B-143300, JUL. 21, 1960

B-143300, JUL. 21, 1960

TO COLONEL JOHN ASHLEY GREENE, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 7, 1960, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIREMENT PAY ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367 (37 U.S.C. 115), WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 28, 1959.

YOUR NAME IS LISTED ON PAGE 38 OF THE AIR FORCE REGISTER, VOLUME II, JANUARY 1959, WITH A SHOWING THAT YOU WERE RETIRED AS A RESERVE OFFICER, RANK OF COLONEL, EFFECTIVE JANUARY 31, 1958, PURSUANT TO THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1081, 1087, AND, APPARENTLY, YOUR RETIRED PAY HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THAT ACT.

THE ABOVE-MENTIONED SETTLEMENT WAS PREDICATED ON THE CONSISTENT HOLDINGS BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND BY THE COURTS THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, APPLY ONLY TO OFFICERS OF THE REGULAR SERVICES AND THAT AN OFFICER OF A RESERVE COMPONENT OF THE ARMED SERVICES IS NOT ENTITLED TO THE BENEFITS OF SUCH PROVISIONS. SEE 31 COMP. GEN. 293, BERRY V. UNITED STATES, 123 C.CLS. 530, AND REYNOLDS V. UNITED STATES, 125 C.CLS. 108. IN YOUR LETTER OF JUNE 7, 1960, YOU ASSERTED, IN SUBSTANCE, THAT YOUR SERVICE, SUBSEQUENT TO ENLISTMENT IN THE STUDENTS ARMY TRAINING CORPS IN JULY 1918, WAS AS A NONCOMMISSIONED OFFICER IN THE REGULAR ARMY AND AS A SECOND LIEUTENANT, AFTER HAVING BEEN COMMISSIONED ON SEPTEMBER 16, 1918, IN THE UNITED STATES ARMY, AND, FURTHER, THAT WHEN YOU APPEARED BEFORE A BOARD OF OFFICERS AT CAMP GRANT, ILLINOIS, ON FEBRUARY 18, 1919, YOU WERE SELECTED FOR RETENTION AS A REGULAR OFFICER. ALSO, YOU HAVE CITED THE COURT OF CLAIMS CASES OF LOWELL V. UNITED STATES, 158 F.SUPP. 704 (141 C.CLS. 111) AND TRACY V. UNITED STATES, 142 F.SUPP. 943 (136 C.CLS. 211) AND REQUESTED RECONSIDERATION OF YOUR CLAIM UNDER THE TENOR OF THOSE CASES, AND UPON THE DETERMINATION OF YOUR STATUS AS A REGULAR OFFICER PRIOR TO NOVEMBER 11 (12), 1918.

FROM THE CONTENTS OF YOUR SEVERAL LETTERS ADDRESSED TO THIS OFFICE DURING THE YEAR 1959, IT APPEARS THAT YOU ARE AWARE OF THE HOLDINGS IN THE BERRY AND REYNOLDS CASES THAT CONGRESS INTENDED THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO BE APPLICABLE ONLY TO OFFICERS OF THE REGULAR COMPONENTS OF THE SERVICES MENTIONED IN THE TITLE OF THE ACT. THE TWO NAVAL OFFICERS INVOLVED IN THOSE CASES HAD ENTERED ON ACTIVE DUTY IN THE REGULAR NAVY PRIOR TO NOVEMBER 12, 1918, AFTER GRADUATION FROM THE UNITED STATES NAVAL ACADEMY. BOTH OFFICERS SUBSEQUENTLY RESIGNED FROM THE REGULAR NAVY AND WERE COMMISSIONED IN THE NAVAL RESERVE. BOTH WERE RETIRED, NOT FOR DISABILITY, AS RESERVE OFFICERS 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. THEIR CLAIMS FOR BENEFITS UNDER THE ABOVE-MENTIONED FOURTH PARAGRAPH WERE DENIED BY THE COURT OF CLAIMS BECAUSE THEY WERE RESERVISTS AT THE DATE OF RETIREMENT, IRRESPECTIVE OF THE FACT THAT PRIOR TO NOVEMBER 12, 1918, THEY HAD SERVED AS OFFICERS OF THE REGULAR NAVY.

IN THE CASES OF LOWELL V. UNITED STATES AND TRACY V. UNITED STATES,ON WHICH YOU RELY, THE COURT OF CLAIMS HELD THAT EACH OF THE PLAINTIFFS, WHO HAD SERVICE PRIOR TO NOVEMBER 12, 1918, AND WHO WAS RETIRED FOR DISABILITY, AS A RESERVE OFFICER, WAS ENTITLED UNDER THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820 (ASSIMILATING DISABILITY RETIRED PAY BENEFITS OF RESERVE OFFICERS TO THOSE OF REGULAR OFFICERS), AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, TO DISABILITY PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE PAY OF HIS PERMANENT RESERVE GRADE. AS IT IS APPARENT THAT YOU WERE NOT RETIRED ON ACCOUNT OF DISABILITY, THE HOLDINGS IN THOSE TWO COURT CASES ARE NOT FOR APPLICATION IN CONNECTION WITH YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT ACTION OF JULY 28, 1959, WAS CORRECT AND IS SUSTAINED.

WE MAY ADD, FOR YOUR INFORMATION, THAT THE PENDING COURT OF CLAIMS CASES REFERRED TO BY YOU APPEAR TO BE PAUL V. BARNES, ET AL. V. UNITED STATES, C.CLS.NO. 236-59; WILLIAM H. ABRAMS, ET AL. V. UNITED STATES, C.CLS. NO. 237-59; AND JOHN C. ABBOTT, ET AL. V UNITED STATES, C.CLS. NO. 235-59.