B-144253, MAY 24, 1961, 40 COMP. GEN. 639

B-144253, MAY 24, 1961, 40 COMP. GEN. 639

MILITARY PERSONNEL - RETIRED PAY - DISABILITY - RE-RETIREMENT - HEINLEIN CASE THE HOLDING OF THE COURT OF CLAIMS IN HEINLEIN V. UNITED STATES, CT.1CL. NO. 459-59, DECEMBER 1, 1960, THAT A MEMBER OF THE UNIFORMED SERVICES WHO DID NOT HAVE SERVICE IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO, AFTER A RETIREMENT FOR DISABILITY, SERVES ON ACTIVE DUTY AND IS AGAIN RETIRED IS ENTITLED TO HAVE THE INACTIVE TIME ON THE RETIRED LIST PRIOR TO RECALL TO ACTIVE DUTY INCLUDED IN THE COMPUTATION OF DISABILITY RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS A RESULT OF THE MEMBER'S ELECTION UNDER 411 OF THE ACT, WILL BE FOLLOWED AS PRECEDENT IN THE SETTLEMENT OF CLAIMS BY INDIVIDUALS WHO, AS THE RESULT OF A "411" ELECTION QUALIFYING FOR INCREASED DISABILITY RETIRED PAY COMPUTED UNDER SECTION 402 (D), THE REQUIREMENT FOR SERVICE PRIOR TO NOVEMBER 12, 1918, NO LONGER BEING OF ANY CONSEQUENCE IN THE APPLICATION OF THE RE RETIREMENT CONCEPT UNDER SECTION 402 (D) OF THE 1949 ACT.

TO THE SECRETARY OF DEFENSE, MAY 24, 1961:

WE HAVE FOR CONSIDERATION IN CONNECTION WITH A CLAIM PRESENTED TO THIS OFFICE FOR INCREASED RETIRED PAY COMPUTED UNDER THE PROVISIONS OF FORMER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818 (NOW CODIFIED IN CHAPTER 61, TITLE 10, U.S. CODE), THE QUESTION WHETHER AND THE EXTENT TO WHICH THE DECISION RENDERED DECEMBER 1, 1960, IN THE CASE OF REX I. HEINLEIN, JR. V. UNITED STATES, CT.1CL. NO. 459 59, IS TO BE CONSIDERED AS A PRECEDENT AND THEREFORE FOLLOWED BY THIS OFFICE IN THE DISPOSITION OF OTHER SIMILAR CLAIMS.

HEINLEIN'S MILITARY SERVICE BEGAN AS AN ENLISTED MEMBER OF THE MISSOURI NATIONAL GUARD IN JANUARY 1923. HE BECAME AN OFFICER OF THE REGULAR ARMY IN OCTOBER 1927, AND ON OCTOBER 31, 1933, HE WAS RETIRED FOR A PHYSICAL DISABILITY. HE REMAINED IN AN INACTIVE DUTY STATUS ON THE RETIRED LIST UNTIL RECALLED TO ACTIVE DUTY AS A RETIRED OFFICER EFFECTIVE FEBRUARY 14, 1942. HE WAS RELEASED FROM ACTIVE DUTY ON SEPTEMBER 390. 1953, WHILE IN RECEIPT OF THE ACTIVE DUTY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR AN OFFICER WITH OVER 26 BUT NOT OVER 30 CUMULATIVE YEARS OF SERVICE (17 YEARS 8 MONTHS AND 12 DAYS OF ACTIVE SERVICE AND 9 YEARS AND 6 DAYS INACTIVE, OF WHICH 8 YEARS 3 MONTHS NAD 15 DAYS REPRESENT THE TIME OF HIS INACTIVE DUTY STATUS ON THE RETIRED LIST FROM NOVEMBER 1, 1933, TO FEBRUARY 15, 1942, INCLUSIVE).

UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281 (1952 USED.), HEINLEIN ELECTED, IN MARCH 1953, TO RECEIVE RETIRED PAY (EFFECTIVE UPON HIS RETURN TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST) COMPUTED ON THE BASIS OF THE PERCENTAGE OF HIS DISABILITY AS PRESCRIBED IN SECTION 402 (D) OF THE 1949 LAW. IN ACCORDANCE WITH SUCH ELECTION HE WAS PAID RETIRED PAY FROM OCTOBER 1, 1953, AT THE RATE OF 75 PERCENT (HIS 100 PERCENT DISABILITY RATING WAS SUBJECT TO THE 75 PERCENT RESTRICTION CONTAINED IN THE THIRD PROVISO OF SECTION 402 (D) ( OF THE BASIC PAY OF A LIEUTENANT COLONEL, AND EFFECTIVE FROM JUNE 1, 1956, AT 75 PERCENT OF THE BASIC PAY OF A COLONEL (SEE SECTION 203 (A), ACT OF JUNE 29, 1948, 62 STAT. 1085, 10 U.S.C. 1002 (1952 USED.), AS AMENDED BY THE ACT OF MAY 31, 1956, 70 STAT. 222, 34 U.S.C. 350I (E) (1952 USED.) WITH CREDIT FOR ALL ACTIVE AND INACTIVE SERVICE THROUGH OCTOBER 31, 1933, THE ACTUAL DATE OF HIS RETIREMENT, PLUS HIS ACTIVE SERVICE FROM FEBRUARY 16, 1942, TO SEPTEMBER 30, 1953, THE DATE OF HIS SO-CALLED "RE- RETIREMENT," BUT WITHOUT CREDIT FOR HIS INACTIVE DUTY PERIOD ON THE RETIRED LIST NOVEMBER 1, 1933, TO FEBRUARY 15, 1942, INCLUSIVE.

THE CLAIM PRESENTED BY HEILEIN IN COURT OF CLAIMS PETITION NO. 459 59 (UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW) WAS FOR RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF COLONEL (THE TEMPORARY GRADE IN WHICH HE WAS SERVING ON SEPTEMBER 30, 1953) WITH CREDIT FOR HIS INACTIVE TIME, 8 YEARS 3 MONTHS AND 15 DAYS, ON THE RETIRED LIST. THE COURT IN THE DECISION OF DECEMBER 1, 1960, STATED "* * * THE ISSUE IS WHETHER (1HEILEIN) CAN USE HIS INACTIVE DUTY ON THE RETIRED LIST PRIOR TO HIS RECALL TO ACTIVE DUTY IN THE COMPUTATION OF HIS RETIRED PAY.' ON THIS POINT THE COURT STATED:

THIS SAME ISSUE WAS RAISED IN THE CASE OF BAILEY V. UNITED STATES, 134 CT.1CL. 471. IN THAT CASE WE HELD THAT THE LANGUAGE OF SECTION 402 (D), WHICH ALLOWS A MEMBER OF THE UNIFORMED SERVICES RECALLED TO ACTIVE DUTY AND RETIRED A SECOND TIME FOR PHYSICAL DISABILITY TO USE A A FACTOR IN COMPUTING HIS DISABILITY RETIRED PAY "AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME" OF HIS SECOND RETIREMENT, HAS REFERENCE TO THE ACTUAL PAY SUCH MEMBER WAS RECEIVING AT THAT TIME, WHICH ACTUAL PAY INCLUDED A LONGEVITY ELEMENT BASED IN PART ON YEARS OF INACTIVE SERVICE.

THE COURT ADHERING TO ITS INTERPRETATION OF THE PERTINENT PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW AS REFLECTED IN ITS PRIOR HOLDINGS IN PHELAN V. UNITED STATES, CT.1CL. NO. 50-57, DECIDED JUNE 3, 1959, AND TRAVIS V. UNITED STATES DECISION OF DECEMBER 5, 1956, 137 CT.1CL. 148, THEN CONCLUDED THAT HEINLEIN---

* * * IS ENTITLED TO HAVE HIS DISABILITY RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF TITLE IV OF THE 1949 ACT, SUPRA, AND IS ENTITLED TO RECOVER THE DIFFERENCE BETWEEN THE RETIRED PAY ACTUALLY PAID HIM AND THE RETIRED PAY OF A COLONEL WITH 100 PERCENT DISABILITY AND OVER 26 AND NOT OVER 30 YEARS OF SERVICE FROM OCTOBER 1, 1953, THE DAY AFTER THE DATE OF HIS LAST RETIREMENT.

PRIOR TO THE DECISION OF DECEMBER 1, 1960, IN THE HEINLEIN CASE, THE ONLY INSTANCES IN WHICH THE COURT HAD RULED IN FAVOR OF CREDITING INACTIVE TIME ON A RETIRED LIST FOR THE PURPOSE OF COMPUTING DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, WERE THOSE CASES (SUCH AS THE BAILEY, TRAVIS AND PHELAN DECISIONS ABOVE REFERRED TO) INVOLVING THE "RE-RETIREMENT" CONCEPT WHICH THE COURT IN PREVIOUSLY CONSTRUING THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115, APPLIED TO OFFICERS WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND CONSEQUENTLY HIS SITUATION AND THAT OF OTHER OFFICERS WITHOUT SERVICE PRIOR TO NOVEMBER 12, 1918, WAS VIEWED BY THIS OFFICE AS NOT WITHIN THE SCOPE OF THE "RE-RETIREMENT" CONCEPT OF THE BAILEY, TRAVIS AND PHELAN DECISIONS FOR THE PURPOSES OF COMPUTING RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW.

THE DECISION OF DECEMBER 1, 1960, IN THE HEINLEIN CASE APPLIES THE "RE- RETIREMENT" CONCEPT DIRECTLY TO THE PROVISIONS OF SECTION 402 (D) AND THUS SERVICE IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. BECOMES OF NO CONSEQUENCE IN SUCH A CASE. WE HAVE CONSIDERABLE DOUBT THAT THE COURT INITIALLY FORESAW THE BROADER AND BROADER EXTENSIONS WHICH IT HAS SINCE MADE IN THE "RE-RETIREMENT" CONCEPT BEYOND THE AREAS FIRST COVERED IN THE CARROLL, 117 CT.1CL. 53, AND DANIELSON, 121 CT.1CL. 533, CASES. WE ALSO DOUBT THAT THE DECISION OF DECEMBER 1, 1960, IN THE HEINLEIN CASE TRULY REFLECTS THE INTENT OF THE CONGRESS, SINCE THE LAST PROVISO OF SECTION 402 (D) CLEARLY APPEARS TO HAVE BEEN EXPRESSLY ENACTED TO AFFORD AN INCREASE IN RETIRED PAY ON ACCOUNT OF INACTIVE SERVICE ON THE RETIRED LIST ONLY TO THOSE PERSONS WHO, AFTER RETIREMENT, AGAIN SERVED ON ACTIVE DUTY AND, WHILE SO SERVING, INCURRED A PHYSICAL DISABILITY OF 30 PERCENT OR MORE OR INCURRED A PHYSICAL DISABILITY FOR WHICH THEY WERE INITIALLY RETIRED. THE RECORD DOES NOT SHOW THAT HEINLEIN MEETS THIS STATUTORY REQUIREMENT.

HOWEVER, IT SEEMS MOST UNLIKELY THAT THE COURT WOULD NOT ADHERE TO THE POSITION IT HAS TAKEN CONCERNING THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW IN ANY OTHER SIMILAR CASE BROUGHT BEFORE IT AND THE DEPARTMENT OF JUSTICE HAS ADVISED US THAT THE JUDGMENT AGAINST THE GOVERNMENT IN THE HEINLEIN CASE "HAS NOW BECOME FINAL SINCE THIS DEPARTMENT WILL TAKE NO FURTHER ACTION WITH RESPECT THERETO.' IN SUCH CIRCUMSTANCES, IT IS ACCORDINGLY DECIDED THAT THIS OFFICE WILL FOLLOW THE COURT'S HOLDING IN THE HEINLEIN CASE AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF PAYMENTS IN THOSE CASES WHERE THE INDIVIDUAL CONCERNED AS THE RESULT OF A "411" ELECTION QUALIFIES UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 TO COMPUTE HIS DISABILITY RETIRED PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) OF THAT ACT.