B-161097, MAY 25, 1967

B-161097, MAY 25, 1967

TO ALPHONSE RICARD, CWO, USN, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1967, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF OCTOBER 4, 1966, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY BENEFITS BELIEVED TO BE DUE YOU UNDER PUB.L. 89-395, APPROVED APRIL 14, 1966, 80 STAT. 120.

YOU ASK THAT WE CONSIDER THE POINTS RAISED IN LETTER DATED DECEMBER 1, 1966, WRITTEN IN YOUR BEHALF BY LIEUTENANT (JG) ROBERT M. ROY, JR., LAW SPECIALIST, HEADQUARTERS, FIRST NAVAL DISTRICT, BOSTON,MASSACHUSETTS.

WITH HIS LETTER LIEUTENANT ROY ENCLOSED (1) A COPY OF PUBLIC LAW 89 395; (2) COPY OF ORDER NOTIFYING YOU OF YOUR APPOINTMENT AS CHIEF RADIO ELECTRICIAN FOR TEMPORARY SERVICE EFFECTIVE OCTOBER 1, 1943, AND (3) COPIES OF CORRECTION ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS ON DECEMBER 4, 1961, AS IMPLEMENTED BY THE CHIEF OF NAVAL PERSONNEL ON JANUARY 24, 1962, CORRECTING YOUR RECORDS TO SHOW THAT YOU DID NOT REVERT TO YOUR FORMER ENLISTED STATUS ON JULY 31, 1948, BUT CONTINUED ON THE RETIRED LIST IN THE HIGHEST RANK IN WHICH YOU SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE NAVY. LIEUTENANT ROY SAYS THAT AS A RESULT OF THE ACTION TAKEN BY THE CORRECTION BOARD YOU NEVER DID REVERT TO YOUR FORMER ENLISTED STATUS, AND THAT YOU ARE NOT CLAIMING BENEFITS UNDER A NEW OR DIFFERENT RIGHT, BUT THAT YOUR CLAIM IS MADE PURSUANT TO EXISTING SUBSTANTIVE LAW.

THE RECORD SHOWS THAT YOU ENLISTED IN THE NAVAL SERVICE ON DECEMBER 20, 1910; THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON FEBRUARY 15, 1927, AND WERE RETAINED ON ACTIVE DUTY UNTIL OCTOBER 10, 1927; AND THAT YOU RETIRED AS AN ENLISTED MAN ON AUGUST 1, 1940. IT ALSO APPEARS FROM THE RECORD FURNISHED THIS OFFICE THAT YOU WERE RECALLED TO ACTIVE DUTY AS AN ENLISTED MAN ON DECEMBER 11, 1941; THAT YOU WERE APPOINTED TEMPORARY CHIEF RADIO ELECTRICIAN EFFECTIVE OCTOBER 1, 1943; AND THAT YOUR TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER TERMINATED ON OCTOBER 13, 1945, THE DATE OF YOUR RELEASE FROM ACTIVE DUTY, WHEN YOU REVERTED TO YOUR RETIRED ENLISTED STATUS.

ON MAY 13, 1946, YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF COMMISSIONED WARRANT OFFICER (CHIEF RADIO ELECTRICIAN), THE HIGHEST TEMPORARY GRADE IN WHICH YOU SERVED SATISFACTORILY, EFFECTIVE AS OF OCTOBER 14, 1945, THE DAY FOLLOWING YOUR RELEASE FROM ACTIVE DUTY, 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. SEE REGISTER OF RETIRED COMMISSIONED AND WARRANT OFFICERS, REGULAR AND RESERVE, OF THE UNITED STATES NAVY AND MARINE CORPS, JULY 1, 1966 (AT PAGE 360). THE RECORD FURTHER SHOWS THAT YOUR APPLICATION TO BE RESTORED TO YOUR FORMER ENLISTED STATUS WAS APPROVED BY THE SECRETARY OF THE NAVY ON JULY 31, 1948.

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, AND WHO MET THE THREE SPECIFIC CONDITIONS PRESCRIBED IN PUBLIC LAW 89 395. THE ACTION TAKEN BY THE CORRECTION BOARD ON DECEMBER 4, 1961, CORRECTING YOUR RECORDS TO SHOW THAT YOU DID NOT REVERT TO YOUR FORMER ENLISTED STATUS ON JULY 31, 1948, BUT CONTINUED ON THE RETIRED LIST ON THE HIGHEST RANK (COMMISSIONED WARRANT OFFICER) AS DETERMINED BY THE SECRETARY OF THE NAVY, DID NOT CHANGE THE FACT THAT YOU RETIRED AS AN ENLISTED MAN (ON AUGUST 1, 1940) AND THAT FOLLOWING A PERIOD OF ACTIVE DUTY YOU REVERTED TO THAT STATUS ON OCTOBER 14, 1945. YOUR SUBSEQUENT ADVANCEMENT ON THE RETIRED LIST TO COMMISSIONED WARRANT OFFICER GRADE TOOK PLACE AFTER YOU REVERTED TO YOUR ENLISTED STATUS ON THE RETIRED LIST.

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 THAT CASE, THE COURT CONCLUDED THAT SINCE THE PLAINTIFF COULD NOT HAVE RETIRED AS AN OFFICER UNDER THE PROVISIONS OF THE APPLICABLE STATUTE, HE COULD NOT QUALIFY FOR RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH, SECTION 15, OF THE PAY READJUSTMENT ACT OF 1942. SEE ENCLOSED COPY OF OUR DECISION OF SEPTEMBER 1, 1966, B-139914, WHICH QUOTES PERTINENT PARTS OF THE COURT'S DECISION IN THE JONES CASE. YOUR RETIRED PAY STATUS FALLS SQUARELY WITHIN THE RULE OF THE JONES DECISION.