B-146052, NOV. 9, 1961

B-146052: Nov 9, 1961

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ATTORNEY AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MAY 29 AND JUNE 16. DISALLOWED COLONEL KELLY'S CLAIM STATING THAT THERE WAS NO EVIDENCE OF RECORD THAT HE HAD EVER BEEN PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 29. THAT THE PLACING OF A MEMBER OF THE ARMED FORCES UPON A RETIRED LIST IS A MATTER FOR THE CONSIDERATION OF THE APPROPRIATE ADMINISTRATIVE DEPARTMENT. YOU STATE THAT COLONEL KELLY "IS IN EFFECT" ON THE ARMY OF THE UNITED STATES RETIRED LIST. IS CONSIDERED BY THE DEPARTMENT OF THE ARMY AS A TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST IN ACCORDANCE WITH THE ARMED FORCES RESERVE ACT OF 1952. SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF FIFTY POINTS * * *.'.

B-146052, NOV. 9, 1961

TO THOMAS J. ALDUK, ATTORNEY AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MAY 29 AND JUNE 16, 1961, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF COLONEL JAMES H. KELLY FOR RETIRED PAY BELIEVED TO BE DUE UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087.

BY SETTLEMENT DATED MAY 26, 1961, THE GENERAL ACCOUNTING OFFICE,CLAIMS DIVISION, DISALLOWED COLONEL KELLY'S CLAIM STATING THAT THERE WAS NO EVIDENCE OF RECORD THAT HE HAD EVER BEEN PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 29, 1948, SUPRA, OR ANY OTHER STATUTE, AND THAT THE PLACING OF A MEMBER OF THE ARMED FORCES UPON A RETIRED LIST IS A MATTER FOR THE CONSIDERATION OF THE APPROPRIATE ADMINISTRATIVE DEPARTMENT.

YOU STATE THAT COLONEL KELLY "IS IN EFFECT" ON THE ARMY OF THE UNITED STATES RETIRED LIST, ON THE PREMISE THAT HIS TRANSFER TO THE "HONORARY RESERVE" ON DECEMBER 1, 1952, IS CONSIDERED BY THE DEPARTMENT OF THE ARMY AS A TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST IN ACCORDANCE WITH THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 481, AND THE 1948 ACT.

SECTION 302 OF THE 1948 ACT (PUBLIC LAW 810, 80TH CONGRESS), AS AMENDED, 10 U.S.C. 1036A, 1952 EDITION, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"/A) ANY PERSON WHO, UPON ATTAINING OR HAVING ATTAINED THE AGE OF SIXTY YEARS, HAS PERFORMED SATISFACTORY FEDERAL SERVICE AS DEFINED IN THIS SECTION IN THE STATUS OF A COMMISSIONED OFFICER * * * IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, INCLUDING THE RESPECTIVE RESERVE COMPONENTS THEREOF * * * AND HAS COMPLETED AN AGGREGATE OF TWENTY OR MORE YEARS OF SUCH SATISFACTORY SERVICE IN ANY OR ALL OF THE AFORESAID SERVICES, SHALL, UPON APPLICATION THEREFOR, BE GRANTED RETIRED PAY: * * *

"/B) SUBSEQUENT TO JULY 1, 1949, A YEAR OF SATISFACTORY FEDERAL SERVICE, FOR THE PURPOSE OF THIS SECTION ONLY, SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF FIFTY POINTS * * *.'

IT IS REPORTED BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, THAT AS OF JUNE 30, 1950, COLONEL KELLY HAD ACQUIRED 19 YEARS, 8 MONTHS AND 12 DAYS QUALIFYING (SATISFACTORY) FEDERAL SERVICE CREDITABLE FOR RETIREMENT PURPOSES UNDER THE STATUTE QUOTED ABOVE. IT IS FURTHER REPORTED THAT FOR THE PERIOD JULY 1, 1950, TO JUNE 30, 1951, COLONEL KELLY EARNED BUT 15 RETIREMENT POINTS, AND FOR THE PERIOD JULY 1, 1951, THROUGH MAY 2, 1952, THE DATE OF HIS SIXTIETH BIRTHDAY HE EARNED BUT 13 RETIREMENT POINTS. HENCE, THE PERIOD JULY 1, 1950, THROUGH MAY 2, 1952, WAS NOT SATISFACTORY FEDERAL SERVICE CREDITABLE FOR RETIREMENT, AND UPON COLONEL KELLY'S SIXTIETH BIRTHDAY HE HAD NOT ACQUIRED THE NECESSARY 20 QUALIFYING YEARS OF SERVICE FOR TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST. HIS TRANSFER TO THE HONORARY RESERVE ON DECEMBER 1, 1952, WAS NOT A TRANSFER TO THE RETIRED LIST AUTHORIZED TO BE ESTABLISHED BY THE 1948 ACT AND IT IS CLEAR THAT THE DEPARTMENT OF THE ARMY DID NOT CONSIDER SUCH TRANSFER AS A TRANSFER TO THAT LIST SINCE NO RETIRED PAY HAS BEEN PAID TO HIM. HIS SERVICE DOES NOT ENTITLE HIM TO SUCH PAY.

THE ARMED FORCES RESERVE ACT OF 1952 WAS NOT A RETIREMENT STATUTE, BUT AN ACT TO REORGANIZE AND STRENGTHEN THE RESERVE COMPONENTS OF THE ARMED FORCES. A RETIRED RESERVE IN EACH OF THE ARMED FORCES OF THE UNITED STATES WAS ESTABLISHED IN SECTION 204 OF THE ACT, IN ADDITION TO A READY RESERVE AND A STANDBY RESERVE, AND THIS SECTION REQUIRED THAT EACH MEMBER OF A RESERVE COMPONENT BE PLACED IN ONE OF THOSE CATEGORIES. THE RECORD SHOWS THAT COLONEL KELLY WAS GIVEN A STATUS IN THE RETIRED RESERVE IN 1953.

SECTIONS 207 AND 213 OF THE ARMED FORCES RESERVE ACT OF 1952, PROVIDED IN PERTINENT PART AS FOLLOWS:

"SEC. 207 (A) THE RETIRED RESERVE CONSISTS OF THOSE MEMBERS OF THE RESERVE COMPONENTS WHOSE NAMES ARE PLACED ON RESERVE RETIRED LISTS ESTABLISHED PURSUANT TO SUBSECTION (B) OF THIS SECTION.

(B) IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE APPROPRIATE SECRETARY, RESERVE RETIRED LISTS SHALL BE ESTABLISHED UPON WHICH WILL BE PLACED THE NAMES OF THOSE MEMBERS OF THE RESERVE COMPONENTS WHO MAKE APPLICATION THEREFOR, IF OTHERWISE QUALIFIED. SUCH RESERVE RETIRED LISTS SHALL BE IN ADDITION TO THE ARMY OF THE UNITED STATES RETIRED LIST * * * AUTHORIZED PURSUANT TO SECTION 301 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, AS AMENDED. * * *"

"SEC. 213. (A) EVERY PERSON WHO IS A MEMBER OF A RESERVE COMPONENT ON THE EFFECTIVE DATE OF THIS ACT SHALL BE DEEMED, WITHOUT FURTHER ACTION, TO RETAIN HIS ACTIVE, INACTIVE, OR RETIRED STATUS IN HIS RESERVE COMPONENT. ANY SUCH MEMBER IN AN HONORARY RESERVE STATUS OR AN HONORARY RETIRED RESERVE STATUS WHEN THIS ACT TAKES EFFECT SHALL BE PLACED IN THE RETIRED RESERVE OF THE APPROPRIATE ARMED FORCE OF THE UNITED STATES.'

THESE LATTER SECTIONS EFFECTED ONLY A CHANGE IN NOMENCLATURE AS TO COLONEL KELLY'S STATUS IN THE RESERVES. THE ACTION TAKEN UNDER SUCH PROVISIONS OF LAW DID NOT EFFECT A RETIREMENT OR A TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST AND HE WAS NOT TRANSFERRED TO THAT LIST UNDER THE 1948 ACT.

ACCORDINGLY, SINCE IT DOES NOT APPEAR THAT COLONEL KELLY IS ENTITLED TO THE RETIRED PAY CLAIMED THERE IS NO BASIS FOR ALLOWING HIS CLAIM. UPON REVIEW THE DENIAL OF HIS CLAIM IS SUSTAINED.

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