B-167221, AUG. 6, 1969

B-167221: Aug 6, 1969

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MEMBER WHO RETIRED AS ENLISTED MAN RATHER THAN OFFICER AND WHO WAS NOT ADVANCED ON THE RETIRED LIST UNTIL MORE THAN A YEAR AFTER REVERSION TO A RETIRED ENLISTED STATUS DOES NOT COME UNDER INCREASED RETIRED PAY PROVISIONS OF PUBLIC LAW 89-395 APPLICABLE TO MEMBERS RETIRED AS OFFICERS. RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 22. 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.

B-167221, AUG. 6, 1969

MILITARY - RETIRED PAY DECISION TO RETIRED WARRANT OFFICER DENYING CLAIM FOR INCREASE IN RETIRED PAY UNDER PUBLIC LAW 89-395. MEMBER WHO RETIRED AS ENLISTED MAN RATHER THAN OFFICER AND WHO WAS NOT ADVANCED ON THE RETIRED LIST UNTIL MORE THAN A YEAR AFTER REVERSION TO A RETIRED ENLISTED STATUS DOES NOT COME UNDER INCREASED RETIRED PAY PROVISIONS OF PUBLIC LAW 89-395 APPLICABLE TO MEMBERS RETIRED AS OFFICERS.

TO CHIEF WARRANT OFFICER GEORGE W. BOLES, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 22, 1969, IN EFFECT REQUESTING REVIEW OF THE ACTION OF OUR CLAIMS DIVISION BY LETTER DATED DECEMBER 12, 1966, DENYING YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUBLIC LAW 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 RETIRED 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 RELATED 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 OF LIMITATIONS.

THE RECORDS SHOW THAT YOU ENLISTED IN THE UNITED STATES NAVY ON NOVEMBER 29, 1905; THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS F- 4C, ON APRIL 15, 1929; AND THAT YOU WERE PLACED ON THE RETIRED LIST AS AN ENLISTED MAN ON JANUARY 1, 1941. ON JANUARY 27, 1942, YOU WERE RECALLED TO ACTIVE DUTY AND SERVED UNTIL FEBRUARY 26, 1945, WHEN YOU REVERTED TO YOUR RETIRED ENLISTED STATUS. YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER (CHIEF PHARMACIST) ON APRIL 23, 1946, FOLLOWING THE ENACTMENT OF SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, WHICH AMENDED SECTION 10 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 605, IN A MANNER WHICH AUTHORIZED SUCH ADVANCEMENT.

YOUR CLAIM DATED MAY 26, 1966, RECEIVED IN THIS OFFICE ON MAY 31, 1966, WAS MADE ON THE BASIS THAT YOU MET THE CRITERIA OUTLINED IN THE ACT OF APRIL 14, 1966, AND THAT YOU ARE THEREFORE ENTITLED TO BENEFITS UNDER THAT LAW.

IN THE CASE OF JONES V UNITED STATES, 151 CT. CL. 119 (1960), IN WHICH THE COURT HAD FOR CONSIDERATION THE SITUATION 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 INCREASED RETIRED PAY UPON RE-RETIREMENT PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SEE THE 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. SEE COPY OF ORDERS DATED OCTOBER 23, 1940, ENCLOSED HEREWITH, EFFECTING YOUR RETIREMENT. YOU WERE NOT ADVANCED ON THE RETIRED LIST UNTIL MORE THAN A YEAR AFTER YOU REVERTED TO A RETIRED ENLISTED STATUS ON FEBRUARY 27, 1945.

THE ACT OF APRIL 14, 1966, IS APPLICABLE ONLY TO MEMBERS WHO RETIRED AS OFFICERS AND THUS WERE ENTITLED TO RE-RETIREMENT RIGHTS UNDER THE 1942 ACT. SINCE YOU WERE NOT RETIRED AS AN OFFICER, NEITHER OF THOSE ACTS IS APPLICABLE TO YOU.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION DATED DECEMBER 12, 1966, WAS CORRECT AND IS SUSTAINED.