B-153547, APR. 3, 1964

B-153547: Apr 3, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MARTIN EMILIUS CARLSON: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 12. FOR THE REASON THAT IT IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9. SINCE IT WAS NOT RECEIVED HERE UNTIL JULY 25. YOU STATE THAT LIEUTENANT COMMANDER CUTTS WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF OFFICERS OF THE NAVAL RESERVE BY THE SECRETARY OF THE NAVY ON FEBRUARY 8. THE CHIEF OF NAVAL PERSONNEL ADVISED HIM THAT HIS TRANSFER FROM THE RETIRED RESERVE TO THE NAVAL RESERVE RETIRED LIST WAS APPROVED EFFECTIVE JUNE 29. YOUR REQUEST FOR RECONSIDERATION IS BASED ON THE PREMISE THAT. AS IT WAS HELD IN OUR DECISION. " THE SAME RULE SHOULD APPLY TO A MEMBER OF THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE WHO WAS CONTINUED AS A MEMBER WITHOUT RETIRED PAY UNTIL.

B-153547, APR. 3, 1964

TO MR. MARTIN EMILIUS CARLSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 12, 1964, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 1, 1963, OF OUR CLAIMS DIVISION WHICH DISALLOWED THAT PORTION OF THE CLAIM OF LIEUTENANT COMMANDER WINTHROP R. CUTTS, UNITED STATES NAVAL RESERVE, RETIRED, FOR RETIRED PAY FOR THE PERIOD JUNE 29, 1948, TO JULY 24, 1953, FOR THE REASON THAT IT IS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, SINCE IT WAS NOT RECEIVED HERE UNTIL JULY 25, 1963.

YOU STATE THAT LIEUTENANT COMMANDER CUTTS WAS TRANSFERRED TO THE HONORARY RETIRED LIST OF OFFICERS OF THE NAVAL RESERVE BY THE SECRETARY OF THE NAVY ON FEBRUARY 8, 1962, WITHOUT PAY AND ALLOWANCES. ON MARCH 24, 1962, BY DD FORM 108, HE APPLIED FOR RETIRED PAY BENEFITS UNDER THE PROVISIONS OF 10 U.S.C. 1331. BY LETTER DATED OCTOBER 1, 1962, THE CHIEF OF NAVAL PERSONNEL ADVISED HIM THAT HIS TRANSFER FROM THE RETIRED RESERVE TO THE NAVAL RESERVE RETIRED LIST WAS APPROVED EFFECTIVE JUNE 29, 1948--- THE RECORDS OF THE BUREAU HAVING DISCLOSED THAT HE HAD FULFILLED THE SERVICE AND AGE REQUIREMENTS FOR APPLICATION FOR RETIRED PAY PRIOR TO JUNE 29, 1948, EFFECTIVE DATE OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1081, TITLE III OF WHICH BECAME CHAPTER 67, SECTIONS 1311-1337, UNITED STATES CODE.

YOUR REQUEST FOR RECONSIDERATION IS BASED ON THE PREMISE THAT, AS IT WAS HELD IN OUR DECISION, B-135771, JULY 14, 1959, 39 COMP. GEN. 20, "THAT THE 10-YEAR PERIOD OF LIMITATION BEGINS TO RUN FROM THE DATE OF CORRECTION OF THE RECORD," THE SAME RULE SHOULD APPLY TO A MEMBER OF THE HONORARY RETIRED LIST FOR THE NAVAL RESERVE WHO WAS CONTINUED AS A MEMBER WITHOUT RETIRED PAY UNTIL, AS A RESULT OF HIS WRITTEN REQUEST,HE WAS TRANSFERRED TO THE RETIRED RESERVE.

THE DECISION CITED BY YOU CONSIDERED THE AUTHORITY GRANTED THE SECRETARY OF THE NAVY UNDER 10 U.S.C. 6332 TO CORRECT ANY ERROR OR OMISSION IN HIS DETERMINATION AS TO A MEMBER'S GRADE AND YEARS OF CREDITABLE SERVICE AT THE TIME OF TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. THAT LAW SPECIFICALLY PROVIDES THAT FOLLOWING SUCH A CORRECTION RETAINER OR RETIRED PAY SHALL BE COMPUTED ON THE CORRECTED RECORD FROM THE DATE OF TRANSFER. THE CITED DECISION WOULD APPEAR TO HAVE NO BEARING ON THE CASE OF LIEUTENANT COMMANDER CUTTS INVOLVING QUALIFICATION FOR RETIREMENT PAY UNDER CHAPTER 67, TITLE 10, UNITED STATES CODE.

TITLE III OF THE ACT OF JUNE 29, 1948, ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIREMENT PAY FOR LENGTH OF SERVICE TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS, CREDIT BEING AUTHORIZED FOR ACTIVE DUTY TOGETHER WITH LIMITED CREDIT FOR SERVICE OTHER THAN ACTIVE DUTY. IT WAS A STATUTE TO PROVIDE FOR RETIREMENT PAY AT A SPECIFIED AGE TO THOSE MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS WHO HAD CERTAIN SERVICE AND WHO THERETOFORE WERE NOT ELIGIBLE FOR RETIREMENT. IN ADDITION TO THE AGE AND SERVICE REQUIREMENTS SET FORTH, THE LAW PROVIDED THAT APPLICATION THEREFORE MUST BE MADE TO THE SECRETARY OF THE MILITARY DEPARTMENT HAVING JURISDICTION AT THE TIME OF APPLICATION OVER THE ARMED FORCE IN WHICH THE APPLICANT IS SERVING OR LAST SERVED.

TRANSFER TO THE RETIRED LIST AND GRANTING OF RETIRED PAY UNDER TITLE III DO NOT CONSTITUTE AN ORDINARY RETIREMENT SUCH AS THAT AUTHORIZED BY OTHER PROVISIONS OF LAW WHICH CONTEMPLATE THE TRANSFER FROM AN ACTIVE-DUTY STATUS TO A RETIRED STATUS, AND THE RIGHT TO RECEIVE RETIRED PAY IS CONDITIONED UPON THE MEMBER OR FORMER MEMBER MEETING THE AGE AND SERVICE REQUIREMENTS OF THE LAW AND FILING AN APPLICATION FOR THE RETIRED PAY. DELAY IN FILING AN APPLICATION AND SUBSEQUENT TRANSFER TO THE RETIRED RESERVE LIST ESTABLISHED BY TITLE III DOES NOT CONSTITUTE A CORRECTION OF THE MAN'S RECORD REGARDLESS OF THE REASON FOR SUCH DELAYED APPLICATION.

WE AGREED TO FOLLOW THE HOLDING IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 CT.CL. 790, THAT RETIRED PAY UNDER TITLE III IS PAYABLE FROM THE DATE THE MEMBER MET THE AGE AND SERVICE REQUIREMENTS FOR SUCH PAY EVEN THOUGH APPLICATION FOR THE RETIRED PAY IS NOT MADE UNTIL SOME TIME SUBSEQUENT TO SUCH DATE. HOWEVER, SUCH APPLICATIONS FOR RETIREMENT ARE SUBJECT TO THE LIMITATION OF THE OCTOBER 9, 1940 ACT. WE HELD IN DECISION, B-113387, AUGUST 25, 1958, 38 COMP. GEN. 146, 153, ANSWER TO QUESTION 10, THAT THE LATEST DATE A PERSON QUALIFIED FOR RETIREMENT UNDER CHAPTER 67, TITLE 10, U.S. CODE, MUST FILE A CLAIM THEREFORE IN ORDER THAT NO PART THEREOF MAY BE BARRED BY THE ACT OF OCTOBER 9, 1940, IS JANUARY 1, 1959. LIEUTENANT COMMANDER CUTTS' CLAIM FOR RETIREMENT PAY WAS NOT RECEIVED IN THIS OFFICE UNTIL JULY 25, 1963, WE ARE PROHIBITED BY LAW FROM CONSIDERING THAT PORTION OF HIS CLAIM WHICH ACCRUED PRIOR TO JULY 25, 1953. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 1, 1963, WAS CORRECT AND UPON RECONSIDERATION MUST BE AND IS SUSTAINED.