B-161812, SEP. 22, 1967

B-161812, SEP. 22, 1967

ARMED SERVICES - RETIRED PAY - RE-RETIREMENT DECISION TO RETIRED COMMANDER OF NAVY RE CLAIM FOR INCREASED RETIRED PAY UNDER PUBLIC LAW 89-395. NAVY OFFICER WHO DID NOT FILE CLAIM FOR INCREASED RETIRED PAY TO WHICH ENTITLED UNDER PUBLIC LAW 89-395 WITHIN ONE YEAR PERIOD PROVIDED IN LAW MAY NOT HAVE CLAIM ALLOWED SINCE GAO DOES NOT HAVE AUTHORITY TO MAKE EXCEPTIONS TO THE LAW OR TO GRANT EXTENSIONS OF TIME.

TO COMMANDER LEONARD M. DESMOND, USN, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 24, 1967, REQUESTING RECONSIDERATION OF THE ACTION OF OUR CLAIMS DIVISION BY LETTER DATED MAY 19, 1967, DENYING YOUR CLAIM FOR INCREASED RETIRED PAY YOU BELIEVE IS DUE YOU UNDER THE PROVISIONS OF THE ACT OF APRIL 14, 1966, PUB. L. 89-395, 80 STAT. 120.

THE ACT OF APRIL 14, 1966, PROVIDES AS FOLLOWS:

"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: PROVIDED, THAT A CLAIM FOR SUCH RETIRED PAY SHALL BE FILED WITH THE GENERAL ACCOUNTING OFFICE BY EACH SUCH OFFICER OR BY HIS DESIGNATED BENEFICIARY, WITHIN ONE YEAR FOLLOWING THE DATE OF ENACTMENT OF THIS ACT.'

THE SOLE PURPOSE OF THE ACT OF APRIL 14, 1966, WAS TO WAIVE FOR A SPECIFIED PERIOD OF TIME THE PROVISIONS OF THE 10-YEAR BARRING ACT OF OCTOBER 9, 1940, WITH RESPECT TO CERTAIN OFFICERS MEETING THE CRITERIA OUTLINED THEREIN, WHO HAD CLAIMED INCREASED RETIRED PAY UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368, AND THE CASE OF GORDON V. UNITED STATES, 134 CT. CL. 840 (1956/--AND OTHER CASES INTERPRETING THAT PARAGRAPH--AND WHO HAD BEEN DENIED A PORTION OF THE AMOUNT OF INCREASED RETIRED PAY BECAUSE A CLAIM THEREFOR WAS NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THE ACT DID NOT AFFECT OR CHANGE THE SUBSTANTIVE LAW DEALING WITH THE RETIREMENT BENEFITS OF THE OFFICERS CONCERNED OR GRANT ANY NEW OR DIFFERENT RIGHTS, BUT MERELY PROVIDED A LIMITED PERIOD OF TIME WITHIN WHICH THEY MIGHT FILE CLAIM FOR RETIREMENT BENEFITS FOUND DUE THEM WHICH WERE OTHERWISE BARRED BY THE STATUTE OF LIMITATIONS.

IN THE GORDON CASE, THE COURT HELD THAT THE PLAINTIFF, WHO HAD BEEN RETIRED AND RECALLED TO ACTIVE DUTY AND RESUMED INACTIVE STATUS SUBSEQUENT TO THE EFFECTIVE DATE OF THE 1942 ACT, WAS ENTITLED TO BE PAID RETIRED PAY AT THE RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS "RE- RETIREMENT.' THAT IS TO SAY, HE WAS ENTITLED TO CREDIT FOR HIS INACTIVE TIME ON THE RETIRED LIST FOR THE PURPOSE OF COMPUTING THE RATE OF HIS RETIRED PAY UPON HIS RETURN TO A RETIRED STATUS.

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT FOR THE PERIOD DECEMBER 3, 1946, TO SEPTEMBER 30, 1947, YOU WERE PAID RETIRED PAY AT 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH A COMMANDER WITH OVER 12 YEARS OF SERVICE WAS ENTITLED UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, AND THAT SINCE OCTOBER 1, 1947, YOU HAVE BEEN PAID RETIRED PAY ON THE BASIS OF 75 PERCENT OF THE ACTIVE DUTY PAY TO WHICH A COMMANDER WITH OVER 27 YEARS OF SERVICE WAS ENTITLED UNDER THAT ACT, INCLUDING THE PERCENTAGE INCREASES AUTHORIZED BY SUBSEQUENT RETIRED PAY RAISE LEGISLATION. YOUR ACTIVE AND INACTIVE SERVICE, INCLUDING TIME ON THE RETIRED LIST, WAS IN EXCESS OF 27 YEARS. THUS, IT APPEARS THAT YOU WERE ONE OF THE OFFICERS TO WHICH THE ACT OF APRIL 14, 1966, APPLIED, WITH RESPECT TO THE PERIOD PRIOR TO OCTOBER 1, 1947.

UNDER THE PLAIN TERMS OF THE 1966 ACT YOU ARE DENIED THE BENEFIT OF THE WAIVER THERE PROVIDED SINCE IT HAD EXPIRED PRIOR TO THE TIME YOUR CLAIM WAS RECEIVED IN THIS OFFICE. THE ACT SPECIFICALLY PROVIDES ONE YEAR IN WHICH TO FILE CLAIM FOR THE PORTION OF INCREASED RETIRED PAY BARRED BY THE 1940 ACT AND NO MATTER WHAT THE REASON FOR FAILURE TO FILE CLAIM WITHIN THE ALLOTTED TIME MAY BE, THIS OFFICE MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE LAW NOR MAY ANY EXTENSION OF TIME BE GRANTED IN WHICH CLAIMS MAY BE FILED IN THIS OFFICE.