B-148056, APR. 24, 1962

B-148056, APR. 24, 1962

TO CAPTAIN JOSEPH S. FLYNN, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1962, REGARDING YOUR CLAIM FOR ADJUSTMENT IN RETIRED PAY PAID YOU SINCE YOUR RETIREMENT ON MAY 31, 1954. IN ACCORDANCE WITH OUR DECISION OF APRIL 1, 1958, B-113387, 37 COMP. GEN. 653, YOUR DATE OF RETIREMENT WAS CHANGED TO JUNE 29, 1948. YOUR CLAIM WAS ORIGINALLY DENIED IN OUR SETTLEMENT OF JUNE 2, 1959, AND SUCH SETTLEMENT WAS SUSTAINED IN OUR DECISION OF FEBRUARY 21, 1962, TO YOU.

THE ADJUSTMENT OF YOUR RETIRED PAY IS CLAIMED UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AND WAS DENIED BECAUSE THOSE PROVISIONS APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES. YOU WERE RETIRED AS A RESERVE OFFICER UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087 (NOW 10 U.S.C. 1331 1337). HENCE, NO RIGHTS ACCRUED TO YOU UNDER THE 1942 ACT.

YOU STATE THAT YOU BASE YOUR AMENDED CLAIM ON THE FACT THAT YOU WERE RETIRED IN 1954, SUBSEQUENT TO THE ENACTMENT OF THE ARMY ORGANIZATION ACT OF 1950 (WHICH PROVIDES THAT THE TERMS ,ARMY" AND "ARMY OF THE UNITED STATES" ARE SYNONYMOUS AND MEAN THE ARMY OR ARMIES REFERRED TO IN THE CONSTITUTION OF THE UNITED STATES). THAT CONTENTION WAS MADE IN THE ABBOTT CASE, IN WHICH YOU WERE ONE OF THE PLAINTIFFS. WITH RESPECT TO THAT CONTENTION, THE COURT SAID---

"PLAINTIFF EARNESTLY INSISTS THAT THE TERM "ARMY" IS SYNONYMOUS WITH THE TERM "ARMY OF THE UNITED STATES" AND URGES UPON US THE DEFINITION ADOPTED IN SECTION 2 OF THE ARMY ORGANIZATION ACT OF 1950, 64 STAT. 263, AS DEFINITIVE OF THE MEANING OF THE TERM IN 1942. HOWEVER, PRIOR TO THE ADOPTION OF THIS NEW DEFINITION THE CODE WAS SILENT AS TO THE MEANING TO BE GIVEN THE TERM "ARMY.' SECTION 2 OF TITLE 10, BEFORE 1950, DEFINED THE COMPOSITION OF THE ARMY OF THE UNITED STATES, AND SECTION 3 OF THAT TITLE DEFINED THE REGULAR ARMY. ADMITTEDLY, THE ACT OF 1950 MADE THE TERMS SYNONYMOUS BY CONFORMING THE TECHNICAL MEANING OF THE TERM "ARMY" WITH THE MEANING IMPLIED BY COMMON USAGE, BUT TO OUR MINDS THIS WOULD STRENGTHEN THE PROPOSITION THAT A DISTINCTION WAS INTENDED PRIOR TO THE ADOPTION OF THE NEW DEFINITION. THEREFORE, A DETERMINATION WOULD HAVE TO BE MADE AS TO THE MEANING OF THE TERM "ARMY" IN ANY GIVEN INSTANCE. HENCE, WE MUST MAKE THAT DETERMINATION IN THE INSTANT CASE.'

THE COURT CONCLUDED---

"THEREFORE, IT IS OUR DETERMINATION THAT THE TERM "ARMY" AS USED IN PARAGRAPH 4, SECTION 15, OF THE PAY READJUSTMENT ACT OF 1942, PERTAINS ONLY TO REGULAR OFFICERS AND NOT TO RESERVE OFFICERS.'

WE ARE IN FULL AGREEMENT WITH THE COURT IN THIS MATTER.

SINCE YOUR LETTER OF FEBRUARY 27, 1962, FURNISHES NO ADDITIONAL FACTS NOT PREVIOUSLY CONSIDERED, WE MUST ADHERE TO OUR DECISION OF FEBRUARY 21, 1962, THAT YOU ARE NOT ENTITLED TO AN ADJUSTMENT IN RETIRED PAY ON THE BASIS OF THE 1942 ACT AND THAT THE ACT OF JUNE 28, 1950, HAS NO BEARING ON YOUR CLAIM.