B-106308, APR. 22, 1958

B-106308, APR. 22, 1958

TO MR. ROBERT F. KLEPINGER:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1958, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF LIEUTENANT COLONEL MORRIS J. HERBERT, U.S. ARMY, RETIRED, FOR INCREASED RETIRED PAY ON AND AFTER OCTOBER 1, 1949, BASED ON TIME SERVED IN AN INACTIVE STATUS ON THE RETIRED LIST. YOU APPEAR TO REGARD THE DECISION IN THE CASE OF SHERFEY V. UNITED STATES, C.CLS. NO. 324-56, DECIDED JANUARY 15, 1958, AS FURNISHING SUFFICIENT AUTHORITY FOR THE ALLOWANCE OF SUCH CLAIM.

YOU STATE THAT UNDER THE SHERFEY DECISION, COLONEL HERBERT IS ENTITLED TO CREDIT FOR ALL HIS SERVICE BECAUSE THE ACTIVE-DUTY PAY HE WAS RECEIVING AT THE TIME OF HIS RETIREMENT ON MARCH 26 (27), 1944, WAS BASED ON ALL SUCH SERVICE INCLUDING THE TIME SERVED IN AN INACTIVE STATUS ON THE RETIRED LIST. WE DO NOT QUESTION HIS RIGHT TO COUNT ALL SERVICE FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY AT THE RATES FIXED UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SINCE WAS HAVE DECIDED TO FOLLOW THE CASE OF DANIELSON V. UNITED STATES, 121 C.CLS. 533. THE SETTLEMENT OF OCTOBER 2, 1952, ALLOWED THE ADDITIONAL RETIRED PAY FOUND DUE COLONEL HERBERT ON THAT BASIS. APPARENTLY, COLONEL HERBERT WISHED TO HAVE THE ADDITIONAL RETIRED PAY WHICH WOULD BE PAYABLE BY HAVING HIS PAY COMPUTED BY THE METHOD PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, AND AT THE APPLICABLE RATE PRESCRIBED IN SECTION 201/A) OF THAT ACT AND HE ELECTED UNDER SECTION 411 OF THAT ACT TO HAVE HIS RETIRED PAY SO COMPUTED. HOWEVER, SUCH COMPUTATION WAS SUBJECT TO THE EXPRESS RESTRICTION CONTAINED IN SECTION 202/B) OF THAT ACT THAT EXCEPT FOR ACTIVE SERVICE, SERVICE CREDIT AS PROVIDED IN SECTION 202 (A) (1) OF THAT ACT "SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY * * * WHILE ON A RETIRED LIST * * * EXCEPT AS PROVIDED IN TITLE IV OF THIS ACT.' COLONEL HERBERT WAS ON A RETIRED LIST WHEN HE MADE HIS ELECTION UNDER SECTION 411.

AS WAS POINTED OUT IN OUR DECISION TO YOU DATED JUNE 7, 1957, B 106308, THE LAST PROVISO OF SECTION 402/D) OF THE CAREER COMPENSATION ACT CONTAINS THE ONLY LANGUAGE FOUND IN TITLE IV WHICH RELATES EXPRESSLY TO THE RECOMPUTATION OF RETIRED PAY FOLLOWING A TOUR OF ACTIVE DUTY BY A RETIRED MEMBER AND WHICH PERMITS THE COUNTING OF TIME ON THE RETIRED LIST TO INCREASE RETIRED PAY. THE CREDITING OF SUCH TIME IS AUTHORIZED UNDER THE CONDITIONS THERE PROVIDED. IN SUCH CIRCUMSTANCES, THE CONCLUSION APPEARS INESCAPABLE THAT SUCH PROVISO CONTAINS THE EXCEPTION TO WHICH SECTION 202 (B) REFERS. THAT PROVISO HAS BEEN HELD TO BE PROSPECTIVE IN SCOPE, THAT IS, TO BE APPLICABLE ONLY TO CASES INVOLVING SERVICE ON ACTIVE DUTY AFTER OCTOBER 1, 1949. 31 COMP. GEN. 39; 37 ID. 31.

IN PROVIDING CERTAIN ADDITIONAL RETIRED PAY BENEFITS IN THE LAST PROVISO OF SECTION 402/D) OF THE CAREER COMPENSATION ACT FOR RETIRED MEMBERS WHO INCUR AN ADDITIONAL 30 PERCENT PHYSICAL DISABILITY DURING A TOUR OF ACTIVE DUTY, THE CONGRESS MUST HAVE INTENDED THAT SUCH BENEFITS SHOULD NOT ACCRUE TO RETIRED MEMBERS WHO DID NOT INCUR SUCH ADDITIONAL DISABILITY AFTER RECALL TO ACTIVE DUTY. THE EFFECT OF THE COURT'S DECISION IN THE CASE OF BAILEY V. UNITED STATES, 134 C.CLS. 471, IS TO NULLIFY THIS STATUTORY DISTINCTION AS FAR AS THE LONGEVITY ELEMENT IN COMPUTING RETIRED PAY IN SUCH CASES IS CONCERNED. WE FEEL THAT CLAIMS SHOULD NOT BE ALLOWED ON AUTHORITY OF THE BAILEY CASE, AT LEAST NOT UNTIL THERE HAS BEEN FURTHER JUDICIAL CONSIDERATION OF THE PRINCIPLES INVOLVED. FURTHERMORE, THE COURT'S DECISION REQUIRES A CONCLUSION THAT THE CONGRESS INTENDED THAT THE PHRASE "AT THE TIME OF HIS RETIREMENT" APPEARING IN SECTION 402 (D) SHOULD HAVE TWO DIFFERENT MEANINGS AS USED IN THE LAST PROVISO OF SECTION 402/D) IN CONNECTION WITH THE RIGHTS OF A RETIRED MEMBER ON HIS RETURN TO A RETIRED STATUS, AFTER A TOUR OF ACTIVE DUTY, ALTERNATE RIGHT (2) AUTHORIZES PAYMENT OF RETIRED PAY AS PROVIDED BY ANY LAW IN EFFECT "AT THE TIME OF HIS RETIREMENT.' THIS OBVIOUSLY REFERS TO THE TIME THE MEMBER FIRST WAS PLACED IN A RETIRED STATUS. THE COURT HELD THAT SUCH PHRASE AS USED IN THE PRINCIPAL PROVISIONS OF SECTION 402/D) IN CONNECTION WITH LANGUAGE WHICH WAS NOT ADDRESSED TO THE SITUATION OF A RETIRED MEMBER UPON HIS RETURN TO A RETIRED STATUS AFTER A TOUR OF ACTIVE DUTY INCLUDED THE TIME OF HIS "SECOND RETIREMENT.' NO REASON HAS BEEN FURNISHED AS TO WHY THE PHRASE WAS NOT USED TO DESCRIBE A "SECOND RETIREMENT.' CONGRESS USED THE SAME WORDS TO REFER TO DIFFERENT PERIODS OF TIME. IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED THAT THE QUOTED PHRASE WAS NOT SUED TO DESCRIBE A ,SECOND RETIREMENT.'

THE SHERFEY DECISION DID NOT DEAL WITH THE MATTER OF AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT AND HENCE DID NOT CLARIFY THE COURT'S VIEW WITH RESPECT TO THAT PHASE OF THE "RE RETIREMENT" PROBLEM. SUCH DECISION FURNISHES NO BASIS FOR THE ALLOWANCE OF COLONEL HERBERT'S CLAIM.