B-78247, NOVEMBER 5, 1958, 38 COMP. GEN. 348

B-78247, NOVEMBER 5, 1958, 38 COMP. GEN. 348

MILITARY PERSONNEL - RETIRED PAY - RE-RETIREMENT CONCEPT - GORDON, FIELD, AND SHERFEY APPLICATION THE RE-RETIREMENT CONCEPT WHICH HAS BEEN APPLIED BY THE COURT OF CLAIMS IN THE GORDON, FIELD AND SHERFEY CASES (134 C.1CLS. 840, C.1CLS. NOS. 525 -53 AND 324-56) TO BRING MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED FOLLOWING MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO AGAIN SERVED ON ACTIVE DUTY AFTER RETIREMENT WITHIN THE RETIRED PAY PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WHICH PROVIDES RETIRED PAY BENEFITS FOR OFFICERS ,HEREAFTER ( JUNE 1, 1942) RETIRED," WILL BE FOLLOWED IN SIMILAR CASES INVOLVING THE APPLICATION OF SECTION 15 OF THE ACT. MEMBERS OF THE UNIFORMED SERVICES WHO HAD RETIRED PAY COMPUTED ON A BASIS OTHER THAN YEARS OF SERVICE AT THE TIME OF RETIREMENT AND WHO FOLLOWING A PERIOD OF ACTIVE DUTY ARE RELEASED FROM THE SERVICE AFTER OCTOBER 1, 1949- -- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- ARE NOT PRECLUDED FROM HAVING THEIR RETIRED PAY COMPUTED ON THE BASIS OF SECTION 516 OF THE ACT APPLICABLE TO MEMBERS WHOSE RETIRED PAY WAS COMPUTED ON THE BASIS OF YEARS OF SERVICE, AND IN THE DETERMINATION OF YEARS OF SERVICE CREDITABLE TO SUCH MEMBERS ONLY THE SERVICE WHICH WAS CREDITABLE UNDER THE LAWS IN EFFECT AT THE TIME OF THE MEMBER'S RETIREMENT MAY BE COUNTED FOR PERCENTAGE MULTIPLE PURPOSES FOR INCREASES IN RETIRED PAY. IN THE ABSENCE OF A COURT DECISION ON THE APPLICATION OF THE RETIRED PAY COMPUTATION PROVISIONS IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 TO WORLD WAR I OFFICERS WHO SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE ACT--- OR ON THE APPLICATION OF THE RE- RETIREMENT CONCEPT TO AN OFFICER WHO WAS RE RETIRED BEFORE THAT DATE AND THEN AFTER A SECOND PERIOD OF ACTIVE DUTY AFTER THAT DATE WAS AGAIN RELEASED FROM THE SERVICE, THE MEMBER WOULD NOT BE ENTITLED TO INCREASED RETIRED PAY ON ACCOUNT OF ACTIVE DUTY PERFORMED AFTER THE FIRST RE- RETIREMENT.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, NOVEMBER 5, 1958:

REFERENCE IS MADE TO YOUR REQUEST FORWARDED HERE BY THE OFFICE OF CHIEF OF FINANCE UNDER D.O. NUMBER 361, ALLOCATED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF MAJOR VAN RENSSELAER VESTAL, UNITED STATES ARMY, RETIRED, O-14224, REPRESENTING ADDITIONAL RETIRED PAY CLAIMED BY HIM IN THE CIRCUMSTANCES HEREUNDER SET FORTH.

THE PERTINENT FACTS RELATIVE TO MAJOR VESTAL'S MILITARY RETIRED PAY STATUS ARE AS FOLLOWS: HE SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918; HE WAS RETIRED ON JUNE 1, 1920, IN THE RANK OF CAPTAIN FOR DISABILITY UNDER AUTHORITY OF SECTION 3, ACT OF OCTOBER 1, 1890, 26 STAT. 562, 10 U.S.C. 556; AND HE SERVED ON ACTIVE DUTY FROM SEPTEMBER 13, 1921, TO JULY 1, 1923, FROM AUGUST 5, 1942, TO JULY 31, 1948, AND AGAIN FROM AUGUST 14, 1948, TO DECEMBER 21, 1949, INCLUSIVE. APPEARS THAT ON JULY 31, 1948, AND ALSO ON DECEMBER 21, 1949, HE WAS ENTITLED TO RECEIVE ACTIVE DUTY PAY AS A MAJOR WITH OVER THIRTY YEARS' SERVICE (INCLUDING CREDIT FOR ALL HIS PRIOR INACTIVE TIME ON THE RETIRED LIST).

MAJOR VESTAL CLAIMS ADDITIONAL RETIRED PAY FOR THE PERIOD AUGUST 1 TO 14, 1948, AND FROM DECEMBER 22, 1949, TO JANUARY 31, 1958, INCLUSIVE, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNTS PAID HIM AND RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS RECEIVING WHEN RELEASED TO INACTIVE DUTY ON JULY 31, 1948, AND ON DECEMBER 21, 1949, RESPECTIVELY, TOGETHER WITH APPROPRIATE INCREASES AUTHORIZED BY LAW SINCE THAT TIME. THE CLAIM IS ADVANCED ON THE ASSUMPTION THAT THE FACTS IN THIS CASE ARE SUCH AS TO BRING HIS RETIRED PAY STATUS WITHIN THE RULE OF THE FIELD AND SHERFEY CASES, C.1CLS. NOS. 525-53 AND 324-56, RESPECTIVELY, BOTH DECIDED ON JANUARY 15, 1958. IN THOSE TWO DECISIONS, THE COURT OF CLAIMS REAFFIRMED THE "RE RETIREMENT" CONCEPT OF THE GORDON DECISION OF APRIL 3, 1956, 134 C.1CLS. 840. THE HOLDING IN THE GORDON DECISION ITSELF WAS AN EXTENSION OF THE "RE-RETIREMENT" THEORY WHICH WAS FIRST ADOPTED BY THE COURT OF CLAIMS IN CONSTRUING THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, IN THE CARROLL CASE DECIDED ON DECEMBER 6, 1948, 117 C.1CLS. 53, AND IN THE DANIELSON DECISION OF FEBRUARY 5, 1952, 121 C.1CLS. 533.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES THAT THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THAT 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 IREMENT.' UNDER THE "RE- RETIREMENT" THEORY WHICH THE COURT OF CLAIMS APPLIED TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15, RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHO AGAIN SERVED ON ACTIVE DUTY AFTER THEIR INITIAL RETIREMENT, ARE "RE RETIRED" ON THE DATE OF THEIR RELEASE FROM SUCH SUBSEQUENT ACTIVE DUTY. THIS OFFICE HAS DECIDED TO FOLLOW THE RULE ESTABLISHED BY THE DECISIONS OF THE COURT OF CLAIMS IN THE GORDON, FIELD AND SHERFEY CASES IN TAKING ACTION ON OTHER SIMILAR CASES INVOLVING THE APPLICATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. APPLYING THAT RULE, IT WILL BE SEEN THAT MAJOR VESTAL'S RELEASE FROM ACTIVE DUTY ON JULY 31, 1948, MUST BE VIEWED AS A "RE-RETIREMENT" FOR PURPOSES OF THE FOURTH PARAGRAPH OF SECTION 15 OF THAT ACT. HENCE, HIS RETIRED PAY FOR THE PERIOD AUGUST 1 TO 14, 1948, PROPERLY IS TO BE COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A MAJOR WITH OVER 30 YEARS' CREDITABLE SERVICE.

AS ABOVE STATED, MAJOR VESTAL AGAIN SERVED ON ACTIVE DUTY FROM AUGUST 15, 1948, TO DECEMBER 21, 1949, INCLUSIVE. SINCE HE WAS RELEASED FROM SUCH ACTIVE DUTY AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, A QUESTION ARISES AS TO THE EXTENT, IF ANY, HIS RETIRED PAY STATUS WAS AFFECTED BY THE PROVISIONS OF SECTION 516 OF THAT ACT, 37 U.S.C. 316. UNDER THOSE PROVISIONS (AND A RESTATEMENT THEREOF IN 10 U.S.C. 1402), A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO IS RECALLED TO ACTIVE DUTY BECOMES ENTITLED TO RECEIVE AN INCREASE IN HIS RETIRED PAY UPON RELEASE FROM ACTIVE DUTY, FOR ALL ACTIVE DUTY PERFORMED BY HIM AFTER RETIREMENT, SUCH PAY TO BE COMPUTED BY MULTIPLYING THE "YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY" AT THE TIME OF HIS RETIREMENT PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM AND BY MULTIPLYING THAT PRODUCT BY THE AMOUNT OF BASIC PAY OF THE RANK OR GRADE IN WHICH HE WOULD HAVE BEEN ELIGIBLE AT THE TIME OF SUCH RELEASE FROM ACTIVE DUTY TO BE RETIRED EXCEPT FOR THE FACT THAT HE IS ALREADY RETIRED. SOME DIFFICULTY IS ENCOUNTERED IN APPLYING THAT FORMULA IN THIS CASE SINCE MAJOR VESTAL'S RETIRED PAY WAS NOT COMPUTED ON THE BASIS OF YEARS OF SERVICE CREDITABLE TO HIM EITHER AT THE TIME OF HIS ORIGINAL RETIREMENT ON JUNE 1, 1920, OR IN CONNECTION WITH HIS "RE-RETIREMENT" UPON HIS RELEASE FROM ACTIVE DUTY ON JULY 31, 1948, THE PERCENTAGE MULTIPLE IN EACH SITUATION HAVING BEEN 75 PERCENT AND HAVING BEEN 75 PERCENT AND HAVING NO RELATIONSHIP TO HIS YEARS OF SERVICE.

THERE APPEARS TO BE NO BASIS FOR A CONCLUSION THAT SECTION 516 OF THE CAREER COMPENSATION ACT WAS INTENDED TO BE APPLICABLE ONLY TO MEMBERS WHOSE RETIRED PAY WAS COMPUTED ON THE BASIS OF YEARS OF SERVICE, SINCE ITS BROAD PROVISIONS COVER " MEMBERS AND FORMER MEMBERS * * * WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED * * * AND ENTITLED TO RECEIVE RETIRED PAY * * * UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT.' IT APPEARING THAT MEMBERS, SUCH AS MAJOR VESTAL, ARE ENTITLED TO THE BENEFITS, IF ANY, WHICH MAY ACCRUE UNDER SECTION 516, THE CONCLUSION APPEARS WARRANTED THAT THE ,YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY," WHICH WERE INTENDED IN CASES SUCH AS THE PRESENT ONE WHERE THE RETIRED PAY OF THE MEMBER CONCERNED WAS NOT COMPUTED ON THE BASIS OF YEARS OF SERVICE AT THE TIME OF HIS RETIREMENT, WERE THOSE WHICH WERE SO CREDITABLE IN OTHER APPROPRIATE CASES WHERE RETIRED PAY COULD BE COMPUTED ON THAT BASIS UNDER PROVISIONS OF LAW IN EFFECT AT THE TIME OF THE MEMBER'S RETIREMENT. HENCE, IT IS OUR VIEW THAT ONLY YEARS OF ACTIVE SERVICE MAY BE COUNTED FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING INCREASES IN RETIRED PAY UNDER SECTION 516 IN CASES INVOLVING CIRCUMSTANCES SUCH AS ARE HERE INVOLVED.

AS FAR AS IS KNOWN, THE COURT OF CLAIMS HAS NOT YET PASSED UPON THE QUESTION OF THE APPLICABILITY OF SECTION 516 TO WORLD WAR I OFFICERS WHO SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949, OR WHETHER AN OFFICER WHO WAS RE-RETIRED BEFORE THAT DATE MAY BE RE-RETIRED A SECOND TIME UPON HIS RELEASE FROM A SECOND PERIOD OF ACTIVE DUTY AFTER THAT DATE. IN THE ABSENCE OF A COURT DECISION REQUIRING A DIFFERENT HOLDING, THE CONCLUSION APPEARS TO BE REQUIRED THAT MAJOR VESTAL'S RIGHTS TO INCREASED RETIRED PAY, ON AND AFTER DECEMBER 22, 1949, ARE FOR DETERMINATION UNDER THAT SECTION. SINCE IT IS SHOWN THAT HE HAD ONLY 12 YEARS, 4 MONTHS, AND 4 DAYS OF ACTIVE SERVICE AT THAT TIME, THE PERCENTAGE MULTIPLE INVOLVED IS ONLY 30 PERCENT, AND THE USE OF THAT MULTIPLE WOULD RESULT IN LESS RETIRED PAY THAN HE THEN WAS ENTITLED TO RECEIVE UNDER SECTION 15 OF THE 1942 ACT AT THE RATE OF $360.94 PER MONTH. HENCE, NO RIGHT TO INCREASED RETIRED PAY ACCRUED TO HIM BY VIRTUE OF ACTIVE DUTY PERFORMED BY HIM AFTER HIS RE- RETIREMENT IN 1948.

ACCORDINGLY, MAJOR VESTAL IS ENTITLED TO AN ADJUSTMENT IN HIS RETIRED PAY REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT OF RETIRED PAY RECEIVED BY HIM, AND RETIRED PAY AT THE MONTHLY RATE OF $360.94 FOR THE PERIOD AUGUST 1 TO 14, 1948, INCLUSIVE. BASED ON THE REPORTED PAYMENT OF $92.58 FOR THAT PERIOD, ADJUSTMENT AT THE MONTHLY RATE YOU SUGGEST OF $144.36, DOES NOT APPEAR TO BE CORRECT. HE IS ENTITLED TO A FURTHER ADJUSTMENT OF HIS RETIRED PAY AT THE MONTHLY RATE OF $113.44 (DIFFERENCE BETWEEN $360.94 AND $247.50) FOR THE PERIOD DECEMBER 22, 1949, TO APRIL 30, 1952, INCLUSIVE, AT THE MONTHLY RATE OF $117.98 (DIFFERENCE BETWEEN $375.38 AND $257.40) FOR THE PERIOD MAY 1, 1952, TO MARCH 31, 1955 INCLUSIVE, AND AT THE MONTHLY RATE OF $125.06 (DIFFERENCE BETWEEN $397.90 AND $272.84) FOR THE PERIOD FROM APRIL 1, 1955, TO JANUARY 31, 1958, INCLUSIVE, LESS SUCH DEDUCTIONS AS ARE REQUIRED UNDER THE DUAL COMPENSATION LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. THE VOUCHER, WHICH IS RETURNED HEREWITH, SHOULD BE REVISED AS INDICATED ABOVE. UPON SUCH REVISION, PAYMENT ON THE VOUCHER IS AUTHORIZED.