B-90724, JAN. 11, 1961

B-90724, JAN. 11, 1961

TO MR. WATSON BENGE, FINANCE OFFICER, VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 7, 1960, WITH ENCLOSURES, FILE C-210 143, MAGUIRE, EDWARD B., CODE 3472, 3072/242A, REQUESTING AN OPINION AS TO THE ENTITLEMENT OF MR. EDWARD B. MAGUIRE TO AN INCREASE IN HIS EMERGENCY OFFICERS' RETIREMENT PAY. IN A LETTER DATED MARCH 21, 1958, MR. MAGUIRE REQUESTED THAT CONSIDERATION BE GIVEN TO ADVANCING HIS RETIRED PAY FROM THAT OF CAPTAIN TO THE RETIRED PAY OF MAJOR UNDER THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 AS INTERPRETED BY THE UNITED STATES COURT OF CLAIMS IN THE CASES: TRACY V. UNITED STATES, 136 CT.CL. 211; LOWELL V. UNITED STATES, 158 F.SUPP. 704; FIELD V. UNITED STATES, 141 CT.CL. 312; AND SHERFEY V. UNITED STATES, 141 CT.CL. 307.

IT APPEARS THAT MR. MAGUIRE IS A FORMER EMERGENCY OFFICER OF WORLD WAR I WHOSE RIGHT TO RETIREMENT PAY WAS PROVIDED BY THE ACT OF MAY 24, 1928, 45 STAT. 735. AT THE TIME OF HIS PLACEMENT ON THE EMERGENCY OFFICERS' RETIRED LIST ON JULY 5, 1928, HE DID NOT HOLD A COMMISSION IN THE OFFICERS' RESERVE CORPS, SINCE HIS COMMISSION AS CAPTAIN IN THE OFFICERS' RESERVE CORPS HAD BEEN TERMINATED ON MAY 6, 1925, AT HIS REQUEST. FURTHER APPEARS THAT MR. MAGUIRE AGAIN SERVED ON ACTIVE DUTY WITH THE ARMY DURING WORLD WAR II; WAS PROMOTED FROM CAPTAIN TO MAJOR ON MARCH 28, 1947; AND WAS RELEASED FROM ACTIVE DUTY ON MAY 27, 1947.

PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

MR. MAGUIRE APPARENTLY URGES THAT UNDER THE RETIREMENT PRINCIPLES ENUNCIATED IN THE FOUR CASES CITED IN HIS LETTER, HE WAS "RETIRED" UPON HIS RELEASE FROM ACTIVE DUTY IN 1947, AND THAT SINCE HE WAS RELEASED FROM ACTIVE DUTY IN THE GRADE OF MAJOR, AND IN VIEW OF HIS SERVICE PRIOR TO NOVEMBER 12, 1918, HIS RETIREMENT PAY SHOULD BE "75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS (RE) RETIREMENT.'

IN OUR OPINION, MR. MAGUIRE'S CLAIM IS WITHOUT MERIT. HE WAS NOT RETIRED UNDER A GENERAL LAW RELATING TO THE RETIREMENT OF MEMBERS OF THE REGULAR OR RESERVE COMPONENTS OF THE ARMED FORCES, BUT WAS GRANTED RETIREMENT PAY PURSUANT TO THE EMERGENCY OFFICERS' RETIREMENT ACT OF 1928. PERSONS WHO WERE GRANTED RETIREMENT PAY UNDER THE 1928 ACT WERE NOT REQUIRED TO HAVE ANY MILITARY STATUS AT THAT TIME FROM WHICH THEY COULD BE RETIRED. THEY WERE NOT ACTUALLY RETIRED AND HENCE COULD NOT HAVE A TIME OF RETIREMENT AS THAT TERM IS ORDINARILY UNDERSTOOD. THEY HAD PREVIOUSLY BEEN DISCHARGED FROM A MILITARY STATUS RATHER THAN RETIRED (PERKINS V. UNITED STATES, 116 CT.CL. 778), AND THE RETIREMENT PAY LATER GRANTED TO THEM WAS IN THE NATURE OF A PENSION. 19 COMP. GEN. 676. THE SERVICE CONTEMPLATED BY THE 1928 ACT AS ENTITLING THEM TO RETIREMENT PAY WAS ACTIVE SERVICE DURING WORLD WAR I AND THE PAY USED AS THE BASIS FOR COMPUTING SUCH RETIREMENT PAY WAS THE ACTIVE DUTY PAY BEING RECEIVED AT THE TIME OF THEIR DISCHARGE. TALL V. UNITED STATES, 79 CT.CL. 251. NO SERVICE OR STATUS OF ANY KIND AFTER THAT TIME WAS REQUIRED IN ORDER TO QUALIFY FOR RETIRED PAY UNDER THAT ACT, NOR DID ANY RESERVE SERVICE SUBSEQUENT TO WORLD WAR I AFFECT EITHER THE RANK OR RETIREMENT PAY AUTHORIZED BY THAT ACT. IN THE PERKINS CASE THE COURT OF CLAIMS SAID THAT IT DOES NOT APPEAR THAT THE PAY READJUSTMENT ACT OF 1942 PERTAINS TO OFFICERS ON THE EMERGENCY OFFICERS' RETIRED LIST.

SINCE MR. MAGUIRE WAS NOT "RETIRED," HIS RELEASE FROM ACTIVE DUTY IN WORLD WAR II CANNOT BE CONSIDERED A RETIREMENT. NOR DOES IT APPEAR THAT MR. MAGUIRE WAS RETIRED BY REASON OF HIS WORLD WAR II SERVICE, BUT ON THE CONTRARY, REVERTED TO HIS STATUS ON THE EMERGENCY OFFICERS' RETIRED LIST. HE WAS, HOWEVER, CREDITED WITH HIS WORLD WAR II SERVICE AND AWARDED INCREASED RETIREMENT PAY, PURSUANT TO SECTION 203 (A) OF PUBLIC LAW 810- 80TH CONGRESS, ACT OF JUNE 29, 1948, WHICH PROVIDED FOR THE ADVANCEMENT OF A MEMBER ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR A PERIOD OF SIX MONTHS. WHILE IT APPEARS THAT MR. MAGUIRE SERVED IN THE GRADE OF MAJOR, SUCH SERVICE WAS FOR A PERIOD OF ONLY TWO MONTHS. HENCE, PAYMENTS WERE MADE ON THE BASIS OF HIS GRADE AS CAPTAIN. 28 COMP. GEN. 620.

IN THE CASES BERRY V. UNITED STATES, 123 CT.CL. 530, AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108, THE COURT OF CLAIMS HELD THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF THE SERVICES NAMED IN THE TITLE OF THE ACT. IT DOES NOT APPEAR THAT MR. MAGUIRE WAS AT ANY TIME AN OFFICER OF THE REGULAR ARMY.

WHILE IT APPEARS UNDER THE COURT OF CLAIMS DECISIONS THAT ONLY OFFICERS OF REGULAR COMPONENTS RETIRED PRIOR TO OCTOBER 1, 1949, EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, ARE ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, THE COURT HAS DETERMINED THAT IN ADDITION TO REGULAR OFFICERS, RESERVE OFFICERS RETIRED FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 ARE ALSO ENTITLED TO THOSE BENEFITS. SEE TRACY V. UNITED STATES, 136 CT.CL. 211.

THUS THE FOUR CASES CITED BY MR. MAGUIRE DO NOT SUPPORT HIS CONTENTION. THE PLAINTIFFS IN THE SHERFEY AND FIELD CASES WERE RETIRED REGULAR ARMY OFFICERS, AND THE PLAINTIFFS IN THE TRACY AND LOWELL CASES WERE RESERVE OFFICERS RETIRED FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949.

WE HAVE BEEN INFORMALLY ADVISED THAT SINCE HIS RELEASE FROM ACTIVE DUTY ON MAY 27, 1947, MR. MAGUIRE HAS BEEN PAID RETIREMENT PAY AT THE FOLLOWING MONTHLY RATES:

TABLE

FROM MAY 28, 1947, TO JUNE 29, 1948 $165.00

JUNE 29, 1948, TO APRIL 30, 1952 215.63

(NO ELECTION UNDER THE CAREER COMPENSATION

ACT OF 1949) MAY 1, 1952, TO MARCH 31, 1955

224.26 APRIL 1, 1955, TO MAY 31, 1958 237.72

JUNE 1, 1958 251.98