B-138353, OCTOBER 9, 1959, 39 COMP. GEN. 276

B-138353, OCTOBER 9, 1959, 39 COMP. GEN. 276

MILITARY PERSONNEL - RETIRED PAY - RE-RETIREMENT - AFTER OCTOBER 1, 1949 - CARHART CASE IN THE ABSENCE OF A COURT DECISION HOLDING THAT THE RE-RETIREMENT CONCEPT OF THE GORDON CASE, GORDON V. UNITED STATES, 134 C.1CLS. 840, UNDER WHICH RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN THE MILITARY OR NAVAL FORCES PRIOR TO NOVEMBER 12, 1918, AND WHO AGAIN SERVED ON ACTIVE DUTY AFTER THEIR INITIAL RETIREMENT ARE BROUGHT WITHIN THE RETIRED PAY PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, GOVERNS THE RIGHTS OF A MEMBER WHOSE LAST PERIOD OF ACTIVE DUTY EXTENDED BEYOND OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, THE RETIRED PAY OF SUCH MEMBER IS FOR DETERMINATION UNDER SECTION 516 OF THE CAREER COMPENSATION ACT. THE APPLICATION OF THE "RE-RETIREMENT" CONCEPT OF THE GORDON CASE, GORDON V. UNITED STATES, 134 C.1CLS. 840, TO THE CARHART CASE, CARHART V. UNITED STATES, C.1CLS. NO. 353-57, AFFORDS NO BASIS FOR HOLDING THAT A WORLD WAR I OFFICER WHO WAS RELEASED FROM ACTIVE DUTY AFTER OCTOBER 1, 1949, WAS "RE -RETIRED" UNDER THE RULE IN THE GORDON CASE, BECAUSE THE CARHART CASE WAS NOT CONCERNED WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THE MEMBER HAVING NO SERVICE PRIOR TO NOVEMBER 12, 1918; ALSO, THE MEMBER WAS RELEASED FROM ACTIVE DUTY PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND WAS NOT WITHIN THE PURVIEW OF SECTION 516 THEREOF WHICH GOVERNS THE RETIRED PAY RIGHTS OF WORLD WAR I OFFICERS WHO SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949, IN THE ABSENCE OF A COURT DECISION ON THE APPLICABILITY OF SECTION 516 TO SUCH OFFICERS.

TO ADMIRAL BERNARD S. PUPEK ( USN, RETIRED) , OCTOBER 9, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1959, REQUESTING REVIEW OF THAT PART OF OUR CLAIMS DIVISION SETTLEMENT OF MARCH 10, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 25, 1949, THROUGH MARCH 31, 1955. SUCH CLAIM WAS BASED ON THE CASE OF GORDON V. UNITED STATES, 134 C.1CLS. 840. THAT PART OF YOUR CLAIM WAS DENIED BECAUSE THE RULE OF THE GORDON CASE HAS NOT BEEN HELD TO BE APPLICABLE IN THE CASE OF ANY RETIRED OFFICER WHO HAD SERVED PRIOR TO NOVEMBER 12, 1918, AND WHOSE LAST PERIOD OF ACTIVE DUTY EXTENDED BEYOND OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802), 37 U.S.C. 231 NOTE. IN THE ABSENCE OF A COURT DECISION HOLDING THAT SUCH RULE GOVERNS THE RIGHTS OF SUCH AN OFFICER, IT WAS CONCLUDED THAT YOUR RETIRED PAY AFTER OCTOBER 24, 1949, WAS FOR DETERMINATION UNDER SECTION 516 OF THE CAREER COMPENSATION ACT. YOUR REQUEST FOR RECONSIDERATION IS BASED ON THE RECENT CASE OF CARHART V. UNITED STATES, DECIDED JULY 13, 1959, C.1CLS. NO. 353-57.

THE RECORDS SHOW THAT YOU ENLISTED IN THE UNITED STATES ARMY ON OCTOBER 1, 1918, AND SERVED ON ACTIVE DUTY THEREIN UNTIL DECEMBER 8, 1918. YOUR ACTIVE DUTY SERVICE IN THE NAVY AS A COMMISSIONED OFFICER WAS FROM JUNE 8, 1925, TO DECEMBER 31, 1946, WHEN YOU WERE TRANSFERRED TO THE RETIRED LIST UPON YOUR OWN REQUEST AFTER COMPLETION OF 20 YEARS' SERVICE. YOU WERE ADVANCED TO THE RANK OF REAR ADMIRAL, BUT WITH RETIRED PAY COMPUTED ON THE RANK OF CAPTAIN, THE HIGHEST RANK SATISFACTORILY HELD. ON OCTOBER 19, 1948, YOU WERE RECALLED AND SERVED ON ACTIVE DUTY UNTIL OCTOBER 24, 1949.

ON THE DATE OF YOUR RELEASE TO INACTIVE DUTY ON THE RETIRED LIST ON OCTOBER 24, 1949, YOU WERE IN RECEIPT OF ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR A CAPTAIN WITH OVER 22 YEARS' SERVICE. PRIOR TO OCTOBER 1, 1949, YOU HAD BEEN IN RECEIPT OF THE ACTIVE DUTY PAY AND ALLOWANCES PRESCRIBED BY THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 37 U.S.C. 101, AS AMENDED, FOR A CAPTAIN WITH OVER 24 YEARS' SERVICE, HAVING COMPLETED 24 YEARS OF NAVAL SERVICE, ACTIVE AND INACTIVE, ON JUNE 7, 1949. SINCE OCTOBER 25, 1949, YOU HAD BEEN PAID RETIRED PAY UNDER THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, COMPUTED AT 75 PERCENTUM OF THE PAY OF A CAPTAIN WITH OVER 21 YEARS' SERVICE.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115, PROVIDES THAT THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THAT ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918,"HEREAFTER RETIRED UNDER ANY PROVISION OF LAW" SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE,"BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.' UNDER THE "RE-RETIREMENT" THEORY OF THE GORDON CASE, RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND WHO AGAIN SERVED ON ACTIVE DUTY AFTER THEIR INITIAL RETIREMENT, ARE ,RE-RETIRED" ON THE DATE OF THEIR RELEASE FROM SUCH SUBSEQUENT ACTIVE DUTY.

SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, IN PERTINENT PART PROVIDES THAT:

MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES * * * WHO HAVE BEEN * * * RETIRED * * * AND ENTITLED TO RECEIVE RETIRED PAY * * * SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY * * * FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT * * * PROVIDED, THAT THE RETIRED PAY * * * TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY * * * AT THE TIME OF HIS RETIREMENT * * * PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY PAY OR THE BASIC PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED * * * EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON * * *

IN DECISION B-78247 DATED NOVEMBER 5, 1958 (38 COMP. GEN. 348), WHICH INVOLVED AN OFFICER WHO WAS "RE-RETIRED" IN 1948 AND WHO WAS RELEASED FROM ACTIVE DUTY AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 FOLLOWING A SECOND TOUR OF ACTIVE DUTY, IT WAS HELD THAT HIS RIGHTS TO INCREASED RETIRED PAY ON HIS RELEASE TO INACTIVE DUTY ON THE RETIRED LIST ON DECEMBER 21, 1949, WERE FOR DETERMINATION UNDER SECTION 516 OF THE CAREER COMPENSATION ACT. IT WAS ALSO HELD THAT ONLY YEARS OF ACTIVE SERVICE MAY BE COUNTED FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING INCREASES IN RETIRED PAY UNDER SECTION 516. THE BASIS FOR THAT DECISION WAS STATED, AT PAGE 351, AS FOLLOWS:

AS FAR AS IS KNOWN, THE COURT OF CLAIMS HAS NOT YET PASSED UPON THE QUESTION OF THE APPLICABILITY OF SECTION 516 TO WORLD WAR 1 OFFICERS WHO SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949, OR WHETHER AN OFFICER WHO WAS RE-RETIRED BEFORE THAT DAY MAY BE RE-RETIRED A SECOND TIME UPON HIS RELEASE FROM A SECOND PERIOD OF ACTIVE DUTY AFTER THAT DATE. IN THE ABSENCE OF A COURT DECISION REQUIRING A DIFFERENT HOLDING, THE CONCLUSION APPEARS TO BE REQUIRED THAT MAJOR VESTAL'S RIGHTS TO INCREASED RETIRED PAY, ON AND AFTER DECEMBER 22, 1949 (THE DATE OF HIS RELEASE TO INACTIVE DUTY STATUS) ARE FOR DETERMINATION UNDER THAT SECTION.

IT IS YOUR CONTENTION, APPARENTLY, THAT THE CARHART CASE IS SIMILAR TO YOUR CASE AND IS AUTHORITY FOR THE PROPOSITION THAT YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 24, 1949, CONSTITUTED A "RE-RETIREMENT" WITHIN THE RULE OF THE GORDON CASE, SO AS TO ENTITLE YOU TO THE BENEFITS OF THE PROVISIONS CONTAINED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. IN THE CARHART CASE THE PLAINTIFF HAD SERVED FROM JULY 1, 1927, TO JUNE 11, 1931, AS A CADET IN THE UNITED STATES MILITARY ACADEMY. AFTER GRADUATION THEREFROM HE CONTINUED TO SERVE AS AN OFFICER IN THE UNITED STATES ARMY UNTIL NOVEMBER 30, 1941, WHEN HE WAS RETIRED FOR PHYSICAL DISABILITY. NINETEEN DAYS LATER HE WAS RECALLED TO ACTIVE DUTY AND CONTINUED TO SERVE ON ACTIVE DUTY UNTIL AUGUST 16, 1947, WHEN HE WAS RELEASED FROM ACTIVE DUTY. AFTER HIS RECALL TO ACTIVE DUTY ON DECEMBER 19, 1941, HE SERVED IN HIS FORMER RANK OF CAPTAIN UNTIL JULY 5, 1942, WHEN HE WAS PROMOTED TO MAJOR. ON APRIL 30, 1943, HE WAS PROMOTED TO LIEUTENANT COLONEL AND ON JUNE 23, 1947, HE WAS PROMOTED TO COLONEL, IN WHICH GRADE HE CONTINUED TO SERVE UNTIL HIS RELEASE FROM ACTIVE DUTY ON AUGUST 16, 1947. UPON HIS RELEASE FROM ACTIVE DUTY HE WAS PAID THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER 15 YEARS' SERVICE UNDER THE PROVISIONS OF SECTION 203 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT 1081, 1085, 10 U.S.C. 850, 1002, WHICH PROVIDED FOR ADVANCEMENT ON THE RETIRED LIST OF OFFICERS TO THE HIGHEST TEMPORARY GRADE IN WHICH THEY HAD SATISFACTORILY SERVED FOR NOT LESS THAN SIX MONTHS DURING THE PERIOD FROM SEPTEMBER 9, 1940, TO JUNE 30, 1946. THE PLAINTIFF CLAIMED THAT HE WAS ENTITLED TO THE RETIRED PAY OF A COLONEL WITH OVER 15 YEARS' SERVICE UNDER THE PROVISIONS OF SECTION 203 (F) OF THE ABOVE ACT, 10 U.S.C. 1005. THAT SECTION PROVIDES, IN PART, THAT A COMMISSIONED OFFICER OF THE REGULAR ARMY ,RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW ON OR AFTER AUGUST 7, 1947, BUT NOT LATER THAN JANUARY 1, 1957, WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE NOT HIGHER THAN THAT OF MAJOR GENERAL SHALL BE ADVANCED ON THE * * * RETIRED LIST TO SUCH GRADE, AND SHALL RECEIVE RETIRED * * * PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE * * *.' THE PLAINTIFF CLAIMED THAT NOTWITHSTANDING THE FACT THAT HE WAS ON THE RETIRED LIST FROM NOVEMBER 30 TO DECEMBER 19, 1941, HE WAS NEVERTHELESS "RETIRED OR GRANTED RETIREMENT PAY" UPON HIS RELEASE FROM ACTIVE DUTY ON AUGUST 16, 1947. THE COURT HELD THAT THE PLAINTIFF HAD BEEN "RE-RETIRED" UPON HIS RELEASE FROM ACTIVE DUTY WITHIN THE RE- RETIREMENT CONCEPT ENUNCIATED IN THE GORDON AND RELATED CASES AND HE WAS, THEREFORE, ENTITLED TO RECOVER THE DIFFERENCE BETWEEN THE RETIRED PAY OF A COLONEL AND THAT OF A LIEUTENANT COLONEL UNDER SECTION 203 (F).

A CAREFUL READING OF THE FACTS OF THE CARHART CASE, AS OUTLINE ABOVE, SHOWS THAT THAT CASE DOES NOT SUPPORT YOUR CLAIM. THE CARHART CASE WAS NOT CONCERNED WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SINCE THE PLAINTIFF IN THAT CASE HAD NO SERVICE PRIOR TO NOVEMBER 12, 1918. ALSO, SINCE HE WAS RELEASED FROM ACTIVE DUTY PRIOR TO OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949), SECTION 516 OF THAT ACT HAD NO BEARING ON HIS CLAIM.

IN THE CIRCUMSTANCES, THIS OFFICE MUST ADHERE TO THE VIEW THAT, IN THE ABSENCE OF A COURT DECISION ON THE QUESTION OF THE APPLICABILITY OF SECTION 516 OF WORLD WAR I OFFICERS WHO SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949, SUCH AN OFFICER'S RIGHTS TO INCREASED RETIRED PAY ARE FOR DETERMINATION UNDER SECTION 516. THE SETTLEMENT OF MARCH 10 ,1959, IS AFFIRMED.