B-146052, NOV. 1, 1962

B-146052, NOV. 1, 1962

TO MR. THOMAS J. ALDUK, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR COMMUNICATION OF AUGUST 20, 1962, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF COLONEL JAMES H. KELLY FOR RETIRED PAY BELIEVED TO BE DUE UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087. IN OUR DECISION DATED NOVEMBER 9, 1961, B-146052, WE SUSTAINED THE DISALLOWANCE OF THE CLAIM, STATING THAT COLONEL KELLY HAD NOT BEEN RETIRED, SINCE HE HAD INSUFFICIENT QUALIFYING (SATISFACTORY) FEDERAL SERVICE CREDITABLE FOR RETIREMENT PURPOSES UNDER SECTION 302 OF THE ACT OF JUNE 29, 1948, SUPRA.

ENCLOSED WITH YOUR PRESENT LETTER IS A COPY OF LETTER DATED SEPTEMBER 25, 1952, HEADQUARTERS NEW YORK MILITARY DISTRICT, ADDRESSED TO COLONEL KELLY, ADVISING HIM OF HIS TRANSFER TO THE HONORARY RESERVE. THE FOLLOWING SENTENCE IN PERTINENT PART, APPEARS IN THIS LETTER, WITH UNDERSCORING SUPPLIED:

"AFTER REVIEWING YOUR RESERVE FIELD MILITARY 201 FILE IT WAS REVEALED THAT YOU HAVE MORE THAN TWENTY YEARS OF HONORABLE SERVICE BOTH IN FEDERAL AND RESERVE CAPACITY, THEREBY QUALIFYING YOU FOR TRANSFER TO THE HONORARY RESERVE * * *.'

THE OTHER ENCLOSURE WITH YOUR LETTER IS AN EXTRACT COPY OF PARAGRAPH 63, SPECIAL ORDERS NO. 233, DATED NOVEMBER 21, 1952, HEADQUARTERS, NEW YORK MILITARY DISTRICT, TRANSFERRING COLONEL KELLY TO THE HONORARY RESERVE UNDER AUTHORITY CONTAINED IN PARAGRAPH 4A (3) (A), SPECIAL REGULATIONS 140 -160-1, MARCH 7, 1950. UNDERSCORED ALSO ON THIS COPY IS THE REFERENCE TO COLONEL KELLY'S ,HAVING 20 YEARS HONORABLE SERVICE.'

YOU STATE THAT COLONEL KELLY IS OF THE BELIEF THAT THE TWO ABOVE MENTIONED DOCUMENTS ARE SUFFICIENT EVIDENCE TO SUBSTANTIATE AND JUSTIFY HIS RIGHT TO THE RETIRED PAY CLAIMED. THE BELIEF ALSO IS EXPRESSED THAT THE WORDS "HONORABLE SERVICE" AS USED IN THE DOCUMENTS SUBMITTED HAVE THE SAME MEANING AS "SATISFACTORY SERVICE" FOR PURPOSES OF RETIRED PAY.

THE PERTINENT LAWS AND REGULATIONS, HOWEVER, DO NOT SUPPORT OR JUSTIFY THE VIEW THAT "HONORABLE SERVICE" IS SYNONYMOUS WITH "SATISFACTORY SERVICE" FOR RETIRED PAY PURPOSES. IN OUR DECISION OF NOVEMBER 9, 1961, WE QUOTED, IN PERTINENT PART, FROM SECTION 302 OF THE 1948 ACT AS AMENDED, 10 U.S.C. 1036A, 1952 EDITION. "SATISFACTORY FEDERAL SERVICE" IS THERE DEFINED, AS FOLLOWS:

"/B) SUBSEQUENT TO JULY 1, 1949, A YEAR OF SATISFACTORY FEDERAL SERVICE, FOR THE PURPOSE OF THIS SECTION ONLY, SHALL CONSIST OF ANY YEAR IN WHICH A PERSON IS CREDITED WITH A MINIMUM OF FIFTY POINTS * * *.'

WE THEN STATED:

"IT IS REPORTED BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, THAT AS OF JUNE 30, 1950, COLONEL KELLY HAD ACQUIRED 19 YEARS, 8 MONTHS AND 12 DAYS QUALIFYING (SATISFACTORY) FEDERAL SERVICE CREDITABLE FOR RETIREMENT PURPOSES UNDER THE STATUTE QUOTED ABOVE. IT IS FURTHER REPORTED THAT FOR THE PERIOD JULY 1, 1950, TO JUNE 30, 1951, COLONEL KELLY EARNED BUT 15 RETIREMENT POINTS, AND FOR THE PERIOD JULY 1, 1951, THROUGH MAY 2, 1952, THE DATE OF HIS SIXTIETH BIRTHDAY HE EARNED BUT 13 RETIREMENT POINTS. HENCE, THE PERIOD JULY 1, 1950, THROUGH MAY 2, 1952, WAS NOT SATISFACTORY FEDERAL SERVICE CREDITABLE FOR RETIREMENT, AND UPON COLONEL KELLY'S SIXTIETH BIRTHDAY HE HAD NOT ACQUIRED THE NECESSARY 20 QUALIFYING YEARS OF SERVICE FOR TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST. HIS TRANSFER TO THE HONORARY RESERVE ON DECEMBER 1, 1952, WAS NOT A TRANSFER TO THE RETIRED LIST AUTHORIZED TO BE ESTABLISHED BY THE 1948 ACT AND IT IS CLEAR THAT THE DEPARTMENT OF THE ARMY DID NOT CONSIDER SUCH TRANSFER AS A TRANSFER TO THAT LIST SINCE NO RETIRED PAY HAS BEEN PAID TO HIM. HIS SERVICE DOES NOT ENTITLE HIM TO SUCH PAY.'

WE DO NOT QUESTION THAT COLONEL KELLY HAD 20 YEARS' HONORABLE SERVICE, BUT ACCORDING TO THE OFFICIAL DEPARTMENT OF THE ARMY REPORT HE DID NOT ACQUIRE 20 YEARS'"SATISFACTORY FEDERAL RVICE," AS DEFINED IN THE CITED STATUTE, WHICH HE IS REQUIRED TO HAVE IN ORDER TO QUALIFY FOR RETIREMENT AND RETIRED PAY UNDER THE PROVISIONS OF THE 1948 ACT. APPARENTLY, MERE MEMBERSHIP IN ANY RESERVE COMPONENT OF THE ARMED SERVICES WAS REGARDED AS "HONORABLE SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN THE REGULATIONS CITED IN THE ORDERS OF NOVEMBER 21, 1952, WITHOUT THE NECESSITY OF EARNING POINTS FOR RETIRED PAY PURPOSES UNDER THE 1948 ACT. HOWEVER, 50 POINTS PER YEAR WERE REQUIRED TO BE EARNED IN ORDER FOR SUCH SERVICE (PERFORMED AFTER JULY 1, 1949), TO BE REGARDED AS "SATISFACTORY FEDERAL SERVICE" FOR RETIRED PAY PURPOSES. SINCE COLONEL KELLY EARNED A TOTAL OF BUT 28 POINTS FROM JULY 1, 1950, TO HIS SIXTIETH BIRTHDAY ON MAY 2, 1952, SUCH SERVICE WAS NOT CREDITABLE UNDER THAT ACT.

ACCORDINGLY, UPON FURTHER REVIEW, WE MUST ADHERE TO OUR PRIOR DECISION AND SUSTAIN THE DENIAL OF HIS CLAIM.