B-156745, JUN. 21, 1965

B-156745: Jun 21, 1965

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WILLIS: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. YOU WERE ADVISED BY OUR CLAIMS DIVISION UNDER DATE OF APRIL 9. THAT YOUR CLAIM FOR THE PERIOD STATED ABOVE IS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9. SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 7. YOUR REQUEST FOR RECONSIDERATION IS BASED ON YOUR BELIEF THAT THE CLAIM DID NOT ACCRUE UNTIL THE DATE OF THE DECISION IN THE ZUR-LINDEN CASE WHEREIN IT WAS HELD THAT A WARRANT OFFICER IS AN . OFFICER" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT AND IS ENTITLED TO ITS BENEFITS. YOUR MILITARY HISTORY DISCLOSES THAT YOU WERE RETIRED AS A WARRANT OFFICER. ANY RIGHT TO HAVE YOUR RETIRED PAY COMPUTED IN ACCORDANCE WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT ACCRUED TO YOU ON THAT DATE SINCE THE 1942 ACT WAS THEN IN EFFECT.

B-156745, JUN. 21, 1965

TO FIRST LIEUTENANT CHARLES G. WILLIS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD OCTOBER 1, 1946, TO SEPTEMBER 30, 1949, BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AS INTERPRETED IN THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF ZUR-LINDEN V. UNITED STATES, 158 CT.CL. 383 (1962). YOU WERE ADVISED BY OUR CLAIMS DIVISION UNDER DATE OF APRIL 9, 1965, THAT YOUR CLAIM FOR THE PERIOD STATED ABOVE IS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 7, 1965, MORE THAN 10 YEARS AFTER THE DATE SUCH CLAIM ACCRUED. YOUR REQUEST FOR RECONSIDERATION IS BASED ON YOUR BELIEF THAT THE CLAIM DID NOT ACCRUE UNTIL THE DATE OF THE DECISION IN THE ZUR-LINDEN CASE WHEREIN IT WAS HELD THAT A WARRANT OFFICER IS AN ,OFFICER" WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT AND IS ENTITLED TO ITS BENEFITS.

YOUR MILITARY HISTORY DISCLOSES THAT YOU WERE RETIRED AS A WARRANT OFFICER, JUNIOR GRADE, ON SEPTEMBER 30, 1964, AND ANY RIGHT TO HAVE YOUR RETIRED PAY COMPUTED IN ACCORDANCE WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT ACCRUED TO YOU ON THAT DATE SINCE THE 1942 ACT WAS THEN IN EFFECT, EVEN THOUGH THE ENTITLEMENT OF WARRANT OFFICERS TO THOSE BENEFITS HAD NOT BEEN JUDICIALLY DETERMINED AT THAT TIME. THE COURT OF CLAIMS IN THE ZUR-LINDEN DECISION DID NOTHING MORE THAN AFFIRM THE EXISTENCE OF THOSE RIGHTS UNDER THE 1942 LAW; ITS DECISION DID NOT CREATE THOSE RIGHTS. WHILE THE COURT INTERPRETS THE LAW, ONLY THE CONGRESS HAS POWER TO CREATE ENTITLEMENT TO RETIRED PAY BENEFITS BY STATUTORY ENACTMENT. A DELAY IN SEEKING A JUDICIAL INTERPRETATION OF A STATUTE DOES NOT STOP OR DELAY IN ANY WAY THE RUNNING OF THE 10-YEAR LIMITATION PERIOD PRESCRIBED IN THE 1940 ACT. SEE OUR DECISION, B-135691, DATED APRIL 15, 1958, COPY OF WHICH IS ENCLOSED. ALSO SEE HAISLIP, ET AL. V. UNITED STATES, 152 CT.CL. 338 (1961).

THE ACTION TAKEN IN ADVISING YOU THAT YOUR CLAIM IS BARRED BY THE 1940 ACT WAS CORRECT AND IS SUSTAINED.