B-152951, JAN. 2, 1964

B-152951: Jan 2, 1964

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4. REQUESTING RECONSIDERATION ON THE BASIS OF SERVICE STATED TO HAVE BEEN PERFORMED BY YOU IN THE REGULAR ARMY DURING WORLD WAR I. WAS SEVERED FROM THE CLAIMS OF THE OTHER PLAINTIFFS AND THE COURT DECIDED ON MARCH 1. THAT HE WAS NOT ENTITLED TO COMPUTATION OF HIS RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT FOR THE REASON THAT SUCH PROVISION OF LAW PERTAINED ONLY TO RETIRED OFFICERS OF THE REGULAR SERVICES AS DISTINGUISHED FROM RETIRED RESERVE OFFICERS. YOUR PETITION WAS SUBSEQUENTLY DISMISSED. SINCE YOU WERE RETIRED UNDER THE SAME STATUTORY AUTHORITY AS COLONEL ABBOTT. YOUR RIGHTS ALSO ARE GOVERNED BY THE RULING IN HIS CASE.

B-152951, JAN. 2, 1964

TO COLONEL WILLIAM J. PICKETT, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1963, REFERRING TO THE DISALLOWANCE BY OUR CLAIMS DIVISION ON FEBRUARY 19, 1960, OF YOUR CLAIM FOR INCREASED RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AND REQUESTING RECONSIDERATION ON THE BASIS OF SERVICE STATED TO HAVE BEEN PERFORMED BY YOU IN THE REGULAR ARMY DURING WORLD WAR I.

THE RECORD SHOWS THAT AS PLAINTIFF NO. 445 IN THE CASE OF JOHN C. ABBOTT, ET AL. V. UNITED STATES, CT.CL. NO. 325-59, YOU FILED CLAIM IN THE COURT OF CLAIMS FOR THE SAME ADJUSTMENT IN RETIRED PAY. THE CLAIM OF PLAINTIFF NO. 1, COLONEL ABBOTT, WAS SEVERED FROM THE CLAIMS OF THE OTHER PLAINTIFFS AND THE COURT DECIDED ON MARCH 1, 1961 (152 CT.CL. 798), THAT HE WAS NOT ENTITLED TO COMPUTATION OF HIS RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT FOR THE REASON THAT SUCH PROVISION OF LAW PERTAINED ONLY TO RETIRED OFFICERS OF THE REGULAR SERVICES AS DISTINGUISHED FROM RETIRED RESERVE OFFICERS. YOUR PETITION WAS SUBSEQUENTLY DISMISSED.

SINCE YOU WERE RETIRED UNDER THE SAME STATUTORY AUTHORITY AS COLONEL ABBOTT, TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1081, 1087, 10 U.S.C. 1036A (1952 ED), YOUR RIGHTS ALSO ARE GOVERNED BY THE RULING IN HIS CASE. THE COURT IN THAT DECISION REFERRED TO THE EARLIER CASES OF BERRY V. UNITED STATES, 123 CT.CL. 530 (1952) AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953), WHEREIN IT HAD BEEN ESTABLISHED THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT DID NOT APPLY TO RETIRED RESERVE OFFICERS. IT WILL BE NOTED THAT IN EACH OF THOSE CASES SERVICE PRIOR TO NOVEMBER 12, 1918, WAS PERFORMED AS AN OFFICER OF THE REGULAR NAVY, COMMISSIONED UPON GRADUATION FROM THE NAVAL ACADEMY, AND THAT RETIREMENT WAS EFFECTED IN THE OFFICER'S RESERVE STATUS UNDER LAWS PERTAINING TO RESERVISTS.

THE PROVISION OF LAW UPON WHICH YOUR CLAIM IS BASED APPLIES TO COMPUTATION OF THE "RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT" WHICH, AS STATED ABOVE, HAS BEEN HELD TO REFER ONLY TO OFFICERS RETIRED IN THE STATUS OF REGULAR OFFICERS. THE PROVISION RELATIVE TO QUALIFYING SERVICE PRIOR TO NOVEMBER 12, 1918, IS NOT SO RESTRICTED BUT IS EXPRESSED AS FOLLOWS: "WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918.' IT IS CLEAR THAT THE TYPE OF MILITARY STATUS IN WHICH SERVICE WAS PERFORMED PRIOR TO NOVEMBER 12, 1918--- WHETHER OFFICER OR ENLISTED, REGULAR OR RESERVE--- IS IMMATERIAL.