A-16666, AUG. 28, 1968

A-16666, AUG. 28, 1968

TO COMMANDER ROY A. DARLING:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 8, 1968, FURTHER CONCERNING YOUR RETIRED PAY STATUS AS A RETIRED OFFICER OF THE UNITED STATES NAVAL RESERVE.

A BRIEF RESTATEMENT OF YOUR RETIRED PAY STATUS MAY BE HELPFUL. YOU WERE RETIRED IN THE GRADE OF LIEUTENANT, U.S. NAVAL RESERVE FORCE ON MAY 8, 1925, BY REASON OF PHYSICAL DISABILITY PURSUANT TO THE AUTHORITY OF PRIVATE LAW 268, 68TH CONGRESS, MARCH 4, 1925, CH. 584, 43 STAT. 1600, AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2, ACT OF JUNE 4, 1920, CH. 228, 41 STAT. 834, AS AMENDED BY SECTION 6, ACT OF JULY 12, 1921, CH. 44, 42 STAT. 140.

YOU WERE RECALLED TO ACTIVE DUTY EFFECTIVE JUNE 5, 1940, AND SERVED ON ACTIVE DUTY THROUGH DECEMBER 15, 1945, ON WHICH LATTER DATE YOU WERE SERVING IN THE GRADE OF COMMANDER WITH OVER 30 YEARS OF SERVICE (INCLUDING CREDIT FOR 15 YEARS AND 27 DAYS, THE PERIOD OF YOUR INACTIVE TIME ON THE RETIRED LIST FROM MAY 8, 1925, TO JUNE 4, 1940, INCLUSIVE) CREDITABLE FOR ACTIVE DUTY PAY AND ALLOWANCES. YOUR ACTIVE DUTY PAY AT THAT TIME WAS COMPUTED AS FOLLOWS: BASIC PAY AT $333.33 PER MONTH PLUS 10 LONGEVITY INCREASES ("FOGIES") OF 5 PERCENT EACH, $16.66, OR $166.66 FOR A TOTAL OF $500 PER MONTH. THAT RATE WAS INCREASED TO $550 PER MONTH BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343. YOUR RETIRED PAY HAS BEEN COMPUTED ON THE LATTER RATE SINCE OCTOBER 1, 1949, INCLUDING THE PERCENTAGE INCREASES AUTHORIZED BY SUBSEQUENT RETIRED PAY INCREASE LEGISLATION.

UNDER THE APPLICABLE PROVISIONS OF LAW IN FORCE IN 1945, YOU RECEIVED RETIRED PAY EFFECTIVE FROM DECEMBER 16, 1945, COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 15 YEARS OF CREDITABLE SERVICE (ALL THE SERVICE, ACTIVE AND INACTIVE, CREDITABLE ON DATE OF YOUR RETIREMENT, MAY 8, 1925, PLUS THE ENTIRE PERIOD OF YOUR ACTIVE DUTY FROM JUNE 5, 1940, TO DECEMBER 15, 1945, INCLUSIVE). RETIRED PAY ON THAT BASIS WAS CORRECTLY PAID THROUGH SEPTEMBER 30, 1949.

THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368 (WHICH YOU SEEM TO BELIEVE ENTITLED YOU TO RECEIVE RETIRED PAY DURING THE PERIOD DECEMBER 16, 1945, TO SEPTEMBER 30, 1949, INCLUSIVE, COMPUTED AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY OF A COMMANDER WITH OVER 30 YEARS OF CREDITABLE SERVICE), HAVE BEEN JUDICIALLY DTERMINED TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES. SEE ALBERT G. BERRY, JR. V UNITED STATES, 123 CT. CL. 530 (1952), FRANK F. REYNOLDS V UNITED STATES, 125 CT. CL. 108 (1953), AND JOHN C. ABBOTT, ET AL. V UNITED STATES, 152 CT. CL. 798 (1961). SINCE YOU ARE A RETIRED OFFICER OF THE NAVAL RESERVE (NOT THE REGULAR NAVY), THE BENEFITS OF THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, ABOVE REFERRED TO -- ALLOWING INCREASED RETIRED PAY BASED ON INACTIVE TIME IN A RETIRED STATUS -- WHICH BECAME EFFECTIVE ON JUNE 1, 1942, DID NOT ACCRUE TO YOU PRIOR TO OCTOBER 1, 1949, AND THEN ONLY BY VIRTUE OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 820, WHICH PROVIDED (PROSPECTIVELY ONLY, NOT RETROACTIVELY):

"ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES.'

THE MATTER OF YOUR RETIRED PAY STATUS AND THE PROPER RATES OF RETIRED PAY PAYABLE TO YOU SINCE DECEMBER 16, 1945, HAVE BEEN CONSIDERED AND RECONSIDERED SEVERAL TIMES BY THIS OFFICE. YOU HAVE BEEN FURNISHED DETAILED COMPUTATIONS SHOWING THAT SINCE DECEMBER 16, 1945, YOU HAVE RECEIVED RETIRED PAY COMPUTED ON THE BASIS MOST FAVORABLE TO YOU IN ACCORDANCE WITH THE PROVISIONS OF LAW APPLICABLE IN YOUR CASE. ADDITIONAL AMOUNT OF RETIRED PAY IS DUE YOU AND FURTHER CORRESPONDENCE RELATING TO THIS MATTER WOULD SEEM TO SERVE NO USEFUL PURPOSE.