B-84565, NOV. 7, 1957

B-84565: Nov 7, 1957

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RETIRED: FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 3. IT APPEARS THAT YOU WERE RETIRED FOR PHYSICAL DISABILITY ON DECEMBER 31. THAT YOU WERE IN AN INACTIVE STATUS ON THE RETIRED LIST FROM JANUARY 1. APPARENTLY IS BASED UPON THE HOLDING IN GORDON V. IN WHICH IT WAS HELD THAT AN OFFICER NEED NOT INCUR ANY PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT AS A REQUISITE FOR "RE RETIREMENT"(WITH THE BENEFIT OF CREDIT FOR INACTIVE TIME ON THE RETIRED LIST) WITHIN THE INTENT OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE GORDON CASE WAS THE SUBJECT OF A DECISION OF APRIL 1. IT WAS CONCLUDED FOR THE REASONS STATED THEREIN. THIS PHASE OF THE DISALLOWANCE IS SUSTAINED.

B-84565, NOV. 7, 1957

TO LIEUTENANT COLONEL JAMES B. HARRINGTON, USA, RETIRED:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 3, 1957, FROM YOUR ATTORNEYS, ANSELL AND ANSELL, REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 8, 1957, WHICH DISALLOWED YOUR CLAIMS FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A COLONEL WITH 27 YEARS' SERVICE AND RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE-DUTY PAY OF A LIEUTENANT COLONEL WITH 24 YEARS' SERVICE FOR THE PERIOD MAY 1, 1947, TO SEPTEMBER 30, 1949, AND FOR THE DIFFERENCE, BEGINNING OCTOBER 1, 1949, BETWEEN RETIRED PAY COMPUTED AS 67 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF A COLONEL WITH 26 YEARS' SERVICE AND RETIRED PAY COMPUTED AS 67 1/2 PERCENTUM OF THE ACTIVE-DUTY PAY OF A LIEUTENANT COLONEL WITH 26 YEARS' SERVICE.

IT APPEARS THAT YOU WERE RETIRED FOR PHYSICAL DISABILITY ON DECEMBER 31, 1938, WITH ACTIVE SERVICE--- INCLUDING SERVICE DURING WORLD WAR I- - OF 21 YEARS, 3 MONTHS, 21 DAYS; THAT YOU WERE IN AN INACTIVE STATUS ON THE RETIRED LIST FROM JANUARY 1, 1939, TO JUNE 13, 1941, A PERIOD OF 2 YEARS, 5 MONTHS, 13 DAYS; AND THAT YOU SERVED ON ACTIVE DUTY AS A RETIRED OFFICER FROM JUNE 14, 1941, TO SEPTEMBER 20, 1946, A PERIOD OF 5 YEARS, 3 MONTHS, 7 DAYS. THUS, YOU HAD ACTIVE DUTY BEFORE AND AFTER RETIREMENT AGGREGATING 21 YEARS, 6 MONTHS, 28 DAYS AND INACTIVE SERVICE BETWEEN DATE OF RETIREMENT AND DATE OF RECALL TO ACTIVE DUTY OF 2 YEARS, 5 MONTHS, 13 DAYS, AN OVERALL TOTAL OF 29 YEARS, 11 DAYS.

YOUR CLAIM FOR SERVICE CREDIT FOR 27 YEARS RATHER THAN 24 YEARS FOR THE PERIOD MAY 1, 1947, TO SEPTEMBER 30, 1949, APPARENTLY IS BASED UPON THE HOLDING IN GORDON V. UNITED STATES, 124 C.CLS. 840, IN WHICH IT WAS HELD THAT AN OFFICER NEED NOT INCUR ANY PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY AFTER RETIREMENT AS A REQUISITE FOR "RE RETIREMENT"(WITH THE BENEFIT OF CREDIT FOR INACTIVE TIME ON THE RETIRED LIST) WITHIN THE INTENT OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE GORDON CASE WAS THE SUBJECT OF A DECISION OF APRIL 1, 1957, B- 130797, TO ANSELL AND ANSELL, CONCERNING THE CASE OF ROBERT C. BECKETT, AND IT WAS CONCLUDED FOR THE REASONS STATED THEREIN, THAT THE DECISION OF THE COURT WOULD NOT BE FOLLOWED IN THE SETTLEMENT OF OTHER CLAIMS. ACCORDINGLY, THIS PHASE OF THE DISALLOWANCE IS SUSTAINED.

YOUR CONTENTION THAT YOU ARE ENTITLED TO THE RETIRED PAY OF A COLONEL INSTEAD OF A LIEUTENANT COLONEL FOR PERIODS BOTH BEFORE AND AFTER OCTOBER 1, 1949, WAS DISPOSED OF ADVERSELY TO YOU IN JAMES B. HARRINGTON V. UNITED STATES, 122 C.CLS. 456. HENCE, THE QUESTION WOULD APPEAR TO BE RES JUDICATA AND THIS PHASE OF THE DISALLOWANCE ALSO IS SUSTAINED. 5 COMP. GEN. 334; COMPARE 36 COMP. GEN. 501.