B-139530, DEC. 10, 1969

B-139530, DEC. 10, 1969

PAY--RETIRED--ADVANCEMENT ON RETIRED LIST--HIGHEST TEMPORARY GRADE DETERMINATIONS ARMY MEMBER WITH ACTIVE DUTY SERVICE AS CAPTAIN WHO RETIRED AS WARRANT OFFICER, WAS RECALLED TO ACTIVE DUTY, ACCEPTING APPOINTMENT AS MAJOR, OFFICERS RESERVE CORPS, BUT NOT CALLED TO DUTY AS RESERVE OFFICER, MAY NOT BE ADVANCED ON RETIRED LIST TO MAJOR, SINCE INTERPRETATIONS OF 10 U.S.C. 3964 ENTITLE WARRANT OFFICER WITH 30 YEARS' ACTIVE DUTY AND RETIRED LIST SERVICE TO BE ADVANCED ON RETIRED LIST TO HIGHEST PERMANENT, AS WELL AS TEMPORARY, GRADE BUT UNDER ROBERTS V UNITED STATES, 15 CT. CL. 360 (1960), AT LEAST 6 MONTHS AT HIGHEST GRADE WAS HELD NECESSARY TO QUALIFY AS SATISFACTORY SERVICE. SINCE NOTHING IN RECORD SHOWS ACTIVE DUTY SERVICE IN RANK OF MAJOR, NO BASIS EXISTS TO QUESTION CORRECTNESS OF ADJUTANT GENERAL'S DETERMINATION AS TO HIGHEST RANK SATISFACTORILY HELD.

TO CAPTAIN CONRAD W. WEISER, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 4, 1969, IN WHICH YOU REQUEST THAT YOU BE ADVANCED ON THE ARMY RETIRED LIST FROM YOUR PRESENT RANK OF CAPTAIN TO THAT OF MAJOR.

THE RECORDS SHOW THAT YOU ENLISTED IN THE ARMY ON APRIL 4, 1919, AND THAT EXCEPT FOR A SHORT PERIOD OF TIME IN 1922 YOU SERVED CONTINUOUSLY ON ACTIVE DUTY -- INCLUDING SERVICE AS A CAPTAIN, AUS, FROM APRIL 23, 1943, TO JANUARY 2, 1945 -- UNTIL YOU WERE RETIRED AS A WARRANT OFFICER, JUNIOR GRADE, ON FEBRUARY 28, 1945. YOU WERE RECALLED TO ACTIVE DUTY ON NOVEMBER 11, 1946, AND ON OCTOBER 29, 1947, ACCEPTED AN APPOINTMENT AS MAJOR, OFFICERS RESERVE CORPS. APPARENTLY, YOU WERE NOT CALLED TO ACTIVE DUTY AS A RESERVE OFFICER AND UPON YOUR RELEASE FROM ACTIVE DUTY ON JUNE 30, 1949, YOU WERE ADVANCED TO THE RANK OF CAPTAIN ON THE AUS RETIRED LIST.

YOUR CLAIM STEMS FROM THE PROVISIONS OF 10 U.S.C. 3964 AND RECENT INTERPRETATIONS OF THAT STATUTE BY THIS OFFICE AND THE UNITED STATES COURT OF CLAIMS. SECTION 3964 ENTITLES EACH WARRANT OFFICER OF THE ARMY, WHO HAS A TOTAL OF 30 YEARS OF ACTIVE DUTY AND RETIRED LIST SERVICE, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON "ACTIVE DUTY" SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE ARMY. YOU SERVED AS A WARRANT OFFICER IN THE REGULAR ARMY FROM FEBRUARY 8, 1941, TO MAY 16, 1942, AND FROM JANUARY 3 TO FEBRUARY 28, 1945, AND YOU MET THE 30-YEAR REQUIREMENT IN JUNE 1949.

THE COURT OF CLAIMS HELD IN TAYLOR V UNITED STATES, 174 CT. CL. 1266 (1966), THAT SERVICE UNDER A PERMANENT APPOINTMENT IN A HIGHER GRADE, AS WELL AS SERVICE UNDER A TEMPORARY APPOINTMENT, WOULD ENTITLE A SERVICE MEMBER TO ADVANCEMENT ON THE RETIRED LIST UNDER 10 U.S.C. 3964. THIS WAS CONSISTENT WITH AN EARLIER CASE, FRIESTEDT V UNITED STATES, 173 CT. CL. 447 (1965), WHICH HAD SIMILARLY CONSTRUED 10 U.S.C. 1372 (2). THE COMPTROLLER GENERAL IN A DECISION TO THE SECRETARY OF DEFENSE, B-146568, B -149487, SEPTEMBER 26, 1968, AGREED TO FOLLOW THE TAYLOR CASE AND APPLY THE FRIESTEDT RULING IN SITUATIONS INVOLVING 10 U.S.C. 3964.

IN THE TAYLOR CASE, HOWEVER, THE COURT HELD THAT THE PLAINTIFF HAD NOT SERVED ON ACTIVE DUTY IN THE HIGHEST PERMANENT GRADE FOR 6 MONTHS AND THEREFORE THAT SUCH SERVICE WAS NOT SATISFACTORY WITHIN THE PURVIEW OF 10 U.S.C. 3964 AND APPLICABLE REGULATIONS FIXING A 6 MONTHS' MINIMUM ACTIVE SERVICE REQUIREMENT. THIS DECISION WAS BASED ON ROBERTS V UNITED STATES, 151 CT. CL. 360 (1960), WHERE IT WAS HELD THAT SINCE THE SECRETARY OF THE AIR FORCE DID NOT HAVE ANY PARTICULAR CRITERIA SET BY STATUTE AS TO WHAT WAS TO BE CONSIDERED SATISFACTORY SERVICE, HE COULD DETERMINE THAT AT LEAST 6 MONTHS OF ACTIVE DUTY AT THE HIGHEST GRADE WAS NECESSARY IN ORDER TO QUALIFY AS SATISFACTORY SERVICE AND THAT SUCH DETERMINATION WAS NEITHER ARBITRARY NOR ILLEGAL.

THERE IS NOTHING IN THE RECORD BEFORE THIS OFFICE WHICH SHOWS THAT YOU EVER SERVED ON ACTIVE DUTY IN THE RANK OF MAJOR. YOUR PAY RECORD IMMEDIATELY PRIOR TO YOUR BEING RELEASED FROM ACTIVE DUTY IN 1949 SHOWS THAT YOU WERE BEING PAID AS A CAPTAIN NOT AS A MAJOR AND YOUR ORDERS OF JUNE 27, 1949, WERE ADDRESSED TO YOU IN THE RANK OF CAPTAIN.

UNDER DATE OF MARCH 2, 1959, THE OFFICE OF THE ADJUTANT GENERAL ADVISED US THAT THE HIGHEST RANK SATISFACTORILY HELD BY YOU WAS THAT OF CAPTAIN. WE FIND NO BASIS TO QUESTION THE CORRECTNESS OF THAT DETERMINATION.