B-144224, NOV. 29, 1960

B-144224, NOV. 29, 1960

TO CAPTAIN HENRY U. LINKINS, USNR:

REFERENCE IS MADE TO YOUR RECENT LETTERS REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY AS A COMMANDER FROM OCTOBER 1, 1949, TO DATE OF SETTLEMENT.

IT APPEARS THAT EFFECTIVE JUNE 29, 1948, YOU WERE TRANSFERRED TO THE RETIRED LIST ESTABLISHED BY SECTION 301 (B) OF THE ACT OF THAT DATE, 62 STAT. 1087, WITH TOTAL SERVICE OF 23 YEARS, 4 MONTHS, 15 DAYS, AND WITH A TOTAL OF 4088 POINTS FOR COMPUTATION OF YOUR RETIRED PAY UNDER THAT ACT. IT FURTHER APPEARS THAT BY REASON OF YOUR RECEIPT OF COMBAT COMMENDATIONS YOU WERE PLACED ON THE RETIRED LIST IN ACCORDANCE WITH SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, WITH THE RANK OF CAPTAIN AND WITH ENTITLEMENT TO RETIRED PAY AT THE RATE OF THREE-FOURTHS OF THE ACTIVE DUTY PAY OF A COMMANDER. ALSO, IT APPEARS THAT SINCE JUNE 29, 1948, YOU HAVE BEEN PAID RETIRED PAY COMPUTED AT THE RATE OF THREE-FOURTHS OF THE ACTIVE DUTY PAY RECEIVED BY A COMMANDER WITH YOUR LENGTH OF SERVICE ON JUNE 29, 1948, PLUS PERCENTAGE INCREASES ON SUCH RETIRED PAY ON MAY 1, 1952, APRIL 1, 1955, AND JUNE 1, 1958. YOU CONTEND THAT YOUR RETIRED PAY FROM OCTOBER 1, 1949, SHOULD HAVE BEEN COMPUTED AT THE SAME RATE BUT ON THE BASIS OF THE PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, FOR A COMMANDER WITH YOUR LENGTH OF SERVICE.

SECTION 511 OF THE CAREER COMPENSATION ACT, 63 STAT. 829, PROVIDES, IN PERTINENT PART, THAT:

"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION * * * MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * * IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM. * * *"

SECTION 512 OF THAT ACT PROVIDED, IN PERTINENT PART, THAT:

"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION, ANY PERSON WHO HERETOFORE HAS BEEN GRANTED RETIRED PAY OR WHO HEREAFTER IS GRANTED RETIRED PAY PURSUANT TO TITLE III OF THE ACT OF JUNE 29, 1948 (CH. 708, 62 STAT. 1087), SHALL HAVE HIS RETIRED PAY COMPUTED AS AUTHORIZED BY THE AFORESAID TITLE III ON THE BASIS OF THE PAY PROVIDED FOR IN THIS ACT. * *

SECTION 522 (A) OF THE ABOVE ACT PROVIDED THAT:

"SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947 IS HEREBY AMENDED BY DELETING THE WORDS ,AND WITH THREE-FOURTHS OF THE ACTIVE DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT" AS THEY APPEAR IN LINES 8 AND 9 OF THE SAID SECTION ON PAGE 874, VOLUME 61, STATUTES AT LARGE.'

IN YARNALL V. UNITED STATES, 131 CT.CL. 111, THE PLAINTIFF, AN OFFICER OF THE NAVAL RESERVE, WHO HAD RECEIVED A COMBAT COMMENDATION, WAS TRANSFERRED, EFFECTIVE JUNE 29, 1948, TO THE RETIRED LIST ESTABLISHED BY SECTION 301 (B) OF THE ACT OF THAT DATE, SUPRA, WITH THE RANK OF CAPTAIN AND WITH ENTITLEMENT TO THE RETIRED PAY OF A COMMANDER. HE WAS PAID, HOWEVER, NOT AT THE RATE OF THREE-FOURTHS OF HIS ACTIVE DUTY PAY, BUT AT A LESSER RATE COMPUTED UNDER THE ACT OF JUNE 29, 1948, ON YEARS OF SATISFACTORY FEDERAL SERVICE. HE SUED FOR RETIRED PAY AT THE RATE OF THREE- FOURTHS OF HIS ACTIVE DUTY PAY AT THE TIME OF TRANSFER TO THE RETIRED LIST. THE COURT HELD THAT HE WAS ENTITLED TO RETIRED PAY COMPUTED IN ACCORDANCE WITH THE THREE-FOURTHS PAY PROVISIONS OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, AND THE PAY SCHEDULES IN EFFECT ON SEPTEMBER 30, 1949, NOT ONLY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT (OCTOBER 1, 1949) BUT ALSO AFTER THAT DATE, UNDER THE SAVED PAY PROVISIONS OF THAT ACT, THE THREE-FOURTHS PAY PROVISION HAVING BEEN DELETED FROM THE 1947 ACT BY SECTION 522 (A) OF THE 1949 ACT.

WE CANNOT DISTINGUISH YOUR CASE FROM THE YARNALL CASE. YOU HAVE BEEN PAID ON THE SAME BASIS AS WAS DECREED TO BE PROPER IN HIS CASE BY THE COURT, THAT IS, THREE-FOURTHS OF THE THEN CURRENTLY PRESCRIBED ACTIVE DUTY PAY TO SEPTEMBER 30, 1949, AND "SAVED PAY" THEREAFTER. THE THEORY UPON WHICH YOUR CLAIM IS PREDICATED, THE COMBINATION OF THE PROVISIONS OF THE 1949 ACT REGARDING ACTIVE DUTY PAY WITH THE PROVISIONS OF ANOTHER ACT--- THREE-FOURTHS OF ACTIVE DUTY PAY IN COMBAT COMMENDATION CASES--- WHICH SPECIFICALLY WERE REPEALED BY THE 1949 ACT, IS NOT TENABLE. IF RETIRED PAY IS TO BE ESTABLISHED UNDER LAWS IN EFFECT ON SEPTEMBER 30, 1949, THE CAREER COMPENSATION ACT MAY NOT BE CONSIDERED, SINCE IT WAS NOT THEN IN EFFECT. IF RETIRED PAY IS TO BE ESTABLISHED UNDER LAWS IN EFFECT ON OCTOBER 1, 1949, A LAW OR PROVISION OF LAW REPEALED AS OF THAT DATE MAY NOT BE CONSIDERED, SINCE IT WAS NOT THEN IN EFFECT. THUS, THE ONLY WAY BY WHICH YOU COULD BECOME ENTITLED TO THE THREE-FOURTHS PROVISION ON OCTOBER 1, 1949, WAS BY THE METHOD UNDER WHICH YOU WERE PAID, THAT IS, THE SAVING TO YOU OF THE BENEFITS OF THE APPLICABLE STATUTES IN EFFECT ON SEPTEMBER 30, 1949. THE COURT IN THE YARNALL CASE RECOGNIZED THAT, EXCEPT FOR SUCH SAVINGS PROVISIONS, THERE WAS NO BASIS TO ALLOW JUDGMENT IN PLAINTIFF'S FAVOR FOR THE PERIOD ON AND AFTER OCTOBER 1, 1949, AND ITS DECISION RELATING TO THAT PART OF HIS CLAIM IS BASED ENTIRELY ON SUCH SAVINGS PROVISIONS.

YOU SEEM TO BE OF THE OPINION THAT ALL MEMBERS RETIRED PRIOR TO OCTOBER 1, 1949, NOT BY REASON OF DISABILITY, WERE INTENDED TO RECEIVE INCREASES IN RETIRED PAY UNDER THE CAREER COMPENSATION ACT. SUCH AN INTERPRETATION WOULD MAKE METHOD (A) OF SECTION 511 OF THAT ACT ENTIRELY MEANINGLESS. WHILE NO INTENT WAS EXPRESSED IN THAT ACT TO FREEZE THE RETIRED PAY OF ANY RETIRED MEMBERS, THEY CONTINUED TO RECEIVE THE SAME RETIRED PAY THEN BEING PAID TO THEM UNLESS THEY QUALIFIED FOR AN INCREASE UNDER ONE OF THE PAY INCREASE METHODS PRESCRIBED THEREIN.

UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OR UNDER SECTION 512 OF THAT ACT, YOU WOULD HAVE RECEIVED LESSER AMOUNTS OF RETIRED PAY THAN YOU HAVE RECEIVED UNDER METHOD (A) OF SECTION 511. WE DO NOT KNOW OF ANY OTHER PROVISION OF THAT ACT WHICH WOULD HAVE ANY BEARING ON THE RATE OF YOUR RETIRED PAY.

ACCORDINGLY, IT IS CONCLUDED THAT YOU HAVE BEEN PAID ON THE PROPER BASIS AND THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.