B-144622, MAR. 17, 1965

B-144622, MAR. 17, 1965

TO CHIEF WARRANT OFFICER CHARLES CLAUDE LIGHT:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 15 AND 20, 1965,REQUESTING RECONSIDERATION OF OUR DECISION TO YOU OF JANUARY 8, 1965, B-144622, WHEREIN WE REFERRED TO PREVIOUS CORRESPONDENCE IN YOUR CASE AND AGAIN DENIED YOUR CLAIM FOR ADJUSTMENT IN RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368. YOU NOW CLAIM ENTITLEMENT TO THE 75 PERCENT FORMULA BASED ON PHYSICAL DISABILITY RATHER THAN ON SERVICE BEFORE NOVEMBER 12, 1918.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON JANUARY 20, 1936, AS AN ENLISTED MAN OF THE REGULAR NAVY, THAT YOU WERE SUBSEQUENTLY RECALLED TO ACTIVE DUTY AND ON JULY 1, 1943, YOU WERE TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY PURSUANT TO THE PROVISIONS OF SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1179, AND RETAINED ON ACTIVE DUTY. FROM AUGUST 15, 1942, TO JANUARY 24, 1943, YOU SERVED UNDER A TEMPORARY APPOINTMENT AS A CHIEF WARRANT OFFICER. YOU AGAIN SERVED UNDER A TEMPORARY APPOINTMENT AS A CHIEF WARRANT OFFICER FROM OCTOBER 1, 1943, TO OCTOBER 15, 1945, WHEN YOU WERE RELEASED FROM ACTIVE DUTY AND REVERTED TO YOUR RETIRED ENLISTED STATUS. YOU WERE SUBSEQUENTLY ADVANCED ON THE RETIRED LIST TO THE GRADE OF CHIEF WARRANT OFFICER, EFFECTIVE OCTOBER 15, 1945, PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, AND YOUR RETIRED PAY HAS BEEN COMPUTED ON THE PAY OF THAT GRADE UNDER THE FORMULA PRESCRIBED IN THE NAVAL RESERVE ACT AS AMENDED.

THE REASON FOR YOUR REVERSION TO YOUR PERMANENT ENLISTED STATUS ON JANUARY 25, 1943, WHILE SERVING ON ACTIVE DUTY WAS THAT YOU WERE FOUND NOT PHYSICALLY QUALIFIED FOR TEMPORARY APPOINTMENT TO THE GRADE OF CHIEF WARRANT OFFICER. YOU NOW CONTEND THAT INSTEAD OF REVERSION TO YOUR PERMANENT STATUS AS AN ENLISTED MAN OF THE FLEET RESERVE YOU SHOULD HAVE BEEN RETIRED AS A CHIEF WARRANT OFFICER, EFFECTIVE JANUARY 25, 1943, BY ACTION OF A BOARD OF MEDICAL SURVEY OR MEDICAL RETIREMENT BOARD ON ACCOUNT OF PHYSICAL DISABILITY ALLEGED TO HAVE BEEN INCURRED BETWEEN AUGUST 24, 1942, AND JANUARY 25, 1943, WHILE SERVING UNDER YOUR TEMPORARY APPOINTMENT.

SECTION 8 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 604 (UNDER WHICH ACT YOU WERE GIVEN THE TEMPORARY APPOINTMENT) PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) * * * AN ENLISTED MAN OF THE FLEET RESERVE * * * WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

"/E) THE BENEFITS OF THIS SECTION SHALL APPLY ONLY TO AN INDIVIDUAL WHO INCURS PHYSICAL DISABILITY IN LINE OF DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. * * *

"/F) THE JURISDICTION OF NAVAL RETIRING BOARDS IS HEREBY EXTENDED AS MAY BE NECESSARY IN THE ADMINISTRATION OF THIS SECTION, AND THEIR PROCEEDINGS SHALL BE CONDUCTED IN ALL RESPECTS AS PROVIDED BY EXISTING LAW AND REGULATIONS EXCEPT AS MAY BE NECESSARY TO ADAPT THE SAME TO CASES PROVIDED FOR IN THIS SECTION.

"/G) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN ANY CASE UNLESS THE PROCEEDINGS OF THE NAVAL RETIRING BOARD SHALL BE COMMENCED WITHIN SIX MONTHS FROM THE TERMINATION OF THE TEMPORARY APPOINTMENT OR RELEASE FROM ACTIVE DUTY OF THE INDIVIDUAL CONCERNED WHICHEVER MAY OCCUR EARLIER.'

THE ABOVE-QUOTED PROVISIONS OF LAW WERE IN EFFECT AT THE TIME OF YOUR REVERSION TO YOUR PERMANENT ENLISTED STATUS ON JANUARY 25, 1943, AND AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY OCTOBER 15, 1945. IT APPEARS THEREFORE THAT YOUR RIGHT, IF ANY, TO HAVE YOUR RETIRED PAY COMPUTED ON THE 75 PERCENT FORMULA BASED ON PHYSICAL DISABILITY WOULD BE FOR DETERMINATION UNDER THE ABOVE-QUOTED PROVISIONS OF THE 1941 ACT RATHER THAN THE PAY READJUSTMENT ACT OF 1942. HOWEVER, THE INFORMATION FURNISHED THIS OFFICE CONTAINS NO INDICATION THAT RETIREMENT PROCEEDINGS UNDER THE 1941 ACT WERE EVER INSTITUTED OR REQUESTED. YOU WERE TRANSFERRED TO THE RETIRED LIST FOR DISABILITY UNDER THE 1938 NAVAL RESERVE ACT IN JULY 1943 WHILE YOU WERE SERVING AS AN ENLISTED MAN. THE COPIES OF DOCUMENTS FORWARDED WITH YOUR LETTER, WHICH STATE THAT THE REPORT OF THE MEDICAL OFFICERS MAKING THE PHYSICAL EXAMINATION SHOWED YOU WERE PHYSICALLY QUALIFIED FOR THE TEMPORARY APPOINTMENT OF AUGUST 15, 1942, AND THAT ON JANUARY 18, 1943,"HAVING BEEN FOUND NOT PHYSICALLY QUALIFIED" YOUR TEMPORARY APPOINTMENT WAS TERMINATED, DO NOT EVIDENCE A RETIREMENT UNDER THE 1941 ACT OR A DETERMINATION THAT YOU WERE QUALIFIED THEREFOR.

RETIRED PAY ENTITLEMENT MUST BE DETERMINED ON THE BASIS OF THE STATUTORY AUTHORITY UNDER WHICH THE MEMBER WAS RETIRED. SINCE YOU WERE RETIRED UNDER THE PROVISIONS OF THE 1938 NAVAL RESERVE ACT RATHER THAN THE 1941 ACT AND YOUR RETIRED PAY APPARENTLY HAS BEEN COMPUTED ON THE PAY OF THE CHIEF WARRANT OFFICER GRADE TEMPORARILY HELD BY YOU IN ACCORDANCE WITH THE ACT UNDER WHICH YOU WERE RETIRED, THERE IS NO BASIS FOR RECOMPUTATION OF YOUR RETIRED PAY UNDER THE PROVISIONS OF THE 1941 ACT.