B-160756, MAR. 14, 1967

B-160756, MAR. 14, 1967

TO MR. EDWARD A. RICHMOND:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30, 1966, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF OCTOBER 5, 1966, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED DUE 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).

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 WILL BE NOTED THAT THE ABOVE-QUOTED PROVISIONS OF LAW DO NOT GRANT AN INCREASE IN RETIRED PAY. THEY MERELY WAIVE THE APPLICATION OF THE 10-YEAR STATUTE OF LIMITATIONS IN CONNECTION WITH THE CONSIDERATION OF CERTAIN CLAIMS FOR INCREASED RETIRED PAY AUTHORIZED BY OTHER STATUTORY PROVISIONS. THE "INCREASED RETIRED PAY" WO WHICH THE 1966 ACT REFERS IS THE "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 THE 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 OFFICERS WHO HAD BEEN RETIRED AND BECAME ENTITLED TO RETIRED PAY BEFORE ENACTMENT OF THAT ACT BUT WHO LATER WERE RECALLED TO ACTIVE DUTY AND WERE RELEASED AFTER MAY 31, 1942.

A NUMBER OF REGULAR OFFICERS WHO WERE OTHERWISE ENTITLED TO AN INCREASE IN RETIRED PAY UNDER THE GORDON AND RELATED CASES FAILED TO MAKE TIMELY CLAIMS, RESULTING IN A PORTION OF THEIR CLAIMS BEING BARRED BY THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940. THE PURPOSE OF THE 1966 ACT WAS TO WAIVE THE BARRING ACT TO PERMIT PAYMENT OF SUCH BARRED CLAIMS.

ALTHOUGH YOU INDICATE THAT YOU HAD THE REQUISITE WORLD WAR I SERVICE, WERE RETIRED IN 1934 AND MET THE OTHER CONDITIONS OF THE ACT OF APRIL 14, 1966, THE OFFICIAL ARMY REGISTER SHOWS THAT YOU WERE GRANTED RETIRED PAY AS A RESERVE OFFICER, ON SEPTEMBER 30, 1956 (RETROACTIVE TO JUNE 29, 1948), FOR AGE AND LENGTH OF SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 (FORMERLY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087). THIS STATUTE ESTABLISHED A NEW BASIS FOR PAYMENT OF RETIRED PAY TO MEMBERS AND FORMER MEMBERS OF RESERVE COMPONENTS AT A SPECIFIED AGE WHO MET CERTAIN MINIMUM SERVICE REQUIREMENTS, AND WHO HAD BEEN INELIGIBLE FOR RETIREMENT BENEFITS FOR LENGTH OF SERVICE UNDER PRIOR RETIREMENT LAWS.

THERE IS NO EVIDENCE THAT YOU RETIRED IN 1934. PRESUMABLY, YOU WERE SEPARATED FROM THE SERVICE AT THAT TIME AND HAD NO MILITARY STATUS UNTIL THE TIME YOU STATE YOU ENLISTED IN MARCH 1942. APPARENTLY, YOU HAD INSUFFICIENT SERVICE TO QUALIFY FOR RETIREMENT OR RETIRED PAY UNTIL THE 1948 ACT WAS ENACTED INTO LAW. YOU COULD NOT QUALIFY FOR RE-RETIREMENT BENEFITS IN ANY EVENT UNDER THE 1942 ACT SINCE THE COURT OF CLAIMS HAS HELD THAT THE APPLICABLE PROVISIONS OF THAT 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).

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED OCTOBER 5, 1966, IS SUSTAINED.