE RETIRED LIST, FROM JULY 20, 1952, UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

IN THE MENOCAL CASE, THE PLAINTIFF ENTERED THE NAVAL SERVICE AS A MIDSHIPMAN ON JUNE 20, 1917. THEREAFTER, HE SERVED CONTINUOUSLY ON ACTIVE DUTY IN THE NAVY UNTIL MARCH 1, 1948, WHEN HE WAS RETIRED WITH THE RANK OF REAR ADMIRAL AND WAS AWARDED THE RETIRED PAY OF A CAPTAIN. HE SERVED ON ACTIVE DUTY FROM MARCH 26, 1951, TO MARCH 2, 1953, WHEN HE WAS "RE- RETIRED," AT WHICH TIME HE HAD SERVED MORE THAN 27 YEARS ON ACTIVE DUTY, AND HAD TOTAL SERVICE IN EXCESS OF 30 YEARS, INCLUDING MORE THAN 3 YEARS OF INACTIVE SERVICE WHILE ON THE RETIRED LIST BETWEEN PERIODS OF ACTIVE DUTY. ON HIS LAST DAY OF ACTIVE SERVICE, HE WAS RECEIVING THE ACTIVE DUTY PAY OF A CAPTAIN IN THE NAVY WITH SERVICE IN EXCESS OF 30 YEARS PURSUANT TO SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 233 (B). UPON "RE RETIREMENT" IN 1953, HE WAS AWARDED RETIRED PAY AMOUNTING TO 70 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH MORE THAN 26 BUT LESS THAN 30 YEARS OF SERVICE. HE SUED FOR ADDITIONAL RETIRED PAY FROM FEBRUARY 1, 1955, IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN WHAT HE HAD BEEN RECEIVING AND THE AMOUNT RESULTING FROM COMPUTATION OF HIS RETIRED PAY AT 75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH MORE THAN 30 YEARS OF SERVICE.

THE COURT HELD THAT HE WAS ENTITLED TO RECOVER THE ADDITIONAL RETIRED PAY AS AN OFFICER ,HEREAFTER RETIRED" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE COURT'S OPINION WAS BASED IN PART ON THE PROVISIONS OF SECTION 531 (B) (34) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 115, WHICH REPEALED ALL OF THE PAY READJUSTMENT ACT OF 1942, WITH CERTAIN SPECIFIC EXCEPTIONS,INCLUDING THE FOURTH PARAGRAPH OF SECTION 15.

BY LETTER DATED JULY 18, 1962, THE DEPARTMENT OF JUSTICE ADVISED US THAT THE JUDGMENT AGAINST THE GOVERNMENT IN THE MENOCAL CASE HAD BECOME FINAL SINCE THAT DEPARTMENT HAD TAKEN NO FURTHER ACTION WITH RESPECT THERETO. IN THESE CIRCUMSTANCES, WE HAVE CONCLUDED THAT WE WILL FOLLOW THE RULE ESTABLISHED IN THE MENOCAL CASE IN THE SETTLEMENT OF OTHER SIMILAR CASES. ACCORDINGLY, THE MENOCAL CASE MAY NOW BE APPLIED AS A PRECEDENT IN THE ADMINISTRATIVE SETTLEMENT OF SUCH CASES, PROVIDED THE FACTS ARE THE SAME AS THOSE PRESENTED IN THAT CASE.

HOWEVER, THE CASES IN WHICH THE COURT OF CLAIMS HAS CONCLUDED THAT A RETIRED OFFICER IS ENTITLED TO RE-RETIREMENT RIGHTS UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, INCLUDING THE MENOCAL CASE, HAVE INVOLVED SITUATIONS WHERE THE RETIRED OFFICER INVOLVED SERVED ON ACTIVE DUTY FOR A SUBSTANTIAL PERIOD OF TIME AFTER RETIREMENT. WHILE THE COURT'S DECISIONS DO NOT DISCLOSE WHETHER THE ORDERS RECALLING SUCH OFFICERS TO ACTIVE DUTY ARE A RELEVANT FACTOR FOR CONSIDERATION, THE LENGTH OF TIME SERVED BY THE PLAINTIFFS IN THOSE CASES INDICATES THAT SUCH ORDERS DID NOT CONTEMPLATE TEMPORARY DUTY OR DUTY FOR A SHORT AND LIMITED PERIOD OF TIME. IT IS NOT KNOWN HOW THE COURT WOULD DECIDE THE CASE (TO STATE AN EXTREME EXAMPLE) OF AN OFFICER WITH SERVICE IN WORLD WAR I WHO VOLUNTARILY RETIRED AFTER 20 YEARS OF ACTIVE SERVICE IN 1946 AND LATER WAS RECALLED TO ACTIVE DUTY FOR 1 DAY IN 1956. IN OTHER WORDS, WOULD THE COURT HOLD IN SUCH A CASE THAT A RETIRED OFFICER WHO SERVED ON ACTIVE DUTY FOR ONLY 1 DAY WAS RE-RETIRED WHEN HIS DUTY FOR THAT 1 DAY WAS COMPLETED, OR WOULD IT CONSIDER THAT SUCH ACTIVE DUTY INVOLVED NOTHING MORE THAN AN ORDER TO, AND RELEASE FROM, ACTIVE DUTY? CF. HARBAY V. UNITED STATES, 138 CT.CL. 284. IT SEEMS DOUBTFUL THE CONGRESS INTENDED THAT UNDER SUCH CIRCUMSTANCES A RETIRED OFFICER WHO SO SERVES ON ACTIVE DUTY FOR 1 DAY SHOULD RECEIVE, OR THAT THE COURT WOULD HOLD THAT UPON HIS RELEASE FROM ACTIVE DUTY HE WAS ENTITLED TO, RE-RETIREMENT BENEFITS; THAT IS, RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE PAY PRESCRIBED IN THE ACT OF MARCH 31, 1955, FOR AN OFFICER WITH OVER 30 YEARS OF SERVICE.

HENCE, WHILE IT APPEARS THAT THE LENGTH OF TIME A RETIRED OFFICER SERVES ON ACTIVE DUTY AFTER RETIREMENT OR THE TEMPORARY OR PERMANANT NATURE OF THAT DUTY MAY BE A DETERMINING FACTOR IN THESE FOURTH PARAGRAPH CASES, AT THE PRESENT TIME THERE IS NO WAY OF KNOWING THE MINIMUM PERIOD, IF ANY, THE COURT WOULD ADOPT AS A BASIS FOR GRANTING RE-RETIREMENT RIGHTS UNDER SECTION 15 OF THE 1942 ACT OR WHETHER IN ANY CASE INVOLVING ONLY TEMPORARY ACTIVE DUTY AFTER RETIREMENT THE COURT WOULD GRANT SUCH RIGHTS. IT IS NOTED THAT UNDER SECTION 3 (B) OF THE ACT OF MAY 20, 1958, A MEMBER WHO RETIRED OR BECAME ENTITLED TO RETIRED PAY PRIOR TO THE EFFECTIVE DATE OF THE ACT WHO SERVES ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF AT LEAST 1 YEAR AND WHOSE ACTIVE DUTY ENDS AFTER THE EFFECTIVE DATE OF THAT ACT, IS ENTITLED TO RECOMPUTATION OF HIS RETIRED PAY BASED ON THE RATES OF PAY IN THAT ACT. WHILE THE STATUTORY PROVISION DOES NOT GOVERN THE RIGHTS OF CAPTAIN MAYS, IT CONTAINS SOME INDICATION OF NOT GOVERN THE RIGHTS OF CAPTAIN MAYS, IT CONTAINS SOME INDICATION OF THE LEGISLATIVE INTENT AND IT IS SUGGESTED THAT ALL CLAIMS FOR RE-RETIREMENT BENEFITS UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WHICH INVOLVE ACTIVE DUTY AFTER RETIREMENT OF LESS THAN 1 YEAR PRIOR TO JUNE 1, 1958, SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT, TOGETHER WITH A COPY OF THE ORDERS DIRECTING SUCH RETIRED OFFICER TO REPORT FOR ACTIVE DUTY.

WHILE WE VIEW CAPTAIN MAYS' CLAIM AS TOO DOUBTFUL TO WARRANT PAYMENT, IT APPEARS THAT CAPTAIN HENDERSON MET THE CONDITIONS PRESCRIBED IN SECTION 3 (B) OF THE 1958 ACT AND THAT HE IS ENTITLED TO THE BENEFITS THERE PRESCRIBED. HENCE, HE BECAME ENTITLED TO RETIRED PAY AT THE RATE OF $682.50 PER MONTH COMMENCING JULY 1, 1958, WITHOUT REGARD TO THEMENOCAL CASE.

WE VIEW SECTION 3 (B) OF THE 1958 ACT AS AN EXPRESSION OF LEGISLATIVE INTENT TO BAR A RE-RETIREMENT RECOMPUTATION OF RETIRED PAY FOLLOWING A TOUR OF ACTIVE DUTY ENDING ON OR AFTER THE EFFECTIVE DATE OF THE 1958 ACT, UNLESS SUCH TOUR IS OF AT LEAST 1 YEAR'S DURATION, IN THE ABSENCE OF SOME OTHER PROVISION OF LAW AUTHORIZING SUCH RECOMPUTATION. COMPARE 10 U.S.C. 1402. HENCE, WE ARE OF THE OPINION THAT A MEMBER WHO IS RELEASED FROM ACTIVE DUTY ON OR AFTER JUNE 1, 1958, MUST HAVE SERVED ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF AT LEAST 1 YEAR IN ORDER TO BE ENTITLED TO THE RETIREMENT RECOMPUTATION BENEFITS OF THE MENOCAL CASE. YOUR QUESTION IS ANSWERED ACCORDINGLY.