B-142152, APR. 12, 1960

B-142152, APR. 12, 1960

TO COMMANDER THOMAS F. CARLIN, USN (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1960, REQUESTING ADJUSTMENT OF YOUR RETIRED PAY IN ACCORDANCE WITH THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AND OUR LETTER DATED SEPTEMBER 30, 1958, B- 137364.

OFFICE RECORDS SHOW THAT A SIMILAR CLAIM SUBMITTED BY YOU, BASED ON THE SAME STATUTE AND A RELATED DECISION DATED SEPTEMBER 3, 1959, WAS DENIED BY OFFICE SETTLEMENT DATED FEBRUARY 1, 1960. YOUR PRESENT LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT DISALLOWANCE ON THE BASIS OF THE LETTER OF SEPTEMBER 30, 1958.

YOUR CLAIM WAS DISALLOWED FOR THE REASON, AMONG OTHERS, THAT SINCE THE DECISION DATED SEPTEMBER 3, 1959, CONCERNED ONLY RETIRED PAY COMPUTED UNDER SECTION 402/D) OF THE CAREER COMPENSATION ACT, 63 STAT.818, AND, INASMUCH AS YOUR RETIRED PAY WAS NOT AUTHORIZED TO BE COMPUTED UNDER THAT PROVISION OF LAW--- FOR THE REASON THAT YOUR PERCENTAGE OF DISABILITY WAS LESS THAN THE REQUIRED 30 PERCENT--- THAT DECISION FURNISHED NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

THE RECORD SHOWS THAT SUBSEQUENT TO YOUR TRANSFER TO THE RETIRED LIST OF OFFICERS OF THE UNITED STATES NAVY ON MARCH 14, 1927, BY REASON OF PHYSICAL DISABILITY IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 417, YOU SERVED ON ACTIVE DUTY FOR THE PERIOD DECEMBER 3, 1940, THROUGH MAY 30, 1946, AT WHICH TIME YOU HAD COMPLETED OVER NINE YEARS OF CREDITABLE (ACTIVE FEDERAL) SERVICE FOR RETIRED PAY PURPOSES. THE RECORD FURTHER SHOWS THAT ON JULY 11, 1950, PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, YOU WERE ASSIGNED A PERCENTAGE OF DISABILITY OF 10 PERCENT, THUS ESTABLISHING THAT YOU COULD NOT QUALIFY FOR DISABILITY RETIREMENT PAY UNDER TITLE IV OF THAT ACT (YOU WOULD HAVE BEEN ENTITLED ONLY TO LUMP-SUM SETTLEMENT OF DISABILITY SEVERANCE PAY SINCE YOUR PERCENTAGE OF DISABILITY WAS LESS THAN 30 PERCENT), AND THAT YOU WERE PAID RETIRED PAY UNDER PROVISIONS OF LAW IN EFFECT PRIOR TO OCTOBER 1, 1949, UNDER THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT. SUCH PAY WAS COMPUTED AT 75 PERCENT OF YOUR ACTIVE DUTY PAY AT THE TIME OF YOUR RELEASE TO INACTIVE DUTY AS A COMMANDER WITH OVER NINE YEARS OF ACTIVE SERVICE, SUCH AMOUNT BEING GREATER THAN COULD HAVE BEEN PAID YOU UNDER SECTION 511 (B) OF THAT ACT, COMPUTED ON THE BASIS OF TWO AND ONE-HALF PERCENT OF YOUR MONTHLY ACTIVE DUTY PAY, MULTIPLIED BY THE NUMBER OF YEARS (NINE) OF ACTIVE SERVICE CREDITABLE TO YOU.

IN REFERRING TO THE PAY READJUSTMENT ACT OF 1942, AND THE LETTER OF SEPTEMBER 30, 1958, B-137364, IN SUPPORT OF YOUR CLAIM, YOU APPARENTLY ARE RELYING ON THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS IN THE GORDON (134 C.CLS. 840), FIELD (141 C.CLS. 312), AND SHERFEY (141 C.CLS. 307) CASES. IN OUR LETTER OF SEPTEMBER 30, 1958, WE STATED THAT WE WOULD APPLY THE RULE ADOPTED IN THOSE CASES, IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. THE ,RE-RETIREMENT" BENEFITS GRANTED THE PLAINTIFFS IN THOSE CASES WERE BASED ON THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, WHICH AUTHORIZE COMPUTATION OF RETIRED PAY AT "75 PER CENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT"--- INTERPRETED BY THE COURT TO INCLUDE A "RE-RETIREMENT"--- IN THE CASES OF OFFICERS OF THE REGULAR SERVICES WHO HAD SERVED IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918. SINCE YOU DID NOT HAVE SERVICE PRIOR TO THAT DATE, THE "RE-RETIREMENT" CONCEPT, AS APPLIED IN THE GORDON, FIELD AND SHERFEY CASES, IS NOT APPLICABLE TO YOUR CASE.

IT IS CLEAR THAT NEITHER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942 NOR THE DECISIONS OF THIS OFFICE PROVIDE ANY AUTHORITY FOR GRANTING YOU INCREASED RETIRED PAY AND WE KNOW OF NO OTHER AUTHORITY OF LAW OR COURT DECISIONS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.