B-160752, MAR. 3, 1967

B-160752: Mar 3, 1967

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BOOKWALTER: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30. IN THAT LETTER YOU WERE ADVISED THAT THE PURPOSE OF THAT ACT WAS TO PROVIDE A LIMITED PERIOD OF TIME WITHIN WHICH CERTAIN RETIRED OFFICERS MAY FILE CLAIM FOR RETIREMENT BENEFITS WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS (ACT OF OCTOBER 9. YOU APPEAR TO BELIEVE THAT YOU WERE RETIRED BEFORE JUNE 1. SINCE YOU CONTEND THAT YOU WERE "RECALLED" TO ACTIVE DUTY AND SERVED AS A COMMISSIONED OFFICER FROM JULY 5. 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 MAY 31.

B-160752, MAR. 3, 1967

TO MR. GEORGE R. BOOKWALTER:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30, 1966, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTER DATED DECEMBER 27, 1966, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY BY VIRTUE OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120. IN THAT LETTER YOU WERE ADVISED THAT THE PURPOSE OF THAT ACT WAS TO PROVIDE A LIMITED PERIOD OF TIME WITHIN WHICH CERTAIN RETIRED OFFICERS MAY FILE CLAIM FOR RETIREMENT BENEFITS WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS (ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237).

YOU STATE THAT YOUR SERVICE DURING WORLD WAR I TERMINATED BY DISCHARGE IN 1919. YOU APPEAR TO BELIEVE THAT YOU WERE RETIRED BEFORE JUNE 1, 1942, AND SINCE YOU CONTEND THAT YOU WERE "RECALLED" TO ACTIVE DUTY AND SERVED AS A COMMISSIONED OFFICER FROM JULY 5, 1941 UNTIL APRIL 2, 1946, YOU ASK FOR AN EXPLANATION AS TO WHY SUCH SERVICE DID NOT QUALIFY YOU FOR INCREASED RETIREMENT BENEFITS UNDER THE 1966 ACT UPON YOUR SUBSEQUENT RETIREMENT IN 1952.

THE ACT OF APRIL 14, 1966, TO WHICH YOU REFER, PROVIDES IN PERTINENT PART:

"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, 1942, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942 * * *"

IT IS TO BE NOTED THAT THE ABOVE-QUOTED PROVISIONS OF LAW DO NOT GRANT AN INCREASE IN RETIRED PAY. THEY MERELY WAIVE THE STATUTE OF LIMITATIONS IN CONNECTION WITH THE CONSIDERATION OF CERTAIN RETIRED PAY CLAIMS OTHERWISE AUTHORIZED BY STATUTE. YOU HAVE NO RIGHT TO RETIRED PAY WHICH WAS BARRED BY THE 1940 ACT AT ANY TIME. THE BENEFITS INVOLVED UNDER THE 1966 ACT WERE "RE-RETIREMENT" BENEFITS WHICH WERE PAYABLE UNDER THE CASE OF GORDON V. UNITED STATES, 134 CT.CL. 840 (1956). IN THAT CASE, THE COURT HELD THAT THE LANGUAGE CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, AUTHORIZING PAYMENT OF RETIRED PAY AT THE RATE OF 75 PERCENTUM OF ACTIVE DUTY PAY TO WORLD WAR I OFFICERS "HEREAFTER RETIRED" APPLIED WITH EQUAL FORCE TO SUCH OFFICERS WHO HAD BEEN RETIRED BEFORE ENACTMENT OF THAT ACT BUT WHO LATER WERE RECALLED TO ACTIVE DUTY AND WERE RELEASED AFTER MAY 31, 1942.

THE COURT VIEWED SUCH RELEASE TO INACTIVE DUTY AND REVERSION TO A RETIRED STATUS AS A ,RE-RETIREMENT" THUS PERMITTING AN INCREASE IN THE RETIRED PAY FORMERLY RECEIVED, BY COMPUTING SUCH PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY BEING RECEIVED AT THE TIME OF ,RE RETIREMENT.' SUCH ACTIVE DUTY PAY INCLUDED CREDIT FOR LONGEVITY PURPOSES OF ALL TIME ON THE RETIRED LIST BETWEEN THE ORIGINAL RETIREMENT AND RECALL TO ACTIVE DUTY.

A NUMBER OF OFFICERS WHO FILED CLAIM FOR "RE-RETIREMENT" BENEFITS AFTER THE GORDON AND OTHER SIMILAR CASES HAD BEEN DECIDED, FOUND THAT THEIR CLAIMS, IN PART, WERE BARRED BY THE 1940 ACT. PUBLIC LAW 89-395 WAS ENACTED FOR THE SOLE PURPOSE OF PERMITTING PAYMENT OF THESE BARRED CLAIMS. WHILE YOU APPEAR TO BELIEVE THAT YOU "WERE RETIRED BEFORE JUNE 1942," YOUR MILITARY HISTORY SHOWS THAT YOU WERE DISCHARGED FROM THE SERVICE IN 1919 WHICH TERMINATED YOUR MILITARY STATUS AT THAT TIME. THERE IS NO INDICATION IN OUR RECORDS THAT YOU WERE RETIRED OR THAT YOU RECEIVED RETIRED PAY AS A RETIRED OFFICER FROM THAT TIME UNTIL YOU REENTERED THE SERVICE IN 1941. YOU COULD NOT HAVE QUALIFIED FOR RE-RETIREMENT BENEFITS IN ANY EVENT SINCE THE COURT OF CLAIMS HAS HELD THAT THE APPLICABLE PROVISIONS OF THE 1942 ACT APPLIED ONLY TO COMMISSIONED OFFICERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES. SEE ABBOTT ET AL. V. UNITED STATES, 152 CT.CL. 798 (1961).

YOU WERE RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087 (NOW 10 U.S.C. 1331-1337), WHICH ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIRED PAY, BASED ON LENGTH OF SERVICE, TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS AT A SPECIFIED AGE WHO HAD CERTAIN MINIMUM SERVICE AND WHO THERETOFORE WERE INELIGIBLE FOR RETIREMENT FOR LENGTH OF SERVICE UNDER PRIOR RETIREMENT LAWS. YOU APPARENTLY BECAME ENTITLED TO RETIRED PAY UNDER TITLE III OF THAT LAW IN 1952, UPON REACHING AGE 60 AND OTHERWISE SATISFYING THE REQUIREMENTS OF THE LAW, ONE OF WHICH BEING THAT YOU WERE NOT ENTITLED TO RETIRED PAY FROM AN ARMED FORCE UNDER ANY OTHER PROVISION OF LAW.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED DECEMBER 27, 1966, IS SUSTAINED.