B-16666, MAR. 24, 1967

B-16666: Mar 24, 1967

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RETIRED: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 24 AND 25 AND FEBRUARY 10. WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION BY SETTLEMENT DATED OCTOBER 5. IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY NAVY. WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY. (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31. THE PURPOSE OF THE ACT WAS TO WAIVE THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9. 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 OF LIMITATIONS.

B-16666, MAR. 24, 1967

TO COMMANDER ROY A. DARLING, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 24 AND 25 AND FEBRUARY 10, 11 AND 12, 1967, CONCERNING YOUR CLAIM FOR "INCREASED RETIRED PAY" UNDER THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT 120, WHICH CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION BY SETTLEMENT DATED OCTOBER 5, 1966, COPY HEREWITH.

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 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 PURPOSE OF THE ACT WAS TO WAIVE THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, WITH RESPECT TO CERTAIN OFFICERS WHO 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 CERTAIN COURT DECISIONS INTERPRETING THAT PARAGRAPH. 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 OF LIMITATIONS.

THE RECORD DISCLOSES THAT IN THE CASE OF DARLING V. UNITED STATES,CT.CL. NO. 229-58, THE DEFENDANT FILED AN ADMISSION OF LIABILITY ON SEPTEMBER 21, 1959, STATING THAT YOU WERE ENTITLED TO RECOVERY IN ACCORDANCE WITH SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 820, AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THEREAFTER, BASED ON A COMPUTATION OF THE AMOUNT FOUND DUE FURNISHED BY THIS OFFICE, JUDGMENT WAS RENDERED IN YOUR FAVOR ON NOVEMBER 20, 1959, FOR $10,835.53, REPRESENTING RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 30 YEARS OF CREDITABLE ACTIVE AND INACTIVE SERVICE (BASED ON THE ACTIVE DUTY RATES OR PAY PRESCRIBED IN THE 1942 ACT, AS AMENDED) WITH INCREASES IN RETIRED PAY AS PROVIDED IN SUBSEQUENT PROVISIONS OF LAW EFFECTIVE MAY 1, 1952, APRIL 1, 1955, AND JUNE 1, 1958, TO SEPTEMBER 30, 1959. YOUR CLAIM FOR THE PERIOD PRIOR TO MAY 1, 1952, WAS BARRED UNDER THE PROVISIONS OF 28 U.S.C. 2501. THE AMOUNT OF THE JUDGMENT WAS ALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 10, 1959.

A CLAIM FOR THE SAME BENEFITS FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1952, WAS FILED WITH OUR OFFICE AND BY SETTLEMENT DATED JULY 22, 1960, OUR CLAIMS DIVISION ALLOWED YOU AN ADDITIONAL SUM OF $3,463.32.

IN VIEW OF THE FACT THAT YOU WERE NOT RETIRED AS A REGULAR ARMY OFFICER, YOUR RIGHT TO INCREASED RETIRED PAY AROSE SOLELY BY VIRTUE OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949 WHICH GRANTED MEMBERS OF RESERVE COMPONENTS AWARDED RETIRED PAY BECAUSE OF PHYSICAL DISABILITY, THE SAME PAY RIGHTS "PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES.' SINCE THERE WAS NO PROVISION IN THAT ACT FOR RETROACTIVE APPLICATION OF SECTION 402 (I), YOUR RIGHT TO RECEIVE THE ADDITIONAL RETIRED PAY THERETOFORE PAYABLE ONLY TO CERTAIN RETIRED MEMBERS OF THE REGULAR SERVICES UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, DID NOT COMMENCE UNTIL OCTOBER 1, 1949.

IT IS TO BE NOTED THAT THE ABOVE-QUOTED PROVISIONS OF PUBLIC LAW 89 395 DO NOT GRANT AN INCREASE IN RETIRED PAY. THE LAW MERELY WAIVES THE STATUTE OF LIMITATIONS IN CONNECTION WITH THE CONSIDERATION OF CERTAIN RETIRED PAY CLAIMS OTHERWISE AUTHORIZED BY STATUTE. THE BENEFITS INVOLVED UNDER THAT LAW 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, AUTHORIZING CERTAIN RETIRED PAY FOR 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 THE RETIRED LIST 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 RELATIVELY SMALL NUMBER OF REGULAR 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 THE BARRED PORTION OF THESE CLAIMS.

IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE AND THE UNITED STATES COURT OF CLAIMS THAT (ABSENT A PROVISION SUCH AS SECTION 402 (I) OF THE 1949 ACT) THE FOURTH PARAGRAPH OF SECTION 15 APPLIES ONLY TO RETIRED COMMISSIONED OFFICERS OF A REGULAR COMPONENT AND NOT TO RESERVE OFFICERS. SEE 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).

YOU WERE RETIRED EFFECTIVE MAY 8, 1925, FOR PHYSICAL DISABILITY INCURRED WHILE SERVING AS A MEMBER OF THE UNITED STATES NAVAL RESERVE. AS A RETIRED RESERVE OFFICER YOU WERE ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT ONLY BY VIRTUE OF THE SPECIAL PROVISIONS CONTAINED IN SECTION 402 (I) OF THE 1949 ACT GRANTING CERTAIN RESERVE OFFICERS THE SAME RIGHTS AS MEMBERS OF THE REGULAR SERVICES. YOU HAVE BEEN DENIED THOSE BENEFITS FOR THE PERIOD PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE 1949 ACT, NOT BECAUSE THAT PART OF YOUR CLAIM WAS BARRED BY THE 1940 ACT, BUT BECAUSE SECTION 402 (I) WAS NOT RETROACTIVE IN SCOPE. SINCE NO PART OF YOUR CLAIM HAS BEEN BARRED BY THE 1940 ACT PUBLIC LAW 89-395 HAS NO BEARING IN YOUR CASE. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 5, 1966, IS SUSTAINED.

IN ACCORDANCE WITH YOUR REQUEST THERE IS ENCLOSED HEREWITH A COPY OF OUR LETTER OF MARCH 16, 1965.