B-139914, SEP. 1, 1966

B-139914, SEP. 1, 1966

TO LIEUTENANT REID W. MALCOLM, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1966, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE, JUNE 29, 1966, DISALLOWING YOUR CLAIM FOR RETIRED PAY BELIEVED TO BE DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUB.L. 89-395, 80 STAT. 120.

THE RECORD SHOWS THAT YOU ENLISTED IN THE NAVAL SERVICE SEPTEMBER 19, 1912, AND THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE EFFECTIVE NOVEMBER 10, 1928; THAT YOU RESUMED AN ACTIVE DUTY STATUS AS AN ENLISTED MEMBER OCTOBER 18, 1940; THAT YOU BECAME A TEMPORARY COMMISSIONED OFFICER ON AUGUST 15, 1942, AND FOLLOWING COMPLETION OF 30 YEARS' SERVICE YOU WERE PLACED ON THE RETIRED LIST OF ENLISTED MEMBERS OF THE REGULAR NAVY EFFECTIVE OCTOBER 1, 1942, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1179, 34 U.S.C. 854C (1940 ED.). YOUR ACTIVE DUTY ENDED DECEMBER 27, 1946, AND YOUR APPOINTMENT AS A TEMPORARY COMMISSIONED OFFICER WAS STATUTORILY TERMINATED THE SAME DATE. SEE SECTION 10 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 605, AS AMENDED, 34 U.S.C. 350I/A) (1946 ED.). THUS, ON DECEMBER 28, 1946, YOU REVERTED TO AN INACTIVE STATUS ON THE RETIRED LIST AS A RETIRED ENLISTED MEMBER OF THE REGULAR NAVY AND UNDER AUTHORITY OF THE STATUTORY PROVISIONS LAST CITED YOU WERE THEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT, THE HIGHEST COMMISSIONED GRADE IN WHICH YOU HAD SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT. SEE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS, JANUARY 1, 1957, PAGES 577 AND 600.

IN CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 8, 1958, YOU WERE ALLOWED INCREASED RETIRED PAY UNDER THE RULE OF THE SANDERS DECISION, 120 CT.CL. 501 (1951), REPRESENTING THE DIFFERENCE BETWEEN THE ONE-HALF AND ONE-THIRD RATES COMPUTED ON THE PAY OF A LIEUTENANT FOR THE PERIOD MARCH 26, 1948, TO SEPTEMBER 30, 1949, INCLUSIVE. YOUR CLAIM FOR A SIMILAR INCREASE IN RETIRED PAY FOR THE PERIOD PRECEDING MARCH 26, 1948, WAS DISALLOWED IN THE SAME SETTLEMENT AS REQUIRED BY THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237 (1940 ED.), BECAUSE THE CLAIM FOR THAT PERIOD HAD NOT BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER ACCRUAL.

ASSERTING THAT YOU HAD BEEN RETIRED AS A COMMISSIONED OFFICER OF THE NAVY, YOU NEXT PRESENTED CLAIM IN LETTER DATED JUNE 1, 1959, 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. SUCH CLAIM WAS DISALLOWED BY THE CLAIMS DIVISION ON JUNE 12, 1959.

PUBLIC LAW 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.'

YOUR CLAIM FOR THE BENEFITS OF PUBLIC LAW 89-395 WAS DISALLOWED BY THE CLAIMS DIVISION ON JUNE 29, 1966, ON THE BASIS THAT "* * * YOU WERE NOT RETIRED PRIOR TO JUNE 1, 1942, AS AN OFFICER * * " IN LETTER OF JULY 5, 1966, YOU REQUEST INFORMATION "* * * AS TO WHOM AN APPEAL OF THIS FINDING SHOULD BE DIRECTED * * *.' IN THAT SAME LETTER YOU HAVE AGAIN INDICATED YOUR BELIEF THAT YOU WERE RETIRED AS AN OFFICER AND YOU ALSO EXPRESSLY REFER TO THAT PART OF YOUR SANDERS-TYPE CLAIM WHICH WAS DISALLOWED IN THE CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 8, 1958, BY REASON OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940.

THE PURPOSE OF PUBLIC LAW 89-395 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 1942 LAW. CONSEQUENTLY, PUBLIC LAW 89-395 HAS NO EFFECT WHATEVER WITH RESPECT TO YOUR CLAIM FOR SANDERS-TYPE RETIRED PAY BENEFITS FOR THE PERIOD DECEMBER 28, 1946, TO MARCH 25, 1948, INCLUSIVE, WHICH REMAINS SUBJECT TO THE 10- YEAR BARRING STATUTE. YOU ARE NOT ENTITLED TO THE BENEFITS OF THE 1942 LAW BECAUSE YOU WERE NOT RETIRED AS AN OFFICER. ALSO, YOU ARE NOT WITHIN THE SCOPE OF PUBLIC LAW 89-395 BECAUSE YOU WERE NOT RETIRED PRIOR TO JUNE 1, 1942. HENCE, THE DISALLOWANCE OF YOUR CLAIM FOR THE INCREASED RETIRED PAY BENEFITS SOUGHT BY YOU WAS CORRECT AND IS SUSTAINED.

AS TO YOUR CONTENTION THAT YOU WERE RETIRED AS AN OFFICER, IT SEEMS PERTINENT TO CALL YOUR ATTENTION TO THE CASE OF JONES V. UNITED STATES, 151 CT.CL. 119, DECIDED OCTOBER 5, 1960. IN THAT CASE THE COURT HAD FOR CONSIDERATION A CLAIM FOR THE INCREASED RETIRED PAY BENEFITS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW PRESENTED BY A RETIRED ENLISTED MEMBER OF THE NAVY WHO, LIKE YOURSELF, HAD BEEN ADVANCED UPON HIS RELEASE FROM ACTIVE DUTY TO THE HIGHEST COMMISSIONED OFFICER GRADE IN WHICH THE SECRETARY OF THE NAVY DETERMINED THAT HE HAD SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT MADE IN ACCORDANCE WITH THE NAVY TEMPORARY PROMOTION ACT OF JULY 24, 1941. WHEN JONES WAS RETURNED TO THE RETIRED LIST IN OCTOBER 1946 HE BEGAN TO RECEIVE RETIRED PAY AS PRESCRIBED BY LAW FOR A RETIRED ENLISTED MEMBER BUT COMPUTED ON THE RATE OF BASIC PAY APPLICABLE TO HIS TEMPORARY COMMISSIONED OFFICER GRADE. JONES, WHO HAD SERVED IN THE NAVY PRIOR TO NOVEMBER 12, 1918, CONTENDED, AS YOU DO, THAT HE HAD BEEN RETIRED AS AN "OFFICER" WITHIN THE MEANING OF THE 1942 STATUTE AND, HENCE, THAT HE WAS ENTITLED TO RECEIVE GREATER RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THAT LAW.

IN ANSWERING JONES' CONTENTION, THE COURT OF CLAIMS STATED IN PERTINENT PART AS FOLLOWS:

"WE MUST DISAGREE, HOWEVER, WITH THE PLAINTIFF'S (JONES-) SUGGESTION THAT HE WAS RE-RETIRED AS AN OFFICER AND IS THEREFORE ENTITLED TO THE RETIRED PAY RATE OF PARAGRAPH 4, SECTION 15. THE SINE QUA NON OF THE BENEFITS OF THAT PORTION OF THE 1942 ACT IS RETIREMENT AS AN OFFICER SINCE THE STATUTE SPEAKS OF OFFICERS "HEREINAFTER RETIRED.'

"SINCE PLAINTIFF'S TEMPORARY OFFICER APPOINTMENT TERMINATED BY OPERATION OF LAW ON THE LAST DAY OF HIS ACTIVE SERVICE, HE THEN REVERTED TO THE ONLY OTHER MILITARY STATUS HE HAD, VIZ, A RETIRED, PERMANENT CHIEF QUARTERMASTER, IN OTHER WORDS, AN ENLISTED MAN. HIS ADVANCEMENT TO AND CLASSIFICATION AS A LIEUTENANT COMMANDER (JONES' HIGHEST TEMPORARY COMMISSIONED OFFICER GRADE) ON THE RETIRED LIST WAS A SEPARATE TRANSACTION OCCURRING ONLY BECAUSE OF THE STATUTORY ALLOWANCE THAT HE WOULD HAVE, AFTER RESUMING INACTIVE STATUS, THE HIGHEST TEMPORARY ACTIVE RANK HELD. IT IS FACTUALLY CLEAR THAT * * * (JONES-) REVERSION TO INACTIVE STATUS AND THE ADVANCE ON THE RETIRED LIST WERE NOT A SINGLE TRANSACTION. * * *

"* * * MOREOVER, THE STATUTES REQUIRED THAT HE BE RETURNED TO INACTIVE STATUS AS AN ENLISTED MAN, AND THEN BE AWARDED THE HIGHER OFFICER RANK.

"THUS, WE SEE THAT THE ONLY POSSIBLE INTERPRETATION OF THE FACTS BEFORE US IS THAT PLAINTIFF WAS RE-RETIRED AS AN ENLISTED MAN (IN OCTOBER 1946) AND THEN ADVANCED TO OFFICER STATUS ON THE RETIRED LIST IN RECOGNITION OF HIS TEMPORARY ACTIVE SERVICE AS AN OFFICER.

"* * * INSTEAD OF SAYING THAT PLAINTIFF WOULD BE RETIRED AS AN OFFICER, THE STATUTE RETURNED HIM TO INACTIVE STATUS (WHICH HE HAD PREVIOUSLY OCCUPIED AS AN ENLISTED MAN) AND SAID HE WOULD THEN "HAVE" THE HIGHER GRADE AND EMOLUMENTS FLOWING THEREFROM. WE MUST CONCLUDE, THEREFORE, THAT CONGRESS INTENDED JONES AND OTHERS IN HIS FACTUAL AREA TO RESUME THEIR STATUS AS RETIRED ENLISTED MEN, AND TO THEN BE GRANTED A RETIRED PAY WHICH RECOGNIZED THAT, FOR A TIME, THEY HAD BEEN CALLED UPON TO ASSUME GREATER RESPONSIBILITY AND TO DISCHARGE DUTIES REQUIRING HIGHER SKILLS.'

IN CONCLUSION RECOVERY WAS DENIED BY THE COURT FOR THE REASON THAT:

"SINCE THE PLAINTIFF COULD NOT HAVE RETIRED AS AN OFFICER UNDER THE PROVISIONS OF THE APPLICABLE STATUTE, HE CANNOT QUALIFY FOR RETIRED PAY PURSUANT TO PARAGRAPH 4, SECTION 15, OF THE PAY READJUSTMENT ACT OF 1942,

THE FACTS AND STATUTORY PROVISIONS GOVERNING YOUR RETIRED PAY STATUS CLEARLY COME WITHIN THE RULE OF THE JONES DECISION OF OCTOBER 5, 1960.

IN RESPONSE TO YOUR REQUEST AS TO WHOM YOU CAN APPEAL THE ACTION TAKEN ON YOUR CLAIM, YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE FINAL AND CONCLUSIVE ON ALL OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE DISTRICT COURTS OF THE UNITED STATES ARE VESTED WITH JURISDICTION (SUBJECT TO CERTAIN LIMITATIONS) TO ENTERTAIN CIVIL ACTIONS AGAINST THE UNITED STATES WHICH ARE FOUNDED UPON THE CONSTITUTION, AN ACT OF CONGRESS, OR REGULATION OF AN EXECUTIVE DEPARTMENT. SEE 28 U.S.C. 1346 AND 1491.