B-159964, SEPTEMBER 23, 1966, 46 COMP. GEN. 250

B-159964: Sep 23, 1966

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THE OFFICER IS ONLY ENTITLED TO THE RETIRED PAY PRESCRIBED BY THE 1948 ACT. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 3 AND 29. IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY. (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1. WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY. (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31. YOU SAY THAT YOU COME WITHIN THE CRITERIA SET OUT IN THE ACT AND YOU INDICATE THAT YOU ARE ENTITLED TO ADDITIONAL RETIRED PAY PURSUANT TO ITS PROVISIONS. THE PURPOSE OF PUBLIC LAW 89-395 WAS TO WAIVE THE PROVISIONS OF THE 10- YEAR BARRING ACT OF OCTOBER 9.

B-159964, SEPTEMBER 23, 1966, 46 COMP. GEN. 250

PAY - RETIRED - RESERVISTS - INCREASE UNDER PUBLIC LAW 89-395 ENTITLEMENT. A RESERVE OFFICER OF THE UNIFORMED SERVICES WHO BECAME ENTITLED TO RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 (10 U.S.C. 1331-1337) UPON REACHING THE AGE OF 60 AND MEETING THE REQUIRED SERVICE DOES NOT QUALIFY FOR THE INCREASED RETIRED PAY PROVIDED BY THE ACT OF APRIL 14, 1966 (PUBLIC LAW 89 -395) BY WAIVING THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, FOR OFFICERS CLAIMING INCREASED RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942---A PROVISION THAT DOES NOT APPLY TO RESERVE OFFICERS. THEREFORE, THE 1966 ACT NOT CHANGING THE SUBSTANTITIVE LAW DEALING WITH RETIREMENT BENEFITS OR CREATING NEW OR DIFFERENT RIGHTS, BUT MERELY PROVIDING A LIMITED PERIOD OF TIME WITHIN WHICH TO FILE CLAIM FOR RETIREMENT BENEFITS BARRED BY THE STATUTE OF LIMITATION, THE OFFICER IS ONLY ENTITLED TO THE RETIRED PAY PRESCRIBED BY THE 1948 ACT.

TO LIEUTENANT COLONEL HUGH M. JONES, SEPTEMBER 23, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 3 AND 29, 1966, REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 14, 1966, WHICH DISALLOWED YOUR CLAIM FOR INCREASE RETIRED PAY BELIEVED TO BE DUE YOU PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUBLIC LAW 89-395, 80 STAT. 120.

THE RECORD SHOWS THAT YOU BECAME ENTITLED TO RETIRED PAY EFFECTIVE DECEMBER 1, 1953, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1087-1091, NOW 10 U.S.C. 1331-1337. YOU SAY THAT YOU RECEIVED RETIRED PAY UNDER TITLE III UNTIL YOUR SERVICE-CONNECTED DISABILITY COMPENSATION EXCEEDED THE AMOUNT OF YOUR RETIREMENT PAY.

THE ACT OF APRIL 14, 1966, 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, 1952, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER 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.

YOU SAY THAT YOU COME WITHIN THE CRITERIA SET OUT IN THE ACT AND YOU INDICATE THAT YOU ARE ENTITLED TO ADDITIONAL RETIRED PAY PURSUANT TO ITS PROVISIONS.

THE PURPOSE OF PUBLIC LAW 89-395 WAS TO WAIVE THE PROVISIONS OF THE 10- YEAR BARRING ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, WITH RESPECT TO CERTAIN OFFICERS WHO CLAIMED INCREASED RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, 37 U.S.C. 115 (1958 ED.), AND CERTAIN DECISIONS INTERPRETING THAT PROVISION OF LAW. THE ACT DID NOT AFFECT OR CHANGE THE SUBSTANTIVE LAW DEALING WITH THE RETIREMENT BENEFITS OF THE OFFICERS CONCERNED OR GRANT ANY NEW OR DIFFERENT RIGHTS, BUT MERELY PROVIDED A LIMITED PERIOD OF TIME WITHIN WHICH THEY MIGHT FILE CLAIM FOR RETIREMENT BENEFITS FOUND DUE THEM WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS.

TITLE III OF THE ACT OF JUNE 29, 1948, UNDER WHICH YOU BECAME ENTITLED TO RETIRED PAY, ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIREMENT PAY FOR LENGTH OF SERVICE TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS AT A SPECIFIED AGE WHO HAD CERTAIN SERVICE AND WHO THERETOFORE WERE NOT ELIGIBLE FOR RETIREMENT FOR LENGTH OF SERVICE. YOU APPARENTLY BECAME ENTITLED TO RETIRED PAY UNDER TITLE III ON DECEMBER 1, 1953, UPON REACHING AGE 60 AND OTHERWISE SATISFYING THE REQUIREMENTS OF THE LAW, ONE OF WHICH BEING THAT YOU WERE NOT ENTITLED UNDER ANY OTHER PROVISION OF LAW TO RETIRED PAY FROM AN ARMED FORCE. SEE MERRILL V. UNITED STATES, 168 CT. CL. 1 (1964).

AS INDICATED ABOVE, PUBLIC LAW 89-395 DOES NOT CREATE ANY NEW RIGHT TO INCREASED RETIRED PAY, BUT APPLIES ONLY TO THOSE OFFICERS WHO ARE OTHERWISE QUALIFIED FOR INCREASED RETIRED PAY UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. HAS BEEN CONSISTENTLY HELD THAT SUCH PROVISION OF LAW DOES NOT APPLY TO RESERVE OFFICERS. SEE THE DECISIONS OF THE COURT OF CLAIMS IN CASES OF ABBOTT V. UNITED STATES, 152 CT. CL. 798 (1961); BERRY V. UNITED STATES, 123 CT. CL. 530 (1952), AND REYNOLDS V. UNITED STATES, 125 CT. CL. 108 (1953).

YOUR RIGHT TO RECEIVE RETIRED PAY IS BASED SOLELY ON THE PROVISIONS OF TITLE III OF THE 1948 ACT AND HENCE YOU DO NOT MEET THE REQUIREMENTS OF THE SECOND CLAUSE OF PUBLIC LAW 89-395, AND YOU ARE NOT OTHERWISE ENTITLED TO RECEIVE INCREASED RETIRED PAY. ACCORDINGLY, THE SETTLEMENT OF JUNE 14, 1966, IS SUSTAINED.