B-155982, OCT. 25, 1966

B-155982, OCT. 25, 1966

TO COMMANDER D. G. SUNDBERG, SC, USN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1966, (XHA:HA:99 149 811), ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE CONCERNING THE CERTIFICATION BY THE CLAIMS DIVISION ON MARCH 22, 1965, OF MILITARY PAY AND ALLOWANCE CLAIMS VOUCHER NO. 13776 (GAO CLAIM NO. Z 2284787) STATED IN FAVOR OF COMMISSIONED WARRANT OFFICER (W-2) EDGAR ROBERT LEWIS, U.S. NAVAL RESERVE (RETIRED) IN THE NET AMOUNT OF $4,964.04, REPRESENTING INCREASED DISABILITY RETIRED PAY FOR THE PERIOD OCTOBER 26, 1959, TO FEBRUARY 28, 1965, INCLUSIVE, COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368.

YOU EXPRESS THE VIEW THAT THE ACTION TAKEN IN THIS CASE "APPEARS TO BE IN ERROR" AND REQUEST INFORMATION AS TO THE BASIS OF THE MARCH 22, 1965, SETTLEMENT. YOU ADD THAT MR. LEWIS' DISABILITY RETIRED PAY WAS INCREASED BY THE NAVY FINANCE CENTER TO THE FOURTH PARAGRAPH OF SECTION 15 BASIS EFFECTIVE MARCH 1, 1965, BUT HAS BEEN REDUCED TO THE FORMER METHOD OF COMPUTATION BEGINNING SEPTEMBER 1, 1966.

YOUR DOUBT AS TO THE CORRECT METHOD OF COMPUTING MR. LEWIS' DISABILITY RETIRED PAY ARISES BY REASON OF THE FACT THAT HIS STATUS AS A COMMISSIONED WARRANT OFFICER IN THE U.S. NAVAL RESERVE TERMINATED JULY 15, 1946, AND THAT ON OCTOBER 25, 1959, THE DAY BEFORE HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1202, HE WAS SERVING ON ACTIVE DUTY AS AN ENLISTED MEMBER. YOU STATE THAT THE SITUATION APPEARS TO BE IDENTICAL TO THAT CONSIDERED IN DECISION OF JULY 5, 1956, 36 COMP. GEN. 8, WHEREIN IT WAS HELD THAT AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY AND DETERMINED TO BE ELIGIBLE FOR DISABILITY RETIRED PAY COMPUTED ON THE BASIS OF A COMMISSIONED OFFICER RANK OR GRADE, PURSUANT TO SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816 AND 823, RESPECTIVELY, DOES NOT HAVE HIS ENLISTED STATUS TERMINATED AND IS NOT TO BE CONSIDERED AS AN OFFICER AT THE TIME OF RETIREMENT FOR THE COMPUTATION OF RETIRED PAY PURSUANT TO THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW.

SUBSEQUENT TO OUR DECISION OF JULY 5, 1956, THE COURT OF CLAIMS IN JAKWAY V. UNITED STATES, 146 CT.CL. 482, DECIDED JULY 13, 1959--- A CASE INVOLVING THE SAME STATUTORY PROVISIONS WHICH HAD BEEN CONSIDERED BY THIS OFFICE IN 36 COMP. GEN. 8--- HELD THAT BY VIRTUE OF THE PROVISIONS OF SECTION 409 JAKWAY'S RETIREMENT "WAS REQUIRED TO BE IN THE RANK OF COLONEL BECAUSE THAT WAS THE RANK ON WHICH HIS DISABILITY RETIREMENT PAY WAS BASED UNDER SECTION 402 (D).' THE COURT SAID:

"ACCORDINGLY, UNDER SECTION 409, PLAINTIFF (JAKWAY), WAS REQUIRED TO BE (AND WAS) RETIRED IN SUCH HIGHER TEMPORARY RANK OF COLONEL WHICH WAS THE RANK ON WHICH HIS RETIRED PAY WAS BASED. THIS IS NOT STATING THAT PLAINTIFF WAS SERVING ON ACTIVE DUTY AS AN OFFICER AT THE TIME OF HIS RETIREMENT, IT IS MERELY STATING THAT HE WAS RETIRED AS AN OFFICER UNDER THE SPECIFIC REQUIREMENTS OF SECTIONS 402 (D) AND 409 OF THE CAREER COMPENSATION ACT OF 1949.'

SINCE THE PLAINTIFF, JAKWAY, WAS RETIRED AS A COLONEL AND SINCE AS A MEMBER OF THE AIR FORCE RESERVE HE WAS ENTITLED UNDER SECTION 402 (I) OF THE 1949 LAW TO BE TREATED IN THE SAME MANNER AS AN OFFICER OF THE REGULAR AIR FORCE THE COURT HELD THAT HE WAS ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW.

IN DECISION OF JUNE 21, 1960, 39 COMP. GEN. 855, WE DECIDED TO FOLLOW THE RULE OF THE JAKWAY CASE AS A PRECEDENT IN ACTING ON OTHER SIMILAR CASES AND STATED THAT "TO THE EXTENT THAT 36 COMP. GEN. 8 CONFLICTS WITH SUCH COURT DECISION IT WILL NOT BE FOLLOWED.' ALSO NOTE PAGE XXIX IN 39 COMP. GEN. AS TO DECISIONS OVERRULED OR MODIFIED.

THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 ABOVE REFERRED TO WERE CODIFIED IN SECTIONS 1202, 1215, 1372, AND 1401 OF TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 92, 100, 105, AND 106, RESPECTIVELY. THESE STATUTORY PROVISIONS WERE IN FORCE IN OCTOBER 1959 WHEN MR. LEWIS WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. HENCE THE HOLDING IN THE JAKWAY DECISION APPLIES IN MR. LEWIS' CASE AND THE RULE OF 36 COMP. GEN. 8 IS INAPPLICABLE.