B-157378, OCT. 1, 1965

B-157378, OCT. 1, 1965

TO LIEUTENANT COMMANDER ABRAHAM M. ROSENBERG, USN, RETIRED:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 13, 1965, WRITTEN IN YOUR BEHALF, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED MARCH 3, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN 75 PERCENT OF THE ACTIVE DUTY PAY FOR THE GRADE OF LIEUTENANT COMMANDER WITH OVER 30 YEARS OF SERVICE AND 75 PERCENT OF THE ACTIVE DUTY PAY FOR THE GRADE OF LIEUTENANT WITH OVER 30 YEARS OF SERVICE FROM APRIL 21, 1946.

THE RECORD SHOWS THAT YOU ENLISTED IN THE U.S. NAVY ON APRIL 7, 1904; THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE AND RELEASED TO INACTIVE DUTY ON DECEMBER 1, 1921; AND THAT EFFECTIVE JULY 1, 1934, YOU WERE PLACED ON THE RETIRED LIST BY REASON OF COMPLETION OF 30 YEARS OF SERVICE AND ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT (JG), THE HIGHEST GRADE IN WHICH YOU HAD SERVED SATISFACTORILY DURING WORLD WAR I. YOU WERE CALLED TO ACTIVE DUTY JULY 24, 1941, AND SERVED UNTIL APRIL 20, 1946, WHEN, AS THE RESULT OF PROCEEDINGS AND FINDINGS OF A NAVAL RETIRING BOARD APPROVED BY THE PRESIDENT OF THE UNITED STATES, YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT PURSUANT TO THE PROVISIONS OF 34 U.S.C. 350G (B) (1940 ED.) CODIFYING SECTION 8 (B) OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 604, AS FOLLOWS:

"/B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.'

UNDER THE SAME PROVISIONS OF LAW YOUR STATUS ON THE RETIRED LIST WAS CHANGED TO THAT OF RETIREMENT FOR PHYSICAL DISABILITY.

THE RECORD FURTHER SHOWS THAT AT THE TIME OF YOUR RELEASE TO INACTIVE DUTY ON APRIL 20, 1946, YOU WERE RECEIVING THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS OF SERVICE, TO WHICH GRADE YOU HAD BEEN TEMPORARILY APPOINTED, AND BY LETTER OF DECEMBER 24, 1946, THE SECRETARY OF THE NAVY, HAVING DETERMINED THAT SUCH GRADE AND RANK WAS THE HIGHEST IN WHICH YOU SATISFACTORILY SERVED DURING WORLD WAR II, ADVISED THAT YOU WERE THEREFORE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER FROM THE DATE OF YOUR RETIREMENT PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8/A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28, WHICH PROVIDES AS FOLLOWS:

"PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.'

IT IS REPORTED THAT YOU HAVE COMPLETED 22 YEARS, 1 MONTH AND 15 DAYS OF ACTIVE SERVICE AND 19 YEARS, 7 MONTHS AND 22 DAYS OF INACTIVE SERVICE IN THE FLEET RESERVE AND ON THE RETIRED LIST, A TOTAL OF 41 YEARS, 9 MONTHS AND 7 DAYS. YOUR RETIRED PAY SINCE APRIL 21, 1946, HAS BEEN COMPUTED AND PAID AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT (THE RANK IN WHICH YOU WERE SERVING AT THE TIME YOU INCURRED A PHYSICAL DISABILITY) WITH OVER 30 YEARS OF SERVICE, AS AUTHORIZED BY SECTION 8 (B) OF THE 1941 ACT, SINCE THAT PAY IS GREATER THAN RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 21 YEARS OF SERVICE, THE RATE OF RETIRED PAY TO WHICH YOU WOULD BE ENTITLED UNDER SECTION 10 EXCEPT FOR YOUR RETIREMENT UNDER THE PROVISIONS OF SECTION 8.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 3, 1961, FOR THE REASON THAT THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, BY ITS EXPRESS TERMS APPLIES ONLY IN CASES OF RETIRED OFFICERS AND SINCE YOU RETIRED AS AN ENLISTED MAN IT PROVIDES NO BASIS FOR INCREASING YOUR RETIRED PAY. IS CONTENDED THAT YOUR RELEASE FROM ACTIVE DUTY AFTER ATTAINING THE RANK OF LIEUTENANT COMMANDER WAS A RE-RETIREMENT WITHIN THE MEANING OF THE PAY READJUSTMENT ACT OF 1942 AND THAT AS AN OFFICER RETIRED AFTER THE EFFECTIVE DATE OF THAT ACT YOU ARE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE DUTY PAY RECEIVED BY YOU AT THE TIME OF YOUR LAST RETIREMENT UNDER THE RULE FOLLOWED BY THE COURT OF CLAIMS IN CARROLL V. UNITED STATES, 117 CT.CL. 53 (1948), DANIELSON V. UNITED STATES, 121 CT.CL. 533 (1952) AND SHERFEY V. UNITED STATES, 141 CT.CL. 307 (1958).

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

THE UNITED STATES COURT OF CLAIMS HAS FORMULATED THE RULE THAT THIS PROVISION IS APPLICABLE TO A PERSON WHO HAS "RE-RETIRED" AS AN OFFICER SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE.

YOU WERE ORIGINALLY RETIRED AS AN ENLISTED MAN AND EXCEPT FOR THE INCURRENCE OF PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY LIEUTENANT YOUR CASE WOULD HAVE FALLEN WITHIN THE PROVISIONS OF SECTION 10/A) OF THE 1941 ACT, AS AMENDED, AND THE RULE OF THE CASE OF JONES V. UNITED STATES, 151 CT.CL. 119 (1960). YOUR TEMPORARY APPOINTMENT WOULD HAVE BEEN TERMINATED, YOU WOULD HAVE BEEN RETURNED TO THE RETIRED LIST IN YOUR PERMANENT ENLISTED GRADE AND YOU WOULD THEREAFTER HAVE BEEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COMMANDER WITHOUT "RE-RETIREMENT" RECOMPUTATION RIGHTS UNDER THE 1942 ACT. YOU WERE GRANTED PHYSICAL DISABILITY RETIREMENTS BENEFITS AS A LIEUTENANT UNDER THE PROVISIONS OF SECTION 8 (B) OF THE 1941 ACT AND THEREAFTER WERE ADVANCED TO THE GRADE OF LIEUTENANT COMMANDER UNDER THE PROVISIONS OF SECTION 10/A). YOU HAVE BEEN PAID RETIRED PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8/B). THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 IS NOT A RETIREMENT STATUTE AND IT DOES NOT PURPORT TO AMEND SECTION 8 OF THE 1941 ACT. IT CANNOT BE ARGUED THAT SECTION 8 GIVES YOU THE STATUS OF A RETIRED OFFICER (LIEUTENANT) WHILE AT THE SAME TIME CONTENDING THAT YOU ARE A RETIRED LIEUTENANT COMMANDER. IS THE LAW UNDER WHICH A MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED PAY WHICH GOVERNS HIS "RETIRED" STATUS AND FIXES HIS RIGHTS. IF YOUR CLAIM IS BASED IN ANY WAY ON SECTION 8, YOU ARE LIMITED TO THE BENEFITS THERE PROVIDED. IF YOUR CLAIM IS NOT SO BASED, YOUR RIGHTS ARE GOVERNED BY THE JONES CASE.

ACCORDINGLY, YOU WERE ENTITLED TO ONE OR THE OTHER OF THE BENEFITS PROVIDED BY THE 1941 ACT. YOU COULD HAVE THE RETIRED PAY WHICH HAS BEEN PAID TO YOU COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY WHICH YOU WERE RECEIVING WHILE SERVING AS A LIEUTENANT PURSUANT TO SECTION 8/B) WITH CREDIT FOR INACTIVE SERVICE IN THE FLEET RESERVE, OR, AS A RETIRED ENLISTED MAN ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COMMANDER PURSUANT TO SECTION 10/A), YOU COULD HAVE HAD RETIRED PAY COMPUTED ON THAT GRADE BUT WITHOUT CREDIT FOR INACTIVE SERVICE IN THE FLEET RESERVE. SINCE THE AMOUNT OF RETIRED PAY YOU HAVE RECEIVED COMPUTED ON THE GRADE OF LIEUTENANT EXCEEDS THE AMOUNT OF RETIRED PAY YOU WOULD BE ENTITLED TO RECEIVE BASED ON THE GRADE OF LIEUTENANT COMMANDER NO BALANCE IS DUE YOU FROM THE UNITED STATES.

ACCORDINGLY THE ACTION TAKEN IN SETTLEMENT OF MARCH 3, 1961, IS SUSTAINED.