A-35865, NOV. 4, 1964
Highlights
THE COURT OF CLAIMS HELD THAT YOU WERE RETIRED UNDER THE PROVISIONS OF SECTION 1251. SUCH RETIREMENT WAS IN THE ACTUAL RANK HELD BY YOU (LIEUTENANT) AT THE DATE OF RETIREMENT (SECTION 1254. THE COURT ALSO SAID THAT IT IS WELL SETTLED THAT THE RANK AND PAY OF RETIRED OFFICERS BECOME FIXED UPON THE DATE OF THEIR RETIREMENT AND ARE GOVERNED BY THE LAW IN FORCE AT THAT TIME. YOU ARE ADVISED THAT THE PROVISIONS OF THE 1947 ACT ON WHICH YOU RELY ARE NOT RETROACTIVE IN SCOPE AND THEY DO NOT PURPORT TO GRANT NEW RIGHTS TO OFFICERS WHOSE RETIRED PAY RIGHTS VESTED AND BECAME FIXED BEFORE THAT ACT WAS ENACTED INTO LAW.
A-35865, NOV. 4, 1964
TO LIEUTENANT FRED B. HANCHETT, USA, RETIRED:
BY LETTER DATED SEPTEMBER 30, 1964, YOUR ATTORNEY REFERRED HERE FOR CONSIDERATION YOUR APPLICATION FOR CORRECTION OF MILITARY OR NAVAL RECORD (DD FORM 149), DATED SEPTEMBER 23, 1964, REQUESTING CORRECTION OF YOUR RECORDS TO SHOW YOUR PROMOTION ON NOVEMBER 2, 1921, FROM FIRST LIEUTENANT TO CAPTAIN, U.S. ARMY, AND CLAIMING RETIRED PAY BASED ON THE GRADE OF CAPTAIN RATHER THAN THAT RECEIVED IN THE GRADE OF FIRST LIEUTENANT FROM SEPTEMBER 30, 1954.
YOUR CLAIM INVOLVES THE IDENTICAL ISSUES AND SUBJECT MATTER CONSIDERED IN THE CASE OF FRED B. HANCHETT V. UNITED STATES, 60 CT.CL. 44 (1924), EXCEPT THAT YOU NOW CLAIM THE DIFFERENCE IN PAY FOR A DIFFERENT PERIOD OF TIME AND BASE YOUR CLAIM ON A DIFFERENT PROVISION OF LAW; NAMELY, SECTION 507/A) (7) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 893, REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 677.
THE COURT OF CLAIMS HELD THAT YOU WERE RETIRED UNDER THE PROVISIONS OF SECTION 1251, REVISED STATUTES, FOR DISABILITY FOUND BY A RETIRING BOARD. SUCH RETIREMENT WAS IN THE ACTUAL RANK HELD BY YOU (LIEUTENANT) AT THE DATE OF RETIREMENT (SECTION 1254, R.S.) AND NOT UNDER SECTION 3 OF THE ACT OF OCTOBER 1, 1890, CH. 1241 26 STAT. 562, PROVIDING THAT SHOULD AN OFFICER FAIL IN HIS PHYSICAL EXAMINATION (FOR PROMOTION) AND BE FOUND INCAPACITATED FOR SERVICE BY REASON OF DISABILITY CONTRACTED IN LINE OF DUTY HE WOULD BE RETIRED WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED. THE COURT ALSO SAID THAT IT IS WELL SETTLED THAT THE RANK AND PAY OF RETIRED OFFICERS BECOME FIXED UPON THE DATE OF THEIR RETIREMENT AND ARE GOVERNED BY THE LAW IN FORCE AT THAT TIME.
SECTION 2519, TITLE 28, U.S. CODE, PROVIDES: "A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTER INVOLVED IN THE CASE OR CONTROVERSY.' ACCORDINGLY, FURTHER CONSIDERATION BY THIS OFFICE OF YOUR CLAIM WOULD NOT BE PROPER. IN THIS CONNECTION, YOU ARE ADVISED THAT THE PROVISIONS OF THE 1947 ACT ON WHICH YOU RELY ARE NOT RETROACTIVE IN SCOPE AND THEY DO NOT PURPORT TO GRANT NEW RIGHTS TO OFFICERS WHOSE RETIRED PAY RIGHTS VESTED AND BECAME FIXED BEFORE THAT ACT WAS ENACTED INTO LAW.