B-148056, FEB. 21, 1962
Highlights
RETIRED: REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 18 AND DECEMBER 19. SUCH CLAIM WAS DISALLOWED BY SETTLEMENT OF JUNE 2. THE RECORD SHOWS THAT YOU WERE GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. INCLUDES THE ORGANIZED RESERVE CORPS AS A PART OF THE ARMY AND YOU WERE A MEMBER OF THAT ORGANIZATION AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY. YOU ARE ENTITLED TO THE INCREASED RETIRED PAY BENEFITS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. - YOU WERE ONE OF THE ORIGINAL PLAINTIFFS IN THAT CASE. THAT RESERVE OFFICERS QUALIFYING UNDER THE PROVISIONS OF TITLE III OF THE 1948 ACT AND RECEIVING RETIRED PAY AS PROVIDED IN THAT ACT ARE ENTITLED TO ADDITIONAL RETIRED PAY UNDER THE 1942 ACT.
B-148056, FEB. 21, 1962
TO CAPTAIN JOSEPH S. FLYNN, AUS, RETIRED:
REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 18 AND DECEMBER 19, 1961, RELATIVE TO YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368. SUCH CLAIM WAS DISALLOWED BY SETTLEMENT OF JUNE 2, 1959.
THE RECORD SHOWS THAT YOU WERE GRANTED RETIRED PAY PURSUANT TO THE PROVISIONS OF 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) HAVING ATTAINED THE AGE OF 60 YEARS AND COMPLETED 20 OR MORE YEARS OF SATISFACTORY FEDERAL SERVICE.
YOU CONTEND THAT SINCE SECTION 301 OF THE ARMY ORGANIZATION ACT OF 1950, 64 STAT. 268, INCLUDES THE ORGANIZED RESERVE CORPS AS A PART OF THE ARMY AND YOU WERE A MEMBER OF THAT ORGANIZATION AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY, YOU ARE ENTITLED TO THE INCREASED RETIRED PAY BENEFITS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT.
AS YOU MUST BE AWARE, THE COURT IN THE CASE OF JOHN C. ABBOTT, ET AL. V. UNITED STATES, CT.CL. 235-59, MARCH 1, 1961--- YOU WERE ONE OF THE ORIGINAL PLAINTIFFS IN THAT CASE--- FOLLOWED THE VIEWS EXPRESSED IN THE CASES OF BERRY V. UNITED STATES, 123 CT.CL. 530, AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108, AND DECIDED THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT RELATES ONLY TO RETIRED RETIRED OFFICERS OF THE REGULAR COMPONENTS OF THE SERVICES THERE MENTIONED, AND THAT RESERVE OFFICERS QUALIFYING UNDER THE PROVISIONS OF TITLE III OF THE 1948 ACT AND RECEIVING RETIRED PAY AS PROVIDED IN THAT ACT ARE ENTITLED TO ADDITIONAL RETIRED PAY UNDER THE 1942 ACT. THE SUPREME COURT OF THE UNITED STATES DENIED THE PLAINTIFF'S PETITION FOR A WRIT OF CERTIORARI IN THAT CASE ON NOVEMBER 13, 1961. YOUR RIGHTS ARE GOVERNED BY THE DECISION OF THE ABBOTT CASE. ACCORDINGLY, THE SETTLEMENT OF JUNE 2, 1959, IS SUSTAINED.
THE MATTER OF AN ADJUSTMENT OF YOUR RETIRED PAY DUE TO AN AMENDED STATEMENT OF SERVICE ALLOWING CREDIT FOR 13 DAYS' ADDITIONAL SERVICE IN 1907 IS RECEIVING CONSIDERATION AND YOU WILL BE NOTIFIED IN THE NEAR FUTURE OF THE ACTION TAKEN WITH RESPECT TO THIS MATTER.