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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF JULY 31. A MOTION TO DISMISS PLAINTIFF'S CLAIM UNDER PETITION NO. 240-58 IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE PENDING SETTLEMENT OF THE MATTER BY THIS OFFICE. YOU WERE ADVISED IN DECISION TO YOU OF JUNE 9. THAT COMMANDER RAYMOND WAS NOT ENTITLED TO AN INCREASE IN HIS RETIRED PAY UNDER THE "RE-RETIREMENT" RULE OF THE GORDON. ARE NOT APPLICABLE TO ANY OFFICER OF THE NAVAL RESERVE WHERE THE DISABILITY FOR WHICH SUCH OFFICER WAS PLACED ON THE RETIRED LIST WAS INCURRED PRIOR TO SEPTEMBER 8. YOU WERE ALSO ADVISED IN THE DECISION OF JUNE 9. UNDER THE DECISION IN THE PHELAN CASE RETIRED PAY IS AUTHORIZED TO BE COMPUTED EFFECTIVE FROM OCTOBER 1.

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B-136453, NOV. 3, 1959

TO MR. FRANZ O. WILLENBUCHER, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1959, REQUESTING ON BEHALF OF COMMANDER ROBERT S. RAYMOND, UNITED STATES NAVAL RESERVE, RETIRED, THAT WE GIVE FURTHER CONSIDERATION TO HIS CLAIM FOR ADDITIONAL RETIRED PAY ON THE BASIS OF THE RULE ESTABLISHED IN THE DECISION RENDERED ON JUNE 3, 1959, IN THE CASE OF PHELAN V. UNITED STATES, C.CLS. NO. 50-57. A MOTION TO DISMISS PLAINTIFF'S CLAIM UNDER PETITION NO. 240-58 IS BEING HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE PENDING SETTLEMENT OF THE MATTER BY THIS OFFICE.

YOU WERE ADVISED IN DECISION TO YOU OF JUNE 9, 1959, B-136453, THAT COMMANDER RAYMOND WAS NOT ENTITLED TO AN INCREASE IN HIS RETIRED PAY UNDER THE "RE-RETIREMENT" RULE OF THE GORDON, FIELD AND SHERFEY CASES FOR ANY PART OF THE PERIOD PRECEDING OCTOBER 1, 1949, NOT OTHERWISE BARRED BY THE PROVISIONS OF 31 U.S.C. 71A, 237, FOR THE REASON THAT THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, ARE NOT APPLICABLE TO ANY OFFICER OF THE NAVAL RESERVE WHERE THE DISABILITY FOR WHICH SUCH OFFICER WAS PLACED ON THE RETIRED LIST WAS INCURRED PRIOR TO SEPTEMBER 8, 1939. SEE SECTION 4, ACT OF AUGUST 27, 1940, 54 STAT. 864, AS AMENDED BY THE ACT OF OCTOBER 10, 1942, 56 STAT. 780. YOU WERE ALSO ADVISED IN THE DECISION OF JUNE 9, 1959, AS TO THE REASONS WHY THIS OFFICE VIEWS THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 620, AS FURNISHING NO PROPER BASIS FOR ANY INCREASE IN COMMANDER RAYMOND'S RETIRED PAY AS AN OFFICER OF THE UNITED STATES NAVAL RESERVE FOR THE PERIOD BEGINNING OCTOBER 1, 1949.

UNDER THE DECISION IN THE PHELAN CASE RETIRED PAY IS AUTHORIZED TO BE COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, ON THE BASIS OF THE RATES OF ACTIVE DUTY PAY PRESCRIBED IN THE 1949 LAW FOR THE RANK OR GRADE HELD AT THE TIME OF RETIREMENT (THUS INCLUDING CREDIT FOR ALL INACTIVE AS WELL AS ACTIVE SERVICE) MULTIPLIED EITHER BY (1) THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH ENTITLED UNDER SECTION 412 OF THE ACT MULTIPLIED BY 2 1/2 PERCENT, OR (2) BY THE PERCENTAGE OF PHYSICAL DISABILITY AT TIME OF RETIREMENT. IT IS NOT PERCEIVED HOW THAT DECISION HAS ANY BEARING ON COMMANDER RAYMOND'S CLAIM SINCE THAT CASE AND THE EIGHT OTHER RELATED CASES DECIDED TOGETHER ON THAT SAME DATE CONCERN "SUITS BY NINE PLAINTIFFS, COMMISSIONED OFFICERS OF THE REGULAR ARMY WHOSE MILITARY SERVICES BEGAN PRIOR TO NOVEMBER 12, 1918, AND WHO WERE RETIRED FOR PHYSICAL DISABILITY. AFTER SOME YEARS ON THE RETIRED LIST, THEY WERE RECALLED TO ACTIVE DUTY FOR VARYING PERIODS AND LATER AGAIN RETIRED.' THAT DECISION APPARENTLY WAS BASED ON A RE-RETIREMENT BELIEVED TO HAVE BEEN EFFECTED PRIOR TO OCTOBER 1, 1949, UNDER AUTHORITY OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 ACT, WHICH IS APPLICABLE ONLY TO OFFICERS OF THE REGULAR SERVICES. COMMANDER RAYMOND, A RESERVE OFFICER, CAN CLAIM THE SAME BENEFITS ONLY IN THE EVENT THE PROVISIONS OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT GRANT THEM TO HIM. SUCH STATUTORY PROVISIONS WERE CONSIDERED BY THE COURT IN THE DECISION RENDERED ON JULY 12, 1957, IN THE CASE OF JACKSON PALMER V. UNITED STATES, 139 C.CLS. 376, WHICH INVOLVED "A PREVIOUSLY RETIRED NON REGULAR OFFICER, WHO HAS SERVED IN THE SERVICE PRIOR TO NOVEMBER 12, 1918.' THE COURT APPARENTLY TOOK THE VIEW THAT THE APPLICABLE PROVISIONS OF THE 1942 AND 1949 ACTS CAN BE COMBINED TO ACCOMPLISH A PAY RAISE ONLY IN CASES OF RETIREMENTS ON OR AFTER OCTOBER 1, 1949. WE AGREE WITH THAT CONCLUSION. NOTWITHSTANDING THE USE OF THE WORDS "HERETOFORE * * * RETIRED" IN SECTION 402 (I) OF THE 1949 ACT, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THAT ACT WHICH INDICATES IN ANY WAY THAT THE CONGRESS INTENDED THAT ENACTMENT OF THAT SECTION SHOULD RESULT IN ANY RAISES IN RETIRED PAY EFFECTIVE OCTOBER 1, 1949. COMMANDER RAYMOND'S RETIRED PAY STATUS APPEARS TO FALL SQUARELY WITHIN THE RULE OF THE JACKSON PALMER CASE.

IN ANY EVENT, SINCE COMMANDER RAYMOND IS A RETIRED COMMISSIONED OFFICER OF THE UNITED STATES NAVAL RESERVE, HIS RETIRED PAY STATUS DOES NOT LIE WITHIN THE SCOPE OF THE PHELAN DECISION OF JUNE 3, 1959, AND CONSEQUENTLY NO ADDITIONAL AMOUNT OF RETIRED PAY IS FOUND DUE HIM UNDER THE RULE OF THAT CASE.

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