B-157128, AUG. 10, 1965

B-157128: Aug 10, 1965

Additional Materials:

Contact:

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

 

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

RETIRED: REFERENCE IS MADE TO LETTER OF JUNE 22. YOUR REQUEST FOR REVIEW IS BASED ON ORDERS RECALLING YOU TO ACTIVE DUTY IN YOUR TEMPORARY OFFICER GRADE FROM A RETIRED STATUS WHICH. YOU WERE TRANSFERRED TO THE FLEET RESERVE WITH 20 YEARS OF ENLISTED NAVY SERVICE CREDITABLE FOR THE PURPOSE OF TRANSFER. IN NOVEMBER 1940 YOU WERE RECALLED TO ACTIVE DUTY IN THE ENLISTED STATUS YOU THEN HELD IN THE FLEET RESERVE AND YOU SERVED CONTINUOUSLY ON ACTIVE DUTY UNTIL SEPTEMBER 12. WHEN YOU WERE RELEASED. WHILE SERVING ON ACTIVE DUTY AFTER TRANSFER YOU WERE APPOINTED A TEMPORARY WARRANT OFFICER ON SEPTEMBER 1. YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938.

B-157128, AUG. 10, 1965

TO MR. BERNARD P. O-HARE, USN, RETIRED:

REFERENCE IS MADE TO LETTER OF JUNE 22, 1965, FROM YOUR ATTORNEY, REQUESTING REVIEW OF THE DISALLOWANCE DATED APRIL 30, 1965, OF YOUR CLAIM FOR AN ADJUSTMENT IN RETIRED PAY BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368. YOUR REQUEST FOR REVIEW IS BASED ON ORDERS RECALLING YOU TO ACTIVE DUTY IN YOUR TEMPORARY OFFICER GRADE FROM A RETIRED STATUS WHICH, YOU BELIEVE, MAKES YOUR SUBSEQUENT RELEASE ON SEPTEMBER 12, 1949, A "RE- RETIREMENT" AS A REGULAR OFFICER WITH YOUR RETIRED PAY RIGHTS FOR DETERMINATION UNDER THE DECISION OF JUNE 7, 1963, IN THE CASE OF HOAG, ET AL. (QUEENEY) V. UNITED STATES, CT.CL. NO. 544-59.

THE RECORD SHOWS THAT ON JULY 13, 1938, YOU WERE TRANSFERRED TO THE FLEET RESERVE WITH 20 YEARS OF ENLISTED NAVY SERVICE CREDITABLE FOR THE PURPOSE OF TRANSFER, THE FIRST PERIOD OF SERVICE HAVING BEEN PERFORMED PRIOR TO NOVEMBER 12, 1918. IN NOVEMBER 1940 YOU WERE RECALLED TO ACTIVE DUTY IN THE ENLISTED STATUS YOU THEN HELD IN THE FLEET RESERVE AND YOU SERVED CONTINUOUSLY ON ACTIVE DUTY UNTIL SEPTEMBER 12, 1949, WHEN YOU WERE RELEASED. WHILE SERVING ON ACTIVE DUTY AFTER TRANSFER YOU WERE APPOINTED A TEMPORARY WARRANT OFFICER ON SEPTEMBER 1, 1942, AND A TEMPORARY COMMISSIONED OFFICER ON DECEMBER 29, 1942, PURSUANT TO THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603. ON SEPTEMBER 1, 1948, HAVING COMPLETED 30 YEARS OF SERVICE, INCLUDING ACTIVE SERVICE AND INACTIVE SERVICE IN THE FLEET RESERVE, YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1175, AS AMENDED BY THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993. YOU WERE THEREUPON ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMANDER, THE HIGHEST GRADE IN WHICH YOU SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28. YOU WERE RELEASED FROM ACTIVE DUTY ON SEPTEMBER 12, 1949, AND BEGAN RECEIVING RETIRED PAY SEPTEMBER 13, 1949.

THERE IS NOW ON FILE IN OUR OFFICE, HAVING BEEN FURNISHED BY YOUR ATTORNEY, A COPY OF FIRST ENDORSEMENT TO BUPERS LTR 203084/1100 PERS 3126- GVB-2 OF JULY 26, 1948, ADDRESSED TO YOU FROM THE COMMANDER, NAVAL FORCES, WESTERN PACIFIC, UNDER DATE OF AUGUST 31, 1948, THE SUBJECT OF WHICH IS YOUR RELIEF FROM ALL ACTIVE DUTY AND TERMINATION OF APPOINTMENT INCIDENT TO RETIREMENT. THE THIRD ENDORSEMENT TO THE SAME LETTER OF JULY 26, 1948, ADDRESSED TO YOU FROM THE COMMANDER, NAVAL FORCES, WESTERN PACIFIC, UNDER DATE OF SEPTEMBER 1, 1948, STATES THAT YOU WERE PLACED ON THE RETIRED LIST EFFECTIVE THAT DATE IN ACCORDANCE WITH THE ACT OF JUNE 25, 1938. THE BASIC ORDER OF JULY 26, 1948, HAS NOT BEEN FURNISHED NOR HAS ANY ENDORSEMENT THERETO OTHER THAN THE FIRST AND THIRD. PRESUMABLY THAT ORDER WAS INTENDED TO EFFECT YOUR TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST, AS STATED IN THE THIRD ENDORSEMENT. BY A SEPARATE ORDER DATED SEPTEMBER 1, 1948, FILE NO. P16-4/00, 203084/1100, ALSO ADDRESSED TO YOU FROM THE COMMANDER, NAVAL FORCES, WESTERN PACIFIC, YOU WERE RECALLED TO ACTIVE DUTY UNDER AUTHORITY OF BUPERS DESPATCH 011949Z, SEPTEMBER 1948 AND PURSUANT TO THAT ORDER YOU SERVED ON ACTIVE DUTY UNTIL SEPTEMBER 12, 1949. EFFECTIVE SEPTEMBER 1, 1948, THEREFORE, YOUR STATUS WAS CHANGED FROM THAT OF FLEET RESERVIST SERVING ON ACTIVE DUTY TO THAT OF A RETIRED MEMBER SERVING ON ACTIVE DUTY.

THE COURT'S DECISION IN THE QUEENEY CASE HELD THAT A RETIRED FLEET RESERVIST WHO, AFTER ADVANCEMENT ON THE RETIRED LIST FOLLOWING A TOUR OF ACTIVE DUTY, WAS AGAIN RECALLED TO ACTIVE DUTY IN THE TEMPORARY COMMISSIONED GRADE TO WHICH HE HAD BEEN SO ADVANCED, WAS "RE RETIRED" IN THAT HIGHER GRADE, APPARENTLY IN THE STATUS OF A PERMANENT OFFICER OF THE REGULAR NAVY, UPON HIS SUBSEQUENT RELEASE TO INACTIVE DUTY ON THE RETIRED LIST. THE PLAINTIFF QUEENEY HAD BEEN RELEASED FROM ALL ACTIVE DUTY IN 1946 AND HAD REMAINED IN AN INACTIVE STATUS ON THE RETIRED LIST FOR APPROXIMATELY 4 YEARS BEFORE BEING RECALLED TO ACTIVE DUTY IN HIS TEMPORARY COMMISSIONED GRADE.

THE QUEENEY DECISION LEAVES UNRESOLVED SOME PERTINENT QUESTIONS RELATIVE TO THE STATUS OF RETIRED MEMBERS OF THE FLEET RESERVE WHO HAVE BEEN ADVANCED TO TEMPORARY COMMISSIONED GRADES AND IS NOT SUFFICIENTLY COMPREHENSIVE TO PERMIT FORMULATION OF SPECIFIC RULES FOR THE SETTLEMENT OF OTHER SIMILAR CASES. FOR THAT REASON WE ARE NOT FOLLOWING THE QUEENEY DECISION AS A PRECEDENT AT THE PRESENT TIME. THEREFORE, IT IS NOT NECESSARY TO DETERMINE WHETHER OR NOT THE FACTS IN YOUR CASE BRING IT WITHIN THE PURVIEW OF THAT DECISION. ENTRY OF JUDGMENT IN FAVOR OF CHARLES ERIC LOFGREN AS PLAINTIFF NO. 16 IN THE CASE OF BARNES, ET AL. V. UNITED STATES, CT.CL. NO. 500-59, COVERING AN ADJUSTMENT IN RETIRED PAY SIMILAR TO THAT ALLOWED BY THE COURT IN THE QUEENEY CASE, OF COURSE, FURNISHES NO PRECEDENT FOR ALLOWING YOUR CLAIM BECAUSE THE JUDGMENT IN FAVOR OF COMMANDER LOFGREN WAS ENTERED SOLELY ON THE BASIS OF AN ADMISSION OF LIABILITY BY THE GOVERNMENT AND THE COURT DID NOT CONSIDER THE CASE ON ITS MERITS.