B-74057, NOV. 18, 1966

B-74057, NOV. 18, 1966

TO CAPTAIN CLINTON J. ANCKER, SR., USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 7, 1966, CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY FOLLOWING YOUR RETIREMENT FROM THE UNITED STATES ARMY IN 1934.

YOU STATE THAT YOU WERE RETIRED IN THE RANK OF CAPTAIN AND RECEIVED RETIRED PAY IN THAT RANK. HOWEVER, YOU CONTEND THAT YOU HAD BEEN RECEIVING ACTIVE DUTY PAY BASED ON FIELD GRADE (0-4) AT THE TIME OF YOUR RETIREMENT AND SHOULD BE ENTITLED TO RETIRED PAY BASED ON THAT RATE OF PAY. YOU ALSO STATE THAT AT THE TIME OF YOUR RETIREMENT, IT WAS IMPLIEDLY AGREED THAT YOU SHOULD RECEIVE RETIRED PAY AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY THEN PAYABLE OR AS MIGHT BE PRESCRIBED IN THE FUTURE, BUT THAT YOU ACTUALLY RECEIVED LESS THAN THIS PERCENTAGE AS SUBSEQUENT LEGISLATION FAILED TO LIVE UP TO THAT AGREEMENT. YOU THEREFORE CONTEND THAT SUCH LEGISLATION WAS A BREACH OF THE AGREEMENT BETWEEN YOURSELF AND THE UNITED STATES ARMY, AN IMPAIRMENT OF YOUR RIGHTS AND UNCONSTITUTIONAL.

OUR RECORDS SHOW THAT YOU WERE RETIRED FROM THE REGULAR ARMY ON OCTOBER 1, 1934, FOR DISABILITY INCURRED IN LINE OF DUTY, IN THE RANK OF CAPTAIN HAVING SERVED 20 YEARS, 0 MONTHS AND 16 DAYS' ACTIVE DUTY. THAT PERIOD WAS SUBSEQUENTLY CORRECTED TO SHOW 20 YEARS, 0 MONTHS AND 17 DAYS' ACTIVE DUTY AND YOU LATER WERE CREDITED WITH 26 YEARS, 5 MONTHS AND 25 DAYS FOR LONGEVITY PURPOSES BASED ON YOUR NATIONAL GUARD SERVICE PRIOR TO OCTOBER 15, 1910.

YOUR ATTENTION IS INVITED TO THE FACT THAT AT THE TIME OF YOUR RETIREMENT THE PAY OF A CAPTAIN WITH OVER 17 YEARS OF SERVICE AND THAT OF A MAJOR WITH THE SAME YEARS OF SERVICE (BUT LESS THAN 23) WAS THE SAME. BOTH RECEIVED THE PAY OF THE FOURTH PERIOD. SEE SECTION 1 OF THE ACT OF JUNE 10, 1922, CH. 212, 42 STAT. 625, AS AMENDED, 37 U.S.C. 1 (1934 ED). YOUR RETIRED PAY WAS COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY YOU WERE RECEIVING AT THAT TIME.

IN YOUR SUIT AGAINST THE UNITED STATES IN THE COURT OF CLAIMS (PETITION NO. 48845, FILED SEPTEMBER 13, 1948) FOR RETIRED PAY WITHHELD UNDER SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (1946 ED), YOU ALLEGED THAT THE RETIRED PAY YOU HAD BEEN RECEIVING AT THE RATE OF $268.13 PER MONTH WAS BEING WRONGFULLY WITHHELD FROM YOU. THAT RATE WAS 75 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 18 BUT LESS THAN 21 YEARS OF SERVICE (FOURTH PAY PERIOD). SUBSEQUENTLY, THE ARMY DETERMINED THAT YOUR NATIONAL GUARD SERVICE WAS CREDITABLE FOR LONGEVITY PURPOSES AND OUR SETTLEMENT OF FEBRUARY 26, 1957, ALLOWED YOU RETIRED PAY FOR THE PERIOD OCTOBER 1, 1951, TO DECEMBER 31, 1956, COMPUTED AT THE RATE OF 75 PERCENT OF THE PAY OF AN OFFICER ENTITLED TO THE PAY OF THE FOURTH PERIOD, WITH OVER 24 YEARS OF SERVICE, BASED ON THE RATE PRESCRIBED IN SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942 AS AMENDED BY THE ACT OF JUNE 29, 1946, CH. 523, 60 STAT. 343, INCLUDING THE PERCENTAGE INCREASES AUTHORIZED BY SUBSEQUENT RETIRED PAY INCREASE LEGISLATION ENACTED IN 1952 AND 1955. IN VIEW OF SUCH SETTLEMENT, IT IS ASSUMED THAT YOUR RETIRED PAY HAS BEEN SIMILARLY COMPUTED SINCE THAT TIME AND INCLUDES THE PERCENTAGE RETIRED PAY RAISES AUTHORIZED BY THE RETIRED PAY RAISE LAWS ENACTED IN 1958, 1963 AND 1965.

AS TO YOUR CONTENTION THAT LEGISLATION AFTER YOUR RETIREMENT WAS IN VIOLATION OF AN IMPLIED AGREEMENT WITH RESPECT TO COMPUTATION OF RETIRED PAY ON ACTIVE DUTY PAY RATES WHICH MIGHT SUBSEQUENTLY BE PRESCRIBED, WE DIRECT YOUR ATTENTION TO SEVERAL CASES RECENTLY DECIDED BY THE COURT OF CLAIMS IN WHICH IT WAS HELD THAT A RETIRED MEMBER'S ENTITLEMENT TO PAY OR RETIRED PAY IS DEPENDENT UPON STATUTORY RIGHT AND NOT UPON COMMON LAW RULES GOVERNING PRIVATE CONTRACTS. SEE CHARLES L. ANDREWS, JR., ET AL. V. UNITED STATES, CT.CL. NO. 163-64, DECIDED MAY 13, 1966. THERE IS NO CONSTITUTIONAL INHIBITION AGAINST A CHANGE IN THE METHOD OF COMPUTING FUTURE INCREASES IN RETIRED PAY.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO BASIS FOR ALLOWING YOU ADDITIONAL RETIRED PAY.