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B-106245, MAR 4, 1953

B-106245 Mar 04, 1953
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USMC MARINE CORPS ALLOTMENT OFFICER: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. IT WAS HELD THAT THE PLANTIFF. WAS ENTITLED TO RETIRED PAY AS A COLONEL. THE COURT'S HOLDING WAS ON THE PREMISE THAT SUCH RECALL BY THE SECRETARY. WAS TANTAMOUNT TO AN APPOINTMENT AS COLONEL UNDER THE ACT OF JULY 24. IT IS UNDERSTOOD THAT ON OCTOBER 7. IT IS UNDERSTOOD THAT THE DEPARTMENT OF JUSTICE CONTEMPLATES NO FURTHER LITIGATION IN THE MILLER CASE. YOU ARE AUTHORIZED TO ADJUST COLONEL MILLER'S RETIRED PAY. YOU ALSO REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY ACCOUNTS IN THE SIMILAR CASES OF BRIGADIER GENERAL ROBERT L. THAT DECISION IS CONSIDERED TO BE PERTINENT ONLY IN THOSE CASES INVOLVING OFFICERS BELOW THE GRADE AND RANK OF REAR ADMIRAL OR GENERAL OFFICER.

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B-106245, MAR 4, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL C. A. PHILLIPS, USMC MARINE CORPS ALLOTMENT OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1952, REQUESTING DECISION AS TO WHETHER YOU MAY ADJUST THE RETIRED PAY OF COLONEL ADOLPH B. MILLER IN CONSONANCE WITH THE OPINION OF THE COURT OF CLAIMS IN HIS CASE AND, IF SO, THE DATE ON WHICH SUCH ADJUSTMENT SHOULD BE EFFECTED.

METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, PROVIDES, INTER ALIA, FOR THE COMPUTATION OF RETIRED PAY OF INDIVIDUALS RETIRED PRIOR TO OCTOBER 1, 1949, ON THE "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 ***."

IN THE ABOVE CASE, MILLER V. UNITED STATES, C. CLS. NO. 50318, DECIDED JUNE 3, 1952, IT WAS HELD THAT THE PLANTIFF, UNDER THE SAID METHOD (B), WAS ENTITLED TO RETIRED PAY AS A COLONEL, UNITED STATES MARINE CORPS, BY VIRTUE OF HIS ADVANCEMENT, AT THE TIME OF HIS RETIREMENT, TO THAT RANK ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF SECTION 12 (1) OF THE ACT OF JUNE 23, 1938, 52 STAT. 951, AND HIS SUBSEQUENT RECALL BY THE SECRETARY OF THE NAVY TO ACTIVE DUTY AS A COLONEL. APPARENTLY, THE COURT'S HOLDING WAS ON THE PREMISE THAT SUCH RECALL BY THE SECRETARY, IN THE RANK OF COLONEL, WAS TANTAMOUNT TO AN APPOINTMENT AS COLONEL UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AUTHORIZING TEMPORARY APPOINTMENTS BY THE PRESIDENT, WITHOUT CONFIRMATION BY THE SENATE, TO GRADES AND RANKS BELOW THOSE OF REAR ADMIRAL IN THE NAVY OR COAST GUARD AND GENERAL OFFICER IN THE MARINE CORPS.

IT IS UNDERSTOOD THAT ON OCTOBER 7, 1952, THE COURT ENTERED FINAL JUDGMENT IN COLONEL MILLER'S FAVOR IN THE AMOUNT OF $2,434.81, FOR THE PERIOD BEGINNING OCTOBER 1, 1949, AND ENDING JUNE 3, 1952. ALSO, IT IS UNDERSTOOD THAT THE DEPARTMENT OF JUSTICE CONTEMPLATES NO FURTHER LITIGATION IN THE MILLER CASE. ACCORDINGLY, YOU ARE AUTHORIZED TO ADJUST COLONEL MILLER'S RETIRED PAY, BEGINNING JUNE 4, 1952, ON THE BASIS OF THE OPINION OF THE COURT OF CLAIMS IN HIS CASE.

YOU ALSO REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO ADJUST THE RETIRED PAY ACCOUNTS IN THE SIMILAR CASES OF BRIGADIER GENERAL ROBERT L. DENIG, BRIGADIER GENERAL ELMER E. HALL, BRIGADIER GENERAL WALTER N. HILL, AND MAJOR EDWIN U. HAKALA, ON THE BASIS OF THE SAID OPINION.

AS INDICATED IN THE DISCUSSION OF THE MILLER CASE, THAT DECISION IS CONSIDERED TO BE PERTINENT ONLY IN THOSE CASES INVOLVING OFFICERS BELOW THE GRADE AND RANK OF REAR ADMIRAL OR GENERAL OFFICER, AND HENCE WOULD HAVE NO APPLICATION TO THE CASE OF ANY OF THE NAMED OFFICERS EXCEPT MAJOR HAKALA. AND, IN THIS CONNECTION, THERE ALSO IS FOR CONSIDERATION THE CASE OF SHANLEY V. UNITED STATES, 122 C. CLS. 692, IN WHICH AN OFFICER OF THE COAST GUARD, UPON RETIREMENT, APPARENTLY HAD BEEN ADVANCED ON THE RETIRED LIST FROM REAR ADMIRAL (LOWER HALF) TO VICE ADMIRAL, UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JANUARY 12, 1923, 42 STAT. 1131. HE SUED FOR RETIRED PAY AS A VICE ADMIRAL FROM SEPTEMBER 1, 1947, THE DATE OF HIS RETIREMENT. THE COURT FOUND IN HIS FAVOR BUT ENTERED FINAL JUDGMENT - AFTER ARGUMENT BY COUNSEL SPECIFICALLY ON THE QUESTION OF THE MEANING OF "APPOINTMENT" UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA - ON THE BASIS OF RETIRED PAY AS REAR ADMIRAL (LOWER HALF) FOR THE PERIOD BEGINNING OCTOBER 1, 1949, THUS, IN EFFECT, HOLDING THAT THE PLAINTIFF NEVER HELD, WITHIN THE CONTEMPLATION OF THE SAID METHOD (B), AN "APPOINTMENT" TO A GRADE WHICH CARRIED WITH IT THE RIGHT TO PAY ABOVE THAT OF A REAR ADMIRAL (LOWER HALF).

IF MAJOR HAKALA'S CASE FALLS SQUARELY WITHIN THE PRINCIPLE LAID DOWN IN THE MILLER CASE, NO OBJECTION IS SEEN TO ADJUSTING HIS RETIRED PAY ACCORDINGLY. HOWEVER, AS TO THE OTHER THREE OFFICERS, IN VIEW OF WHAT IS STATED ABOVE REGARDING THE MILLER AND SHANLEY CASES, THIS OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING ANY SUCH ADJUSTMENT.

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