B-154946, NOV. 20, 1964

B-154946: Nov 20, 1964

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TO LIEUTENANT (JG) PETER LUCCHELLI: REFERENCE IS MADE TO LETTER OF AUGUST 4. YOUR CLAIM WAS DENIED FOR THE REASON THAT YOU HAD BEEN PAID THE MAXIMUM AMOUNT OF RETIRED PAY AUTHORIZED IN YOUR CASE INCIDENT TO YOUR PLACEMENT ON THE RETIRED LIST UNDER THE PROVISIONS OF SUBSECTION 413/A) AND (B) OF THE ARMED FORCES RESERVE ACT OF 1952. HAVE BEEN REVISED. IT WAS A STATUTE TO PROVIDE FOR RETIREMENT PAY AT A SPECIFIED AGE (60) TO THOSE MEMBERS OF RESERVE COMPONENTS WHO HAD CERTAIN SERVICE AND WHO WERE NOT OTHERWISE ELIGIBLE FOR RETIREMENT. SECTION 305 OF THAT ACT BARRED FROM ITS BENEFITS ANY MEMBER WHO "IS ENTITLED TO RECEIVE. OR IS RECEIVING UNDER ANY OTHER PROVISION OF LAW. A PROPOSED AMENDMENT TO SECTION 305 WHICH WOULD HAVE PERMITTED ACTION SIMILAR TO THAT PROPOSED BY YOUR ATTORNEY WAS NOT ACCEPTED BY CONGRESS.

B-154946, NOV. 20, 1964

TO LIEUTENANT (JG) PETER LUCCHELLI:

REFERENCE IS MADE TO LETTER OF AUGUST 4, 1964, SUBMITTED IN YOUR BEHALF BY YOUR ATTORNEY, REQUESTING REVIEW OF SETTLEMENT OF MAY 28, 1964, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY.

YOUR CLAIM WAS DENIED FOR THE REASON THAT YOU HAD BEEN PAID THE MAXIMUM AMOUNT OF RETIRED PAY AUTHORIZED IN YOUR CASE INCIDENT TO YOUR PLACEMENT ON THE RETIRED LIST UNDER THE PROVISIONS OF SUBSECTION 413/A) AND (B) OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 499. YOUR ATTORNEY REQUESTS THAT YOUR CLAIM BE FURTHER CONSIDERED ON THE BASIS THAT ON MAY 14, 1960, YOU MET THE AGE REQUIREMENT (60) AND ALSO THE SERVICE REQUIREMENTS SPECIFIED IN TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1087.

WHILE THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, HAVE BEEN REVISED, CODIFIED AND ENACTED INTO LAW AS SECTIONS 1331-1337, TITLE 10, U.S.C. THERE APPEARS TO BE NO EVIDENCE OF AN INTENTION ON THE PART OF CONGRESS TO CHANGE THE PURPOSE OF THE LAW AS ORIGINALLY ENACTED. TITLE III ESTABLISHED A NEW BASIS FOR THE PAYMENT OF RETIREMENT PAY FOR LONGEVITY 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 (60) TO THOSE MEMBERS OF RESERVE COMPONENTS WHO HAD CERTAIN SERVICE AND WHO WERE NOT OTHERWISE ELIGIBLE FOR RETIREMENT. SECTION 305 OF THAT ACT BARRED FROM ITS BENEFITS ANY MEMBER WHO "IS ENTITLED TO RECEIVE, OR IS RECEIVING UNDER ANY OTHER PROVISION OF LAW, RETIRED PAY FOR MILITARY OR NAVAL SERVICE.'

SINCE, AFTER DUE CONSIDERATION, A PROPOSED AMENDMENT TO SECTION 305 WHICH WOULD HAVE PERMITTED ACTION SIMILAR TO THAT PROPOSED BY YOUR ATTORNEY WAS NOT ACCEPTED BY CONGRESS, IT APPEARS THAT CONGRESS INTENDED BY SECTION 305 OF THE 1948 (NOW 10 U.S.C. 1331/A) (4) (, TO MAKE TITLE III OF THE 1948 ACT APPLICABLE ONLY TO RESERVE MEMBERS AND FORMER MEMBERS WHO WERE NOT COVERED BY ANY OTHER RETIREMENT LAW. SEE 41 COMP. GEN. 458. IN OTHER WORDS, IN ENACTING TITLE III, THE CONGRESS DID NOT INTEND TO ENHANCE THE RIGHTS OF PERSONS ON A RETIRED LIST OR OTHERS WHO MIGHT BECOME ENTITLED TO RETIRED PAY UNDER SOME OTHER PROVISIONS OF LAW, OR TO PROVIDE AN ALTERNATE METHOD OF COMPUTING RETIRED PAY IF CIRCUMSTANCES SHOULD MAKE A CHANGE ADVANTAGEOUS. SINCE YOU HAVE BEEN RECEIVING RETIRED PAY SINCE 1954 UNDER OTHER PROVISIONS OF LAW, 10 U.S.C. 1331/A) (4) CONSTITUTES A BAR TO THE PAYMENT OF YOUR CLAIM. SEE MERRILL V. UNITED STATES, CT.CL. NO. 95-63 DECIDED NOVEMBER 13, 1964.

ACCORDINGLY, THE DISALLOWANCE OF MAY 28, 1964, IS SUSTAINED.