B-141876, MAR. 18, 1960

B-141876, MAR. 18, 1960

TO LIEUTENANT COLONEL WILLIAM E. DOELLER, USAFR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1960, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MAY 29, 1959, IN DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

IT APPEARS FROM THE RECORD, AS SHOWN IN THE AIR FORCE REGISTER, VOLUME II, 1959, AT PAGE 31, THAT YOU WERE RETIRED AS A RESERVE OFFICER WITH THE RANK OF LIEUTENANT COLONEL, UNITED STATES AIR FORCE, EFFECTIVE MAY 31, 1953, UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 (PUBLIC LAW 810), 62 STAT. 1087, AND YOUR RETIRED PAY WAS COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT.

OUR CLAIMS DIVISION DENIED YOUR CLAIM SUBSTANTIALLY FOR THE REASON THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, 368, APPLY ONLY TO OFFICERS OF THE REGULAR COMPONENTS. IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOU RESIGNED IN 1922 AS A FIRST LIEUTENANT, FIELD ARTILLERY, REGULAR ARMY, AFTER SERVICE IN THAT GRADE AND STATUS. YOU APPARENTLY BELIEVE THAT SUCH REGULAR ARMY SERVICE PRIOR TO 1922 ENTITLES YOU TO INCREASED RETIRED PAY UNDER THE PROVISIONS OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

OUR DECISIONS HAVE HELD THAT THE BENEFITS OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, DO NOT EXTEND TO RESERVISTS. B 94125, JULY 27, 1950, AND 31 COMP. GEN. 293. OUR POSITION HAS BEEN UPHELD BY THE COURT OF CLAIMS. SEE BERRY V. UNITED STATES, 123 C.CLS. 530, AND REYNOLDS V. UNITED STATES, 125 C.CLS. 108. IN THESE CASES, THE BENEFITS OF PARAGRAPH 4 WERE DENIED THE OFFICERS INVOLVED, NOT BECAUSE THEY HAD SERVED PRIOR TO NOVEMBER 12, 1918, AS MEMBERS OF A RESERVE UNIT, BUT BECAUSE THEY WERE RESERVISTS AT THE DATE OF RETIREMENT. IN THE BERRY AND REYNOLDS CASES, THE TWO NAVAL OFFICERS INVOLVED THEREIN ENTERED ON ACTIVE DUTY IN THE REGULAR NAVY PRIOR TO NOVEMBER 12, 1918, AFTER GRADUATION FROM THE UNITED STATES NAVAL ACADEMY. BOTH WERE PLACED ON THE RETIRED LIST OF THE U.S. NAVAL RESERVE AND, AS IN YOUR CASE, THE OFFICER IN THE REYNOLDS CASE, WAS RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948. IN BOTH THE BERRY AND REYNOLDS CASES, THE COURT OF CLAIMS REFUSED TO EXTEND THE BENEFITS OF PARAGRAPH 4 TO THE OFFICERS INVOLVED.

IN ADDITION, SEE 29 COMP. GEN. 424 WHERE IT WAS HELD THAT THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 IS A SPECIAL LAW PROVIDING FOR RETIREMENT PAY FOR A PARTICULAR CLASS OF MEMBERS OR FORMER MEMBERS OF THE ARMED SERVICES WHOSE STATUS IS SUCH THAT THEY WOULD NOT OTHERWISE BE ENTITLED TO ANY MILITARY OR NAVAL RETIREMENT BENEFITS. THE RETIREMENT PAY SYSTEM SET UP BY TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 IS ENTIRELY SEPARATE AND DISTINCT FROM THAT PROVIDED FOR MEMBERS OF THE ARMED SERVICES GENERALLY. THE LAWS GOVERNING THE RETIREMENT PAY SYSTEMS OF THE TWO GROUPS MUST BE CONSIDERED TO BE MUTUALLY EXCLUSIVE. THE FACT THAT YOU MAY HAVE SERVED AS AN OFFICER IN THE REGULAR ARMY PRIOR TO 1922 WOULD NOT OPERATE TO ALTER YOUR STATUS AT THE TIME OF RETIREMENT, SUCH STATUS BEING THAT OF A RESERVE OFFICER.

SINCE THE RECORD SHOWS THAT YOU RETIRED ON MAY 31, 1953, AS A RESERVIST ON ACCOUNT OF AGE AND LONGEVITY (LENGTH OF SERVICE), YOU ARE NOT ENTITLED TO THE BENEFITS OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AND THE DISALLOWANCE OF MAY 29, 1959, IS SUSTAINED.