B-126312, MAR. 27, 1956

B-126312, MAR. 27, 1956

TO MR. HARRY K. CLARK:

YOUR LETTER DATED NOVEMBER 7, 1955, WITH ENCLOSURE, REQUESTS FURTHER EXAMINATION OF YOUR CLAIM FOR ADDITIONAL LONGEVITY PAY FOR VARIOUS PERIODS OF ACTIVE DUTY IN THE ARMY OF THE UNITED STATES BETWEEN JULY 4, 1926, AND OCTOBER 14, 1944, PREDICATED UPON SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY PRIOR TO AUGUST 24, 1912. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED JUNE 24, 1952, FOR THE REASON THAT ONLY REGULAR ARMY OFFICERS WHO WERE IN ACTIVE SERVICE ON JUNE 30, 1922, MAY RECEIVE CREDIT FOR LONGEVITY PAY PURPOSES FOR CADET SERVICE PRIOR TO AUGUST 12, 1912.

YOU NOW CALL ATTENTION TO THE ENCLOSURE WITH YOUR LETTER WHICH IS A PHOTOSTATIC COPY OF A NEWSPAPER ITEM, REPORTING THAT THE UNITED STATES COURT OF CLAIMS HAS RULED THAT SERVICE ACADEMY TIME FOR CADETS APPOINTED PRIOR TO 1912 MAY BE COUNTED FOR COMPUTING RESERVE RETIREMENT TIME UNDER PUBLIC LAW 810 (ARMY AND AIR FORCE VITALIZATION AND RETIRMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087-1091). YOUR CLAIM, SPECIFICALLY, IS FOR ADDITIONAL LONGEVITY CREDIT FOR PAY PURPOSES FOR PERIODS OF ACTIVE DUTY AS FOLLOWS:

CHART

JULY 4, 1926 TO JULY 18, 1926

JULY 16, 1929 TO JULY 29, 1929

JULY 28, 1935 TO OCTOBER 14, 1935

JULY 31, 1938 TO AUGUST 13, 1938

MARCH 14, 1941 TO OCTOBER 14, 1941 (AS MAJOR)

MARCH 14, 1944 TO OCTOBER 14, 1944 (AS

LIEUTENANT COLONEL)

YOUR OFFICIAL STATEMENT OF SERVICE STATES THAT YOU SERVED AS A CADET IN THE UNITED STATES MILITARY ACADEMY FROM JUNE 14, 1911, TO JANUARY 8, 1912; THAT YOU ACCEPTED APPOINTMENT AS FIRST LIEUTENANT UNITED STATES NATIONAL GUARD ON AUGUST 15, 1917, AND SERVED ON ACTIVE DUTY FROM THAT DATE TO JUNE 6, 1919, WHEN YOU WERE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT; THAT YOU ACCEPTED AN APPOINTMENT AS FIRST LIEUTENANT UNITED STATES ARMY RESERVE ON AUGUST 4, 1912, AND THAT YOU MAINTAINED A COMMISSIONED OFFICER STATUS CONTINUOUSLY THEREAFTER, EITHER ON ACTIVE OR INACTIVE DUTY. YOU ACCEPTED APPOINTMENT AS COLONEL, INFANTRY, ON AUGUST 1, 1947. THE STATEMENT OF SERVICE ALSO STATES THAT YOU HAD THE FOLLOWING PERIODS OF ACTIVE DUTY AS A COMMISSIONED FFICER:

"* * * FROM 15 AUGUST 1917 TO 6 JUNE 1919; FROM 12 JULY 1924 TO 26 JULY 1924; FROM 4 JULY 1926 TO 18 JULY 1926; FROM 4 AUGUST 1928 TO 17 AUGUST 1928; FROM 16 JULY 1929 TO 29 JULY 1929; FROM 6 JULY 1930 TO 19 JULY 1930; FROM 5 JULY 1931 TO 18 JULY 1931; FROM 3 SEPTEMBER 1933 TO 16 SEPTEMBER 1933; FROM 8 JULY 1934 TO 21 JULY 1934; FROM 28 JULY 1935 TO 27 SEPTEMBER 1936; FROM 19 SEPTEMBER 1937 TO 2 OCTOBER 1937; FROM 31 JULY 1938 TO 13 AUGUST 1938; FROM 8 FEBRUARY 1941 TO 19 MAY 1945; FROM 22 AUGUST 1948 TO 9 NOVEMBER 1948; FROM 24 MARCH 1949 TO 24 MAY 1949, FROM 1 APRIL 1950 TO 10 MAY 1951; FROM 20 JANUARY 1951 TO 4 FEBRUARY 1951; HE WAS HONORABLY RELIEVED FROM EACH TOUR OF ACTIVE DUTY.'

YOUR CLAIM WAS ORIGINALLY RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 18, 1951, AND, THEREFORE, YOUR ATTENTION IS INVITED TO THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES IN PERTINENT PART---

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

HENCE, CONSIDERATION MAY BE GIVEN ONLY TO THAT PART OF YOUR CLAIM FOR PERIODS AFTER SEPTEMBER 18, 1941.

THE UNIDENTIFIED COURT OF CLAIMS DECISION MENTIONED IN THE NEWSPAPER CLIPPING SUBMITTED APPEARS TO BE THE DECISION IN THE CASE OF BRAND V. UNITED STATES, C.CLS. 47452, DECIDED OCTOBER 4, 1955. THE COURT HELD IN THAT CASE THAT OFFICER PERSONNEL WHOSE STATUS PLACED THEM WITHIN THE PURVIEW OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087-1091, AS AMENDED, MAY INCLUDE WITHIN THE MEANING OF THE TERM "ACTIVE FEDERAL SERVICE" AS USED IN SECTION 303 (1) OF THE ACT, SERVICE PERFORMED AS A CADET AT THE UNITED STATES MILITARY ACADEMY UNDER APPOINTMENTS THERETO MADE PRIOR TO AUGUST 24, 1912. THE COURT OF CLAIMS DID NOT HAVE BEFORE IT IN THAT CASE THE QUESTION OF WHETHER ACADEMY SERVICE OF CADETS APPOINTED PRIOR TO AUGUST 24, 1912, WAS CREDITABLE FOR LONGEVITY PAY PURPOSES OF RESERVE OFFICERS ON ACTIVE DUTY UNDER THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 627, EFFECTIVE JULY 1, 1922, TO MAY 31, 1942, OR THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, WHICH BECAME EFFECTIVE JUNE 1, 1942.

PARAGRAPH 11 OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1922, AND PARAGRAPH 11 OF SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, MENTIONED ABOVE, IN EFFECT PROHIBITED THE COUNTING OF CADET AND MIDSHIPMAN SERVICE FOR PAY PURPOSES BY OFFICERS APPOINTED ON OR AFTER JULY 1, 1922, BUT SAVED TO THOSE "OFFICERS IN SERVICE ON JUNE 30, 1922," THE RIGHT TO CONTINUE TO COUNT ALL SERVICE WHICH WAS THEN COUNTED IN COMPUTING LONGEVITY PAY, WHICH INCLUDED CADET SERVICE FOR THOSE OFFICERS WHO ENTERED THE MILITARY ACADEMY PRIOR TO THE ENACTMENT OF THE 1912 ACT. THE CONCLUSIONS THAT AN OFFICER WHO WAS A MEMBER OF THE OFFICERS' RESERVE CORPS IN AN INACTIVE STATUS ON JUNE 30, 1922, WAS NOT CONSIDERED TO HAVE BEEN "IN SERVICE" ON THAT DATE INSOFAR AS THE STATUTORY PROVISIONS HERE INVOLVED ARE CONCERNED, AND THAT THERE IS NO AUTHORITY OF LAW FOR COUNTING SERVICE AS A CADET AT THE MILITARY ACADEMY IN COMPUTING THE ACTIVE DUTY PAY OF SUCH OFFICER, HAVE THE SUPPORT OF THE COURT OF CLAIMS. SEE HILTON V. UNITED STATES, 99 C.CLS. 386.

IT THUS APPEARS THAT WHILE CADET SERVICE OF OFFICERS APPOINTED TO THE MILITARY ACADEMY PRIOR TO AUGUST 24, 1912, MAY BE COUNTED FOR PURPOSES ENCOMPASSED IN TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, SUCH SERVICE MAY NOT BE COUNTED FOR ACTIVE DUTY LONGEVITY PAY PURPOSES UNDER EITHER OF THE PAY READJUSTMENT PAY ACTS, MENTIONED ABOVE, WHERE THE OFFICER WAS NOT "IN SERVICE" ON JUNE 30, 1922.

ACCORDINGLY, THE SETTLEMENT OF JUNE 24, 1952, IS CORRECT AND UPON REVIEW IS SUSTAINED.