B-161225, MAY 17, 1967

B-161225: May 17, 1967

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STIELOW: REFERENCE IS MADE TO YOUR LETTER OF MARCH 30. 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. IT WILL BE NOTED THAT SUCH ACT MERELY WAIVES THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9. THE INCREASED RETIRED PAY AS TO WHICH THE STATUTE OF LIMITATIONS IS WAIVED IS THAT AUTHORIZED UPON RE-RETIREMENT OF RETIRED OFFICERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES (REGULAR ARMY. YOU HAVE NEVER QUALIFIED FOR INCREASED RETIRED PAY UNDER THAT ACT.

B-161225, MAY 17, 1967

TO CAPTAIN EMIL F. STIELOW:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1967, ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE, FORWARDED HERE BY THE HONORABLE WILLIAM A. STEIGER, HOUSE REPRESENTATIVES, ON APRIL 5, 1967. YOU REQUEST RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION IN LETTER OF MARCH 17, 1967, DENYING YOUR CLAIM FOR AN AMOUNT OF MONEY ALLEGED TO BE DUE YOU UNDER THE ACT OF APRIL 14, 1966, PUB.L.89-395, 80 STAT. 120.

PUBLIC LAW 89-395 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, 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 SUCH ACT MERELY WAIVES THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, IN CONNECTION WITH THE CONSIDERATION OF CERTAIN CLAIMS "FOR INCREASED RETIRED PAY" BY OFFICERS WHO MEET THE SPECIFIC CONDITIONS PRESCRIBED IN THE ACT. THE INCREASED RETIRED PAY AS TO WHICH THE STATUTE OF LIMITATIONS IS WAIVED IS THAT AUTHORIZED UPON RE-RETIREMENT OF RETIRED OFFICERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES (REGULAR ARMY, REGULAR NAVY, ETC.), UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368. YOU HAVE NEVER QUALIFIED FOR INCREASED RETIRED PAY UNDER THAT ACT.

THE RECORD SHOWS THAT YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST AS A NON-REGULAR OFFICER EFFECTIVE APRIL 1, 1955, WITH ENTITLEMENT TO RETIRED PAY AS PROVIDED IN TITLE III, ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087-1091, NOW CODIFIED IN CH. 67, TITLE 10, U.S. CODE.

A CLAIM FOR THE BENEFITS BELIEVED DUE YOU UNDER PUBLIC LAW 89-395 WAS PRESENTED IN YOUR LETTER OF FEBRUARY 27, 1967. IN THE FIRST PARAGRAPH OF THAT LETTER YOU INDICATED THAT YOU WERE MAKING APPLICATION "FOR INCREASED RETIRED PAY" UNDER AUTHORITY OF PUBLIC LAW 89-395. HOWEVER, NO FURTHER REFERENCE TO "INCREASED RETIRED PAY" APPEARS IN THAT LETTER AND THE STATEMENTS THEREAFTER MADE APPEAR TO RELATE TO THE MATTER OF ACTIVE DUTY PAY FOR THE PERIOD AUGUST 12, 1941, TO JUNE 29, 1943, INCLUSIVE.

THE OFFICE OF THE ADJUTANT GENERAL OF THE ARMY HAS ADVISED THIS OFFICE IN LETTER DATED MAY 3, 1967, THAT YOUR ACTIVE DUTY WAS TERMINATED ON AUGUST 12, 1941,"* * * BECAUSE OF UNSATISFACTORY SERVICE.' PARAGRAPH 18, SPECIAL ORDERS NO. 220, HEADQUARTERS, 32D DIVISION, CAMP LIVINGSTON, LOUISIANA, DATED AUGUST 8, 1941, DIRECTED THAT YOU BE "RELIEVED FROM ACTIVE DUTY" ON AUGUST 12, 1941.

THE RECORD ALSO SHOWS THAT YOU WERE RECALLED TO ACTIVE DUTY DURING THE SIX-DAY PERIOD MAY 3 TO 8, 1943, AND THAT YOUR COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES WAS TERMINATED ON JUNE 29, 1943. IT IS EVIDENT, THEREFORE, THAT YOU WERE IN AN INACTIVE DUTY STATUS DURING ALL BUT SIX DAYS OF THE PERIOD FROM YOUR RELEASE FROM ACTIVE DUTY IN AUGUST 1941 TO JUNE 29, 1943. IF YOU ARE CLAIMING ACTIVE DUTY PAY FOR THAT PERIOD, YOUR ATTENTION IS INVITED TO THE FACT THAT NEARLY 24 YEARS ELAPSED BEFORE SUCH CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 9, 1967. EVEN IF YOU HAD A VALID CLAIM FOR SUCH PAY ON JUNE 29, 1943, THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WOULD BAR THIS OFFICE FROM EXERCISING ANY JURISDICTION IN THE MATTER.

THE CONTENTION IN YOUR LETTER OF MARCH 30, 1967, THAT YOU HAVE "MET THE CONDITIONS AS COVERED IN H.R. 3349," THE BILL (89TH CONGRESS) WHICH BECAME PUBLIC LAW 89-395, CANNOT BE SUBSTANTIATED. FIRST, YOU WERE NOT RETIRED PRIOR TO JUNE 1, 1942 (YOUR RELEASE FROM ACTIVE DUTY IN 1941 WAS NOT A RETIREMENT), AND HENCE, YOU DO NOT MEET THE SPECIFIC CONDITION OF CLAUSE (2) OF THE LAW. SECOND, IF YOUR CLAIM IS FOR ACTIVE DUTY PAY, PUBLIC LAW 86-395 HAS NO BEARING ON SUCH CLAIM SINCE IT IS DIRECTED EXCLUSIVELY TO "CLAIMS FOR INCREASED RETIRED PAY.' FINALLY, AS PREVIOUSLY INDICATED, THE BENEFITS OF THE LAW ACCRUE ONLY TO RETIRED OFFICERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES WHO WERE RETURNED TO AN INACTIVE DUTY STATUS (RE-RETIRED) AFTER MAY 31, 1942. YOU DO NOT MEET ANY OF THESE CONDITIONS. THE PROVISIONS OF PUBLIC LAW 89-395 HAVE NOTHING TO DO WITH ENTITLEMENT TO RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND IT APPEARS THAT YOUR RETIRED PAY HAS BEEN PROPERLY COMPUTED UNDER THAT ACT, INCLUDING CREDIT FOR YOUR INACTIVE DUTY FROM AUGUST 13, 1941, TO MAY 2, 1943, AND MAY 9 TO JUNE 29, 1943.

YOU HAVE MADE REFERENCE TO THE DECISION RENDERED JULY 16, 1965, BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF MOTTO V. UNITED STATES, CT.CL. NO. 43-64, STATING THAT YOU CONSIDER YOUR CASE "FITS EXACTLY THE QUOTED CASE. ILLEGAL DISCHARGE.' YOUR ATTENTION IS INVITED TO THE FACT THAT THE HOLDING OF THE COURT IN THE MOTTO CASE DID NOT INVOLVE RETIRED PAY. IT INVOLVED PROVISIONS OF LAW THAT ARE NOT APPLICABLE IN YOUR CIRCUMSTANCES AND FACTS WHICH ARE ENTIRELY DIFFERENT FROM THOSE RELATING TO YOUR RELEASE FROM ACTIVE DUTY ON AUGUST 12, 1941. WHILE THE RECORD INDICATES THAT AN ERRONEOUS DETERMINATION WAS MADE THAT YOUR STATUS AS A CAPTAIN IN THE NATIONAL GUARD OF THE UNITED STATES AUTOMATICALLY TERMINATED ON AUGUST 12, 1941, BY REASON OF THE TERMINATION OF YOUR FEDERAL RECOGNITION ON THAT DATE, THERE IS NO BASIS FOR QUESTIONING THE VALIDITY OF THE ORDERS OF AUGUST 8, 1941, IN EFFECTING YOUR RELEASE TO AN INACTIVE DUTY STATUS, SINCE YOUR SERVICE WAS REGARDED AS UNSATISFACTORY AT THAT TIME. AS STATED ABOVE, YOU HAVE RECEIVED FULL CREDIT FOR YOUR INACTIVE SERVICE FROM 1941 TO 1943.

IT BEING CLEAR THAT THE PROVISIONS OF PUBLIC LAW 89-395 DO NOT RELATE TO THE MATTER OF ACTIVE DUTY PAY AND THAT SUCH STATUTORY PROVISIONS DO NOT AFFECT YOUR RIGHT TO THE RETIRED PAY YOU HAVE BEEN RECEIVING UNDER THE 1948 ACT, THERE IS NO BASIS FOR THE PAYMENT OF ANY ADDITIONAL SUM TO YOU. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.