B-161026, APR. 10, 1967

B-161026, APR. 10, 1967

TO MR. ATTILIO PAGLIARO, CWO, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1967, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED JUNE 21, 1966, DENYING YOUR CLAIM FOR INCREASED RETIRED PAY BENEFITS SOUGHT BY YOU UNDER PUB.L. 89-395, APRIL 14, 1966, 80 STAT. 120. YOUR CLAIM WAS DENIED FOR THE REASON THAT YOU WERE NOT RETIRED PRIOR TO JUNE 1, 1942.

YOU ENCLOSED WITH YOUR LETTER A CLIPPING (IDENTIFIED BY YOU AS FROM THE RETIRED OFFICER MAGAZINE) RELATING TO DECISION OF DECEMBER 23, 1966, B- 160093, IN THE CASE OF A RETIRED REGULAR ARMY NURSE AND YOU STATE THAT YOU BELIEVE YOU ARE "IN THE SAME STATUS AS THIS NURSE" AND THAT YOU DO NOT "SEE ANY REFERENCE TO RETIREMENT PRIOR TO 1942 IN THE COMPTROLLER'S DECISION.'

THE ACT OF APRIL 14, 1966, PUB.L. 89-395, PROVIDES:

"THAT THE LIMITATION OF TIME PRESCRIBED BY THE ACT OF OCTOBER 9, 1940 (54 STAT. 1061; 31 U.S.C. 237), IS HEREBY WAIVED WITH RESPECT TO CLAIMS FOR INCREASED RETIRED PAY BY ANY RETIRED OFFICER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE, IF (1) HE SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918; (2) HE WAS RETIRED UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1, 1942, AND WAS SUBSEQUENTLY CALLED TO ACTIVE DUTY; AND (3) HE WAS RETURNED TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942 * * *.'

THE SOLE PURPOSE UNDERLYING ENACTMENT OF PUBLIC LAW 89-395, WAS TO EXTEND THE BENEFITS OF HIGHER RETIRED PAY PAYABLE UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, TO THOSE OFFICERS RETIRED BEFORE JUNE 1, 1942, WHOSE CLAIMS FOR SUCH HIGHER RETIRED PAY HAVE BEEN BARRED, IN WHOLE OR IN PART, BY THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, AND WHO MEET THE THREE SPECIFIC CONDITIONS PRESCRIBED IN PUBLIC LAW 89-395. THESE CONDITIONS ARE (1) SERVICE IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, (2) RETIREMENT UNDER ANY PROVISION OF LAW PRIOR TO JUNE 1, 1942, AND SUBSEQUENT CALL TO ACTIVE DUTY, AND (3) RETURN TO AN INACTIVE STATUS ON A RETIRED LIST AFTER MAY 31, 1942. WHILE IT SEEMS CLEAR THAT YOU HAVE NOT MET ALL OF THESE CONDITIONS, IT APPEARS UNNECESSARY TO CONSIDER THIS MATTER FURTHER, SINCE YOU WERE RETIRED AS AN ENLISTED MAN. THE RETIRED PAY BENEFITS PROVIDED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT ARE PAYABLE ONLY TO A MEMBER WHO IS RETIRED AS AN ,OFFICER.'

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON SEPTEMBER 9, 1933, WITH ACTIVE SERVICE AS AN ENLISTED MEMBER OF THE NAVY PREDATING NOVEMBER 12, 1918. YOU AGAIN SERVED ON ACTIVE DUTY FROM JANUARY 31, 1941, TO FEBRUARY 24, 1946, INCLUSIVE, REVERTING TO AN INACTIVE STATUS IN YOUR ENLISTED RATING IN THE FLEET RESERVE ON FEBRUARY 25, 1946. YOU WERE PLACED ON THE RETIRED LIST OF THE NAVY IN YOUR ENLISTED STATUS ON MAY 1, 1947, AND ON MAY 20, 1947, YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER, THE HIGHEST TEMPORARY GRADE IN WHICH YOU SERVED SATISFACTORILY, EFFECTIVE AS OF MAY 1, 1947, AS PROVIDED BY THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 603, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 26-29, 34 U.S.C. 350I (1946 ED.). THUS, IT IS CLEAR THAT YOU WERE NOT RETIRED AS AN OFFICER BUT AS AN ENLISTED MAN AND THEN ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER.

IN JONES V. UNITED STATES, 151 CT.CL. 119 (1960), THE COURT HAD FOR CONSIDERATION A FACTUAL SITUATION VERY SIMILAR TO YOURS. JONES WAS RETIRED AS AN ENLISTED MEMBER AND ADVANCED ON THE RETIRED LIST UNDER THE 1941 LAW, AS AMENDED, TO THE GRADE OF LIEUTENANT COMMANDER. IN PERTINENT PART THE COURT STATED:

"WE MUST DISAGREE, HOWEVER, WITH THE PLAINTIFF'S (JONES-) SUGGESTION THAT HE WAS RE-RETIRED AS AN OFFICER AND IS THEREFORE ENTITLED TO THE RETIRED PAY RATE OF PARAGRAPH 4, SECTION 15. THE SINE QUA NON OF THE BENEFITS OF THAT PORTION OF THE 1942 ACT IS RETIREMENT AS AN OFFICER SINCE THE STATUTE SPEAKS OF OFFICERS "HEREAFTER RETIRED.'

"THE LANGUAGE OF THE STATUTE * * * (34 U.S.C. 350I, 1946 ED.) REVEALS THREE SEPARATE EFFECTS FLOWING THEREFROM. FIRST, UNDER NO CIRCUMSTANCES CAN A TEMPORARY PROMOTION * * * PERSIST BEYOND THE FINAL DAY OF HIS ACTIVE DUTY. NEXT, UPON THE TERMINATION OF THE TEMPORARY APPOINTMENT, THE SERVICE MEMBER RESUMES HIS PERMANENT STATUS IF ACTIVE, OR IS RETURNED TO THE RETIRED OR INACTIVE STATUS PREVIOUSLY HELD. FINALLY, HIS PAY, WHEN HE IS PLACED ON OR RETURNED TO THE RETIRED LIST, WILL BE BASED ON THE HIGHEST RANK HELD, IF THE SECRETARY OF THE NAVY DEEMS THAT HE HAS SERVED SATISFACTORILY IN THAT RANK.

"SINCE PLAINTIFF'S TEMPORARY OFFICER APPOINTMENT TERMINATED BY OPERATION OF LAW ON THE LAST DAY OF HIS ACTIVE SERVICE, HE THEN REVERTED TO THE ONLY OTHER MILITARY STATUS HE HAD * * * IN OTHER WORDS, AN ENLISTED MAN. HIS ADVANCEMENT TO AND CLASSIFICATION AS A LIEUTENANT COMMANDER ON THE RETIRED LIST WAS A SEPARATE TRANSACTION OCCURRING ONLY BECAUSE OF THE STATUTORY ALLOWANCE THAT HE WOULD HAVE, AFTER RESUMING INACTIVE STATUS, THE HIGHEST TEMPORARY ACTIVE RANK HELD.

"* * * MOREOVER, THE STATUTES REQUIRED THAT HE BE RETURNED TO INACTIVE STATUS AS AN ENLISTED MAN, AND THEN BE AWARDED THE HIGHER OFFICER RANK.

"THUS, WE SEE THAT THE ONLY POSSIBLE INTERPRETATION OF THE FACTS BEFORE US IS THAT PLAINTIFF WAS RE-RETIRED AS AN ENLISTED MAN AND THEN ADVANCED TO OFFICER STATUS ON THE RETIRED LIST IN RECOGNITION OF HIS TEMPORARY ACTIVE SERVICE AS AN OFFICER.

"SINCE THE PLAINTIFF COULD NOT HAVE RETIRED AS AN OFFICER UNDER THE PROVISIONS OF THE APPLICABLE STATUTE, HE CANNOT QUALIFY FOR RETIRED PAY PURSUANT TO PARAGRAPH 4, SECTION 15, OF THE PAY READJUSTMENT ACT OF 1942, AND, ACCORDINGLY, RECOVERY MUST BE DENIED.'

YOUR RETIRED PAY STATUS FALLS SQUARELY WITHIN THE RULE OF THE JONES DECISION. SINCE YOU ARE NOT ELIGIBLE FOR THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THE PROVISIONS OF PUBLIC LAW 89-395 WAIVING THE 10-YEAR BARRING ACT HAVE NO EFFECT ON YOUR RETIRED PAY STATUS.

THE DECISION OF DECEMBER 23, 1966, B-160093, TO WHICH YOU MAKE SPECIFIC REFERENCE HAS NO APPLICATION IN YOUR CASE SINCE PUBLIC LAW 89 395 WAS NOT THERE INVOLVED AND, TO THE EXTENT THAT SECTION 15 OF THE 1942 ACT WAS APPLICABLE, IT IS CLEAR THAT MAJOR HUHNER (THE RETIRED OFFICER THERE CONCERNED) "RETIRED AS AN OFFICER OF THE REGULAR ARMY,NURSE CORPS.'