B-154493, JAN. 4, 1967

B-154493, JAN. 4, 1967

TO MAJOR EDWARD KAUFMAN, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1966, IN EFFECT REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 15, 1966, DENYING YOUR CLAIM FOR ADDITIONAL RETIRED PAY WHICH YOU BELIEVE IS DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120. IT APPEARS THAT YOUR CLAIM COVERS THE PERIOD APRIL 21, 1944, TO JUNE 28, 1948. THE RECORD SHOWS THAT YOU HAVE BEEN PAID RETIRED PAY AT THE RATE OF 75 PERCENT OF THE PAY OF A MAJOR WITH OVER 30 YEARS' SERVICE SINCE JUNE 29, 1948.

PUBLIC LAW 89-395 PROVIDES AS FOLLOWS:

"THAT THE LIMITATION OF TIME PRESCRIBED BY THE ACT OF OCTOBER 9, 1940 (54 STAT. 1061; 31 U.S.C. 237), IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE, IF (1) HE SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918; (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1, 1942, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942; PROVIDED, THAT A CLAIM FOR SUCH RETIRED PAY SHALL BE FILED WITH THE GENERAL ACCOUNTING OFFICE BY EACH SUCH OFFICER OR BY HIS DESIGNATED BENEFICIARY, WITHIN ONE YEAR FOLLOWING THE DATE OF ENACTMENT OF THIS ACT.'

THE ACT OF APRIL 14, 1966, MERELY WAIVES THE LIMITATION PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AS TO CERTAIN OTHERWISE PROPER CLAIMS FOR RETIRED PAY COMPUTED AS AUTHORIZED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368. THAT PARAGRAPH IS APPLICABLE ONLY TO MEMBERS WHO RETIRED AS REGULAR OFFICERS OF THE ARMED FORCES. IT PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY 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 CLAIM WAS DISALLOWED IN THE SETTLEMENT OF NOVEMBER 15, 1966, FOR THE REASON THAT "SINCE THE OFFICIAL RECORDS SHOW THAT YOU WERE RETIRED AS AN ENLISTED MAN RATHER THAN AS A REGULAR OFFICER, THE ACT OF APRIL 14, 1966, IS NOT APPLICABLE IN YOUR CASE AND NO AMOUNT IS DUE YOU UNDER THAT LAW.'

YOU CONTEND IN YOUR LETTER OF NOVEMBER 29, 1966, THAT YOU WERE RETIRED AS AN OFFICER EFFECTIVE FEBRUARY 8, 1934, BY VIRTUE OF THE LANGUAGE CONTAINED IN PARAGRAPH 8, WAR DEPARTMENT SPECIAL ORDERS NO. 47, DATED FEBRUARY 26, 1934, WHICH READS AS FOLLOWS:

"MASTER SERGEANT EDWARD KAUFMAN, 6400021, SERVICE BATTERY, 17TH FIELD ARTILLERY, IS PLACED ON THE RETIRED LIST AT FORTH BRAGG, NORTH CAROLINA, EFFECTIVE FEBRUARY 28, 1934, AND WILL BE SENT TO HIS HOME. MASTER SERGEANT KAUFMAN IS ADVANCED ON THE RETIRED LIST TO THE RANK OF FIRST LIEUTENANT UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED MAY 7, 1932. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. QM 1600 A 211-4.'

IT WILL BE NOTED THAT PARAGRAPH 8 DIRECTED YOUR RETIREMENT AS A MASTER SERGEANT EFFECTIVE FEBRUARY 28, 1934, AND IN THE SECOND SENTENCE PROVIDED THAT YOU WOULD BE "ADVANCED ON THE RETIRED LIST TO THE RANK OF FIRST LIEUTENANT" UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932. THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1935, AT PAGE 1286, SHOWS THAT YOU WERE PLACED ON THE RETIRED LIST EFFECTIVE FEBRUARY 28, 1934, AS A MASTER SERGEANT AND ADVANCED THEREON TO THE GRADE OF FIRST LIEUTENANT UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932, CH. 171, 47 STAT 150, WHICH PROVIDED AS FOLLOWS:

"THAT ALL WARRANT OFFICERS AND ENLISTED MEN WHO SERVED IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES DURING THE WORLD WAR OR THE SPANISH-AMERICAN WAR, AND WHOSE SERVICE DURING SUCH WAR WAS CREDITABLE, AND WHO HAVE BEEN OR HEREAFTER MAY BE RETIRED ACCORDING TO LAW, SHALL ON THE DATE OF APPROVAL OF THIS ACT OR UPON RETIREMENT IN THE CASE OF THOSE NOW ON THE ACTIVE LISTS OF THE SERVICES NAMED HEREIN, BE ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED, WARRANT, OR ENLISTED GRADE HELD BY THEM DURING SUCH WAR: PROVIDED, THAT NOTHING IN THIS ACT SHALL ENTITLE ANY OF THE PERSONNEL DESCRIBED HEREIN, WHILE ON ACTIVE DUTY, TO ANY OTHER RANK THAN THAT IN WHICH THEY WERE SERVING AT THE TIME OF RETIREMENT: AND PROVIDED FURTHER, THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT FROM THE PASSAGE OF THIS ACT.'

ALSO, THE OFFICIAL ARMY REGISTER OF JANUARY 1, 1966, VOLUME II, AT PAGE 198, CONFIRMS THE FACT THAT YOU WERE RETIRED AS AN ENLISTED MEMBER AND ADVANCED TO HIGHER GRADE ON THE RETIRED LIST. CONSEQUENTLY YOUR CONTENTION THAT YOU WERE RETIRED AS AN OFFICER ON FEBRUARY 28, 1934, IS INCONSISTENT WITH THE OFFICIAL RECORDS OF THE DEPARTMENT OF THE ARMY. YOU RECEIVED NO RETIRED PAY AS AN OFFICER FOLLOWING YOUR RETIREMENT IN 1934.

THE RECORD FURTHER INDICATES THAT FOLLOWING ACCEPTANCE OF AN APPOINTMENT AS A FIRST LIEUTENANT IN THE ARMY OF THE UNITED STATES (AS DISTINGUISHED FROM THE REGULAR ARMY), YOU WERE ORDERED TO EXTENDED ACTIVE DUTY EFFECTIVE APRIL 1, 1942. SEE PARAGRAPH 29, WAR DEPARTMENT SPECIAL ORDERS NO. 89, APRIL 7, 1942, AT PAGES 23 AND 27. A STATEMENT OF YOUR MILITARY SERVICE DATED OCTOBER 28, 1966, PREPARED BY THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY SHOWS THAT YOU SERVED AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES (NOT THE REGULAR ARMY) DURING THE PERIOD APRIL 21, 1942, TO APRIL 20, 1944, INCLUSIVE, ON WHICH LATTER DATE YOU WERE SERVING IN THE GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES. IN LETTER OF SEPTEMBER 15, 1966, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, INDICATED THAT YOUR RETIRED PAY WAS COMPUTED ON THE BASIS OF WARRANT OFFICER (JUNIOR GRADE), DURING THE PERIOD APRIL 21, 1944, TO JUNE 28, 1948, INCLUSIVE (AUTHORIZED BY SECTION 8 OF THE ACT OF JUNE 6, 1924, CH. 275, 43 STAT. 472, AS AMENDED, 10 U.S.C. 981 (1940 ED.) (, FOR RETIRED ENLISTED MEN OF THE ARMY WHO SERVED AS COMMISSIONED OFFICERS DURING WORLD WAR I, AND ON THE GRADE OF MAJOR FROM JUNE 29, 1948, BY VIRTUE OF THE PROVISIONS OF SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086.

UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE CASE QUEENEY, PLAINTIFF NO. 5 IN HOAG, ET AL. V. UNITED STATES, 162 CT.CL. 198, DECIDED JUNE 7, 1963, IT MIGHT BE ARGUED THAT YOU WERE ,RERETIRED" AS AN "OFFICER" UPON YOUR RELEASE TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST EFFECTIVE APRIL 21, 1944. HOWEVER, THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 ARE APPLICABLE ONLY TO THOSE INDIVIDUALS WHO WERE RETIRED AS OFFICERS OF THE REGULAR ARMY, REGULAR NAVY, ETC., AND DO NOT APPLY WHERE RETIREMENT AS AN OFFICER OCCURRED IN A STATUS OTHER THAN AS A MEMBER OF THE REGULAR ARMY, REGULAR NAVY, ETC. SEE ABBOTT, ET AL. V. UNITED STATES, 152 CT.CL. 798 (1961), CERTIORARI DENIED BY THE SUPREME COURT ON NOVEMBER 13, 1961, 368 U.S. 915; BERRY V. UNITED STATES, 125 CT.CL. 530 (1952); AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953).

THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-395 DISCLOSES THAT THE SOLE PURPOSE OF THAT LAW WAS TO WAIVE THE 10-YEAR STATUTE OF LIMITATIONS FOR THE FILING OF CLAIMS WITH THE GENERAL ACCOUNTING OFFICE BY CERTAIN RETIRED OFFICERS OF THE MILITARY SERVICES WHO ARE VETERANS OF BOTH WORLD WAR I AND WORLD WAR II AND WHO WERE OTHERWISE ENTITLED TO THE RE-RETIREMENT BENEFITS OF THE 1942 ACT. IN THE CONGRESSIONAL RECORD, SENATE, APRIL 1, 1966, IT IS STATED AT PAGE 7005, THAT "THE PURPOSE OF THIS BILL (H.R. 3349, 89TH CONGRESS, WHICH BECAME PUBLIC LAW 89-395) IS NOT TO AFFECT OR CHANGE THE SUBSTANTIVE LAW DEALING WITH THE RETIREMENT BENEFITS OF THE REGULAR OR RESERVE COMPONENTS OF THE MILITARY SERVICES.' IN OTHER WORDS, VETERANS OF WORLD WAR I AND WORLD WAR II SUCH AS YOURSELF, DID NOT ACQUIRE ANY RETIRED PAY BENEFITS UNDER PUBLIC LAW 89-395 TO WHICH THEY WERE NOT THERETOFORE ENTITLED.

IN THE CIRCUMSTANCES ABOVE SET FORTH IT IS EVIDENT THAT YOU HAVE NEVER QUALIFIED FOR THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 FOR THE REASON THAT YOU WERE NEVER RETIRED AS AN OFFICER OF THE REGULAR ARMY. CONSEQUENTLY, YOUR RETIRED PAY IS NOT WITHIN THE SCOPE OF PUBLIC LAW 89-395 AND THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF NOVEMBER 15, 1966, IS SUSTAINED.