Lieutenant Colonel Harry C. Fraser, B-78581
| Decision Date | 09 October 1967 |
| Docket Number | B-78581 |
| Parties | LIEUTENANT COLONEL HARRY C. FRASER, AUS, RETIRED |
| Court | Comptroller General of the United States |
Armed services - retired pay - re-retirement decision to retired army officer concerning claim for increased retired pay. Retired army member who, after service in world war i, was re retired as warrant officer following satisfactory service in temporary rank of lieutenant colonel in world war ii became entitled under zur linden v. U.S., to receive retired pay at rate of 75 percent of active duty pay of warrant officer with over 3 years' service from date of re retirement. Upon advancement on retired list member became entitled to recomputation of retired pay on same 75 percent basis predicated on pay of lieutenant colonel based on rates on day of retirement. Although member should have received additional retired pay for periods Feb. 1, 1947 to Sept. 30 1949 and Dec. 20, 1953 to March 31, 1955, benefits that accrued prior to 10 years before receipt of claim by GAO are barred. However increased retired pay May be made for period August 12, 1954 to March 311955.
Reference is made to your letter dated June 1, 1967, addressed to the U.S. Army finance center, which was forwarded to our office for reply, concerning your claim for increased retired pay from a 57-1/2 percent basis that you are currently receiving to a 75 percent basis which you believe to be due you by virtue of the provisions of the fourth paragraph of section 15 of the pay readjustment act of 1942, ch. 413, 56 Stat 368, 37 U.S.C. 115 (1952 ed.).
Our file shows that this matter was the subject of letters from our claims division dated September 9, 1964, December 1 1964, and December 17, 1964, in which you were advised that by virtue of the provisions of the barring act of October 9 1940, ch. 788, 54 Stat. 1061, 31 U.S.C. 71a, this office was without authority to consider any claim concerning entitlement to retired pay which antedated 10 years prior to the date we received the first notice of such claim. It was indicated that since we received your claim for increased retired pay on August 12, 1964, any retired pay claim which you May have had prior to August 12, 1954, was barred from consideration by that act.
You again contend that you have been underpaid retired pay since you were retired on January 31, 1947, and in support of your claim you direct attention to a statement which you quote from the May 1967 issue of the retired officer magazine. That article states in substance that the retirement of a member of the armed services, in a warrant officer grade, after the effective date of the pay readjustment act of 1942, where such retiree had previously served in the armed forces during world war i, entitled him to compute his retired pay based on a 75 percent multiplier factor.
The record shows that you served as a member of the regular army prior to November 12, 1918; as a warrant officer (jg) in the regular army from October 1, 1941, to May 11, 1942, and as a commissioned officer, aus, from May 12, 1942, to December 7, 1946, during which time you were promoted to the temporary rank of lieutenant colonel, the highest rank satisfactorily held by you. On December 8, 1946, you were reappointed a warrant officer (jg) in the regular army and at your own request were retired from active service on January 31, 1947, under section 5 of the act of August 21, 1941, ch. 384, 55 Stat. 653, after 23 years, 1 month and 9 days' active service.
In our decision 43 Comp.Gen. 68, we decided to follow the holding in the case of zur-linden v. United States, 158 Ct. Cl. 383 (1962), that a "warrant officer" is an "officer" for purposes of the fourth paragraph of section 15 of the 1942 Law. On the basis of your service record, it would therefore appear that you became entitled to receive retired pay at the rate of 75 percent of the active duty pay and allowances of a warrant officer (jg) with over 23 years' service from February 1, 1947, to September 30, 1949, based on the rate of pay prescribed in the act of June 29, 1946, ch. 523, 60 Stat. 343 ($182.25). You were paid at the rate of $139.73 per month.
On October 1, 1949, the career compensation act, ch. 681, 63 Stat. 802, became effective, section 511 of which provided for the payment of retired pay to members retired prior to the passage of that act on the basis of the higher of the following:
Effective October 1, 1949, you became entitled to retired pay based on the greater of method (A), 75 percent of the pay and allowances of a warrant officer with 23 years' service applying the rates in effect at the time of your retirement ($182.25), or method (B), 57-1/2 percent of the pay and allowances of a lieutenant colonel (your highest federally recognized rank) based on the 1949 rates ($319.56). It appears that you received retired pay at the latter rate commencing October 1, 1949. That...
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