B-161423, JUN. 9, 1967

B-161423: Jun 9, 1967

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RETIRED: FURTHER REFERENCE IS MADE YOUR LETTER DATED APRIL 12. 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. THE SOLE PURPOSE OF THE ACT WAS TO WAIVE THE PROVISIONS OF THE 10 YEAR BARRING ACT OF OCTOBER 9. 134 CT.CL. 840 (1956) AND OTHER DECISIONS INTERPRETING THAT PARAGRAPH AND WHO HAD BEEN DENIED A PORTION OF THE AMOUNT OF INCREASED RETIRED PAY BECAUSE A CLAIM THEREFOR WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

B-161423, JUN. 9, 1967

TO CHIEF WARRANT OFFICER HENRY H. TINGLER, USN, RETIRED:

FURTHER REFERENCE IS MADE YOUR LETTER DATED APRIL 12, 1967,ADDRESSED TO THE COMPTROLLER OF THE TREASURY IN EFFECT REQUESTING REVIEW OF THE ACTION OF OUR CLAIMS DIVISION BY LETTER DATED JULY 11, 1966, DENYING YOUR CLAIM FOR INCREASED RETIRED PAY YOU BELIEVE TO BE DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120.

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, 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: 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.'

THE SOLE PURPOSE OF THE ACT WAS TO WAIVE THE PROVISIONS OF THE 10 YEAR BARRING ACT OF OCTOBER 9, 1940, WITH RESPECT TO CERTAIN OFFICERS MEETING THE CRITERIA OUTLINED THEREIN WHO HAD CLAIMED INCREASED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368 AND THE CASE OF GORDON V UNITED STATES, 134 CT.CL. 840 (1956) AND OTHER DECISIONS INTERPRETING THAT PARAGRAPH AND WHO HAD BEEN DENIED A PORTION OF THE AMOUNT OF INCREASED RETIRED PAY BECAUSE A CLAIM THEREFOR WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. 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 LIMITATIONS. THE ACT DID NOT AFFECT THE TIME LIMITATION OF THE ACT OF OCTOBER 9, 1940, WITH RESPECT TO CLAIMS OF PERSONS FOR INCREASED RETIREMENT BENEFITS UNDER OTHER LAWS OR DECISIONS.

THE RECORD SHOWS THAT YOU ENLISTED IN THE U.S. NAVY ON DECEMBER 13, 1905; THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON JANUARY 6, 1926; AND THAT YOU WERE RETIRED JANUARY 1, 1936, AS AN ENLISTED MAN. ON MARCH 25, 1942, YOU WERE RECALLED TO ACTIVE DUTY AND SERVED UNTIL DECEMBER 15, 1944, WHEN YOU REVERTED TO YOUR RETIRED ENLISTED STATUS. YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (CHIEF SHIP'S CLERK) ON MAY 28, 1948, AND YOUR APPLICATION TO BE RESTORED TO FORMER ENLISTED STATUS WAS APPROVED BY THE SECRETARY OF THE NAVY ON JULY 31, 1948.

YOUR CLAIM FOR ADJUSTMENT OF RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1946, TO JUNE 30, 1956, RECEIVED IN THIS OFFICE ON NOVEMBER 13, 1958, WAS MADE FOLLOWING THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF TATO V. UNITED STATES, 136 CT.CL. 651 (1956), ADHERED TO IN THE CASE OF ATKINS V. UNITED STATES, 141 CT.CL. 88 (1958) AND OUR DECISION B 129777 OF MARCH 7, 1958, 37 COMP. GEN. 591, IN WHICH WE DECIDED NOT TO QUESTION OTHERWISE PROPER PAYMENTS OF RETIRED PAY MADE ON AUTHORITY OF THE TATO AND ATKINS CASES AND AGREED TO ALLOW SIMILAR CLAIMS SUBMITTED TO THIS OFFICE FOR SETTLEMENT IN THE AMOUNT FOUND DUE. YOUR CLAIM WAS ALLOWED IN THE AMOUNT OF $3,343.89 BY SETTLEMENT DATED APRIL 9, 1959. HOWEVER, THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO NOVEMBER 13, 1948, WAS DISALLOWED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

YOUR CLAIM DID NOT FIRST ACCRUE ON THE DATE OF THE COURT'S DECISION IN THE TATO CASE OR ON THE DATE OF OUR DECISION OF MARCH 7, 1958, BUT AS OF THE TIME YOU ACQUIRED THE RIGHT TO RETIRED PAY AND IT ACCRUED THEREAFTER ON A DAY-TO-DAY BASIS. THE DECISIONS MENTIONED ABOVE ONLY PLACED A DIFFERENT INTERPRETATION ON YOUR STATUS THAN HAD BEEN PREVIOUSLY APPLIED TO COMMISSIONED WARRANT OFFICERS IN RELATION TO THE DUAL COMPENSATION PROVISIONS OF THE ECONOMY ACT. SUCH CHANGED INTERPRETATION DID NOT AFFECT IN ANY WAY THE OPERATION OF THE 10-YEAR LIMITATION OF THE BARRING ACT OF OCTOBER 9, 1940.

IN THE CASE OF JONES V. UNITED STATES, 151 CT.CL. 119 (1960), IN WHICH THE COURT HAD FOR CONSIDERATION THE CASE OF A MAN WITH A SERVICE RECORD SIMILAR TO YOURS, THE COURT HELD THAT, SINCE THE PLAINTIFF'S TEMPORARY OFFICER APPOINTMENT TERMINATED BY OPERATION OF LAW ON THE LAST DAY OF HIS ACTIVE SERVICE AS AN OFFICER, HE REVERTED TO HIS RETIRED ENLISTED STATUS. HE WAS ADVANCED TO OFFICER RANK ON THE RETIRED LIST AS A SEPARATE TRANSACTION. IT WAS CONCLUDED THAT SINCE HE COULD NOT HAVE RETIRED AS AN OFFICER UNDER THE PROVISIONS OF THE APPLICABLE STATUTE, HE COULD NOT BE A RETIRED OFFICER WHO QUALIFIED FOR RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SEE ENCLOSED COPY OF OUR DECISION OF SEPTEMBER 1, 1966, B-139914, WHICH QUOTES PERTINENT PARTS OF THE COURT'S DECISION IN THE JONES CASE. YOUR RETIRED PAY STATUS FALLS SQUARELY WITHIN THE RULE OF THE JONES DECISION SINCE YOU WERE RETIRED AS AN ENLISTED MAN RATHER THAN AN OFFICER.

THE ACT OF APRIL 14, 1966, IS APPLICABLE ONLY TO MEMBERS WHO RETIRED AS OFFICERS AND, SINCE YOU WERE NOT RETIRED AS AN OFFICER, THAT ACT IS NOT APPLICABLE TO YOU.

ACCORDINGLY, SETTLEMENT OF APRIL 9, 1959, WAS CORRECT AND NO AMOUNT IS FOUND TO BE DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966.