B-139908, SEP. 26, 1966

B-139908, SEP. 26, 1966

TO COLONEL WILLIAM B. RUGGLES, USAR, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1966, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTER DATED AUGUST 12, 1966, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120.

IT APPEARS FROM THE INFORMATION BEFORE US (U.S. ARMY REGISTER 1963, VOLUME II, PAGE 250), THAT YOU WERE RETIRED ON MARCH 31, 1951, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, 10 U.S.C. 1331. THE ABOVE-MENTIONED ACT OF APRIL 14, 1966, PUB.L. 89-395, PROVIDES AS FOLLOWS:

"THAT THE LIMITATION OF TIME PRESCRIBED BY THE ACT OF OCTOBER 9, 1940 (54 STAT. 1061; 31 U.S.C. 237), IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE, IF (1) HE SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918; (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1, 1942, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942: PROVIDED, THAT A CLAIM FOR SUCH RETIRED PAY SHALL BE FILED WITH THE GENERAL ACCOUNTING OFFICE BY EACH SUCH OFFICER OR BY HIS DESIGNATED BENEFICIARY, WITHIN ONE YEAR FOLLOWING THE DATE OF ENACTMENT OF THIS ACT.'

THE PURPOSE OF THE ACT OF APRIL 14, 1966, WAS TO WAIVE THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, WITH RESPECT TO CERTAIN OFFICERS HAVING OTHERWISE VALID CLAIMS FOR THE INCREASED RETIRED PAY BENEFITS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368. THE ABOVE QUOTED ACT APPLIES ONLY TO THOSE OFFICERS WHO RETIRED PRIOR TO JUNE 1, 1942. POINTED OUT IN OUR CLAIMS DIVISION LETTER, SINCE YOU WERE NOT RETIRED PRIOR TO JUNE 1, 1942, THE PROVISIONS OF PUBLIC LAW 89-395 ARE NOT APPLICABLE IN YOUR CASE AND AFFORD NO BASIS FOR ADJUSTMENT OF YOUR RETIRED PAY. FOR THIS REASON, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

YOU EXPRESS THE VIEW IN EFFECT THAT RESERVE OFFICERS WHO SERVED IN WORLD WARS I AND II ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED UNDER THE SAME PROVISIONS OF LAW AS REGULAR OFFICERS AND THAT BOTH THE COMPTROLLER GENERAL AND THE COURT OF CLAIMS HAVE MISCONSTRUED THE LAW. WHILE YOU DO NOT CITE THE APPLICABLE LAW, PRESUMABLY YOU HAVE REFERENCE TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

AS YOU INDICATE WE HAVE HELD THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 DOES NOT APPLY TO RETIRED RESERVE OFFICERS. 25 COMP. GEN. 274. THE COURT OF CLAIMS HAS TAKEN THE SAME VIEW IN THE CASE OF JOHN C. ABBOTT, ET AL. V. UNITED STATES, 152 CT.CL. 798, DECIDED MARCH 1, 1961, CERTIORARI DENIED NOVEMBER 13, 1961, 368 U.S. 915. IN THAT CASE THE COURT CITED ITS PREVIOUS CASES TO THE SAME EFFECT, BERRY V. UNITED STATES, 123 CT.CL. 530 (1952), AND REYNOLDS V. UNITED STATES, 125 CT.CL. 108 (1953).

YOU FURTHER SAY THAT CLAIMS LIKE YOURS MAY NOW BE FILED IN THE DISTRICT COURTS OF THE UNITED STATES AND YOU ASK WHETHER, IF YOU FILE A SUIT IN SUCH A COURT, ADJUSTMENT OF RETIRED PAY WILL BE MADE RETROACTIVELY TO THE DAY OF ENTITLEMENT OR WHETHER SUCH ADJUSTMENT IS RESTRICTED TO THE REGULAR TIME LIMIT FOR BACK PAY CLAIMS.

THE PROVISIONS OF THE ACT OF AUGUST 30, 1964, PUB.L. 88-519, 78 STAT. 699, WHICH AMENDED 28 U.S.C. 1346 (D), GRANT JURISDICTION TO THE DISTRICT COURTS OF THE UNITED STATES TO CONSIDER ANY CIVIL ACTION TO RECOVER FEES, SALARY OR COMPENSATION FOR OFFICIAL SERVICES OF OFFICERS OR EMPLOYEES OF THE UNITED STATES. WITH RESPECT TO CIVIL ACTIONS FILED IN SUCH COURTS, SECTION 2401 (A) OF TITLE 28, U.S. CODE, PROVIDES, IN PERTINENT PART, THAT "EVERY CIVIL ACTION COMMENCED AGAINST THE UNITED STATES SHALL BE BARRED UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION FIRST ACCRUES.' WE KNOW OF NO PROVISION OF LAW WHICH WOULD EXEMPT A CASE SUCH AS YOU SUGGEST FROM THE APPLICATION OF SECTION 2401 (A).