B-150858, APR. 15, 1963

B-150858, APR. 15, 1963

TO CAPTAIN HARRY J. NIEMANN, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1963, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION UNDER DATE OF FEBRUARY 1, 1963, IN DISALLOWING YOUR CLAIN FOR ADJUSTMENT IN RETIRED PAY BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368.

THE RECORD SHOWS THAT YOU SERVED AS A MASTER SERGEANT IN THE REGULAR ARMY UNTIL NOVEMBER 30, 1948, ON WHICH DATE YOU WERE PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE ENLISTED RESERVE CORPS PURSUANT TO THE FOLLOWING PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, CH. 393, 59 STAT. 539, AS AMENDED BY SECTION 6 OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 995 (NOW CODIFIED IN 10 U.S.C. 3914 AND 3991):

"SEC. 4. WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED A MINIMUM OF TWENTY BUT LESS THAN THIRTY YEARS OF ACTIVE FEDERAL SERVICE, HE MAY, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, UPON HIS OWN REQUEST BE TRANSFERRED TO THE THE ENLISTED RESERVE CORPS AND THEREUPON WILL BE PLACED ON THE RETIRED LIST OF THE REGULAR ARMY. AN ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE, EXCEPT WHEN ON ACTIVE DUTY, MONTHLY RETIRED PAY AT THE RATE OF 2-1/2 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE ENLISTED GRADE HELD AT THE TIME HE MADE APPLICATION FOR RETIREMENT MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE, NOT TO EXCEED THIRTY YEARS.'

SIMULTANEOUSLY WITH YOUR RETIREMENT, BUT AS A SEPARATE TRANSACTION, YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT UNDER THE PROVISIONS OF THE ACT OF MAY 7, 1932, CH. 171, 47 STAT. 150, WHICH WAS AN HONORARY PROMOTION ONLY, AS THAT ACT PROVIDED "THAT NO INCREASE IN ACTIVE OR RETIRED PAY OR ALLOWANCES SHALL RESULT FROM THE PASSAGE OF THIS ACT.' BY REASON OF YOUR COMMISSIONED SERVICE IN WORLD WAR I, HOWEVER, YOU WERE ENTITLED TO RECEIVE THE RETIRED PAY OF A RETIRED WARRANT OFFICER UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF JUNE 6, 1924, CH. 275, 43 STAT. 472, AS AMENDED, 10 U.S.C. 981 (1952 ED.), AND YOU STATE THAT YOU WERE SO PAID. THAT SECTION PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 8. THAT RETIRED ENLISTED MEN OF THE ARMY HERETOFORE OR HEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, SHALL BE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY; * * * PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.'

UNDER SECTION 513 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 830, ENLISTED PERSONS AND WARRANT OFFICERS WHO HAD SERVED IN WORLD WAR I WERE AUTHORIZED TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST FEDERALLY RECOGNIZED RANK OR GRADE SATISFACTORILY HELD BY SUCH ENLISTED PERSON OR WARRANT OFFICER UNDER A PERMANENT OR TEMPORARY APPOINTMENT FOR ANY PERIOD BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND TO RECEIVE RETIRED PAY COMPUTED ON THE BASIS OF SUCH OFFICER RANK OR GRADE IF NOT ENTITLED OTHERWISE TO A HIGHER GRADE. YOU STATE THAT EFFECTIVE IN OCTOBER 1949 YOUR RETIRED PAY WAS INCREASED TO A RATE COMPUTED ON THE GRADE OF SECOND LIEUTENANT.

YOU INDICATE THAT IN JANUARY 1948 YOU ACCEPTED AN APPOINTMENT AS CAPTAIN IN THE OFFICERS' RESERVE CORPS WHILE SERVING ON ACTIVE DUTY IN THAT GRADE UNDER A TEMPORARY APPOINTMENT AND THAT IN FEBRUARY 1956 YOU WERE ADVANCED TO THE GRADE OF CAPTAIN ON THE RETIRED LIST, THEREAFTER RECEIVING RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN WITH 23 YEARS OF ACTIVE SERVICE. THE ADVANCEMENT TO THE GRADE OF CAPTAIN PRESUMABLY WAS MADE UNDER AUTHORITY OF SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086 (NOW CODIFIED IN 10 U.S.C. 3964 AND 3992). SECTION 203 (E) PROVIDED IN PERTINENT PART AS FOLLOWS:

"EACH ENLISTED MAN OF THE REGULAR ARMY OR REGULAR AIR FORCE HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL UPON THE COMPLETION OF THIRTY YEARS OF SERVICE, TO INCLUDE THE SUM OF HIS ACTIVE SERVICE AND HIS SERVICE ON THE RETIRED LIST, BE ADVANCED TO THE HIGHEST TEMPORARY COMMISSION, WARRANT, OR ENLISTED GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE AT THE TIME OF RETIREMENT BUT BASED UPON SUCH HIGHER TEMPORARY RANK OR GRADE:

ALTHOUGH YOU HAVE RECEIVED RETIRED PAY COMPUTED ON THE PAY OF A WARRANT OFFICER AND A COMMISSIONED OFFICER SINCE YOUR RETIREMENT IN 1948, ALL OF YOUR RIGHTS TO RETIREMENT AND TO RETIRED PAY HAVE BEEN DETERMINED BY LAW ON THE BASIS OF YOUR STATUS AS AN ENLISTED MEMBER OF THE REGULAR ARMY. SUCH STATUS HAS NOT CHANGED.

SINCE YOUR RETIRED PAY IS NOW COMPUTED ON THE GRADE OF CAPTAIN, YOU BELIEVE YOU ARE ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT IN ACCORDANCE WITH THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, WHICH ACT YOU STATE PURPORTS TO EQUALIZE THE PAY ALLOWANCES OF ALL ARMY PERSONNEL OF THE SAME GRADE AND SERVICE, WHETHER REGULAR, RESERVE, OR TEMPORARY.

APPLICATION OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT TO OTHER THAN RETIRED REGULAR OFFICERS HAS BEEN THE SUBJECT OF SEVERAL DECISIONS OF OUR OFFICE AS WELL AS OF THE COURT OF CLAIMS. WE ARE ENCLOSING A COPY OF OUR DECISION OF APRIL 6, 1959, B 109118, REFERRING TO OUR EARLIER DECISION OF SEPTEMBER 18, 1945, 25 COMP. GEN. 274, WHEREIN WE DISCUSSED THE LEGISLATIVE HISTORY OF THE SAID FOURTH PARAGRAPH. ADDITION, THE COURT OF CLAIMS HAS RULED THAT THE FOURTH PARAGRAPH APPLIES ONLY IN CASES OF REGULAR OFFICERS. SEE BERRY V. UNITED STATES, 123 CT.CL. 530, REYNOLDS V. UNITED STATES, 125 CT.CL. 108, AND ABBOTT V. UNITED STATES, CT.CL. NO. 235-59, DECIDED MARCH 1, 1961. ALSO THE COURT OF CLAIMS HAS HELD THAT AN ENLISTED MAN ADVANCED ON THE RETIRED LIST TO AN OFFICER GRADE IS NOT RETIRED AS AN OFFICER WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT. SEE JONES V. UNITED STATES, CT.CL. NO. 300 56, DECIDED OCTOBER 5, 1960. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER.

IN ACCORDANCE WITH YOUR REQUEST, WE AR RETURNING THE COPIES OF YOUR RESERVE APPOINTMENT DATED JANUARY 26, 1948, RETIREMENT ORDER DATED NOVEMBER 23, 1948, AND LETTER OF ADVANCEMENT UNDER SECTION 513, CAREER COMPENSATION ACT, DATED FEBRUARY 10, 1950.