B-159965, SEP. 26, 1966

B-159965: Sep 26, 1966

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RETIRED: REFERENCE IS MADE TO YOUR LETTER RECEIVED IN THIS OFFICE AUGUST 15. THE DISALLOWANCE OF YOUR CLAIM WAS PREDICATED ON SEVERAL COURT DECISIONS. YOUR LETTERS INDICATE THAT YOU WERE RETIRED PURSUANT TO 10 U.S.C. 1331-1337. BY REASON OF YOUR RESERVE STATUS AND HENCE IT WAS DETERMINED THAT YOU DID NOT QUALIFY FOR THE RETIREMENT PAY CLAIMED. YOU NOW CALL OUR ATTENTION TO THE FACT THAT YOU WERE AN OFFICER OF THE "REGULAR SERVICES" DURING WORLD WAR I AND FOR THAT REASON YOU FEEL THAT YOU QUALIFY FOR THE INCREASED RETIREMENT BENEFITS CLAIMED. UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE. IS NOT CONTROLLING. THE FACT THAT YOU MAY HAVE SERVED IN WORLD WAR I AS AN OFFICER IN THE REGULAR ARMY IS IMMATERIAL AS THE STATUTORY LANGUAGE.

B-159965, SEP. 26, 1966

TO COLONEL RAY C. BURRUS, USAFR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER RECEIVED IN THIS OFFICE AUGUST 15, 1966, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION BY SETTLEMENT DATED JULY 11, 1966, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY INCIDENT TO YOUR SERVICE IN THE ARMY AND AIR FORCE DURING WORLD WARS I AND II. YOU CLAIMED ENTITLEMENT TO SUCH INCREASE UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368.

THE DISALLOWANCE OF YOUR CLAIM WAS PREDICATED ON SEVERAL COURT DECISIONS, BERRY V. UNITED STATES, 123 CT.CL. 530, (1952), REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953), AND ABBOTT, ET AL. V. UNITED STATES, 152 CT.CL. 798 (1961), ALL OF WHICH HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, SUPRA, APPLIES ONLY TO REGULAR OFFICERS. YOUR LETTERS INDICATE THAT YOU WERE RETIRED PURSUANT TO 10 U.S.C. 1331-1337, ET SEQ., BY REASON OF YOUR RESERVE STATUS AND HENCE IT WAS DETERMINED THAT YOU DID NOT QUALIFY FOR THE RETIREMENT PAY CLAIMED.

YOU NOW CALL OUR ATTENTION TO THE FACT THAT YOU WERE AN OFFICER OF THE "REGULAR SERVICES" DURING WORLD WAR I AND FOR THAT REASON YOU FEEL THAT YOU QUALIFY FOR THE INCREASED RETIREMENT BENEFITS CLAIMED.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, READS IN PERTINENT PART:

"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.'

A CAREFUL READING OF THE QUOTED LANGUAGE SHOWS THAT THE PARTICULAR MILITARY STATUS IN WHICH A PERSON PERFORMED SERVICE PRIOR TO NOVEMBER 12, 1918, IS NOT CONTROLLING. THE FACT THAT YOU MAY HAVE SERVED IN WORLD WAR I AS AN OFFICER IN THE REGULAR ARMY IS IMMATERIAL AS THE STATUTORY LANGUAGE, "WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918," MAKES NO DISTINCTION AS TO THE TYPE OF SERVICE REQUIRED; MERELY THAT SUCH SERVICE WAS PERFORMED.

THE AIR FORCE REGISTER SHOWS YOU WERE RETIRED AS A RESERVE OFFICER ON JANUARY 31, 1959, UNDER SECTIONS 302 AND 303 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, 10 U.S.C. 1331, ET SEQ. SINCE YOU WERE NOT RETIRED AS A MEMBER OF A REGULAR COMPONENT, YOU DO NOT QUALIFY FOR RETIREMENT PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA.

YOUR RECENT LETTER DOES NOT PRESENT ANY FACTS NOT PREVIOUSLY CONSIDERED BY THIS OFFICE AND ACCORDINGLY THE ACTION TAKEN BY OUR CLAIMS DIVISION ON JULY 11, 1966, IS SUSTAINED.