Petition for Writ of Certiorari — McCarron v. United States, 109 S. Ct. 138 (1988) (No. 88-133)

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Supreme Court, U.S.

FILED

236133 . JUL 22 1988

« HOSEPH F. SPANIOL, JR,

CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

CW2 (Ret.) NEIL F. MCCARRON, JR.,

PETITIONER

THE UNITED STATES,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

NEIL F. McCARRON, JR. Esq. Pro Se

57 Wildwood Drive

Bedford, MA 01730

(617) 275-7267

(617) 275-8926

U s Ss DF EVIEW

ss Is an Army warrant officer who has

served for more than 16 years as a

commissioned officer entitled to be

retired after 20 years service as a

commissioned officer under the

provisions of 10 USC 1293, 1371, 3911,

and 3926?

Ye Is an Army warrant officer

prevented by the provision of 10 USC 3964

from being retired as a commissioned officer?

aa Was the petitioner denied his

constitutional right to due process and equal

protection of the law in a case of statutory

construction, when the court based its

construction of the applicable statutes

solely upon the language used in the U.S.

Code, and expressly refused to examine the

statute and its legislative history to ensure

that the court's construction conformed to

the purpose and object of the statute?

4. Was the petitioner denied his

constitutional right to due process and equal

protection when the trial court, in a case of

statutory construction:

(a) construed 10 USC 3964 to compel an

unequal and discriminatory application of the

statute between the two groups to which it

applies, retired warrant officers and

enlisted men of the Army; by preventing

warrant officers but permitting enlisted men

to be retired in higher commissioned officer

grades?

(b) construed 10 USC 1371 to compel an

unequal and discriminatory application of

that statute between the persons to which it

applies, the warrant officers of the Army and

Navy by preventing Army Warrant Officers, but

permitting Navy warrant officers to be

retired in higher commissioned officer

grades?

iii

unequal and discriminatory application of

that statute between similarly situated

personnel, the enlisted men and warrant

officers of the Army by preventing warrant

officers, but permitting enlisted men to be

retired in a higher commissioned officer

grade?

TABLE OF CASES AND AUTHORITIES

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASON FOR GRANTING THE WRIT

ARGUMENT

vill

ERROR IN CONSTRUCTION OF:

10 USC 3964

10 USC 3911

10 USC 1371

CONCLUSION

LIST OF APPENDICES

Opinion of the Court of Appeals

for the Federal Circuit McCarron

v. The United States 87-1548

Notice of Denial of Petition

for Rehearing

Decision, U.S. Claims Court,

McCarron v. The United States

12 €1.ct. 582 (1987)

Decision, U.S. Army Board for

Correction of Military Records

in the case of Neil F. McCarron.

10 USC 277

10 USC 1293

19 usc 1371

10 usc 3911

10 usc 3918

10 USC 3926

10 usc 3963

10 USC 3964

10 USC 6323

10 usc 6325

19 USC 555

Public Law 79-305, (Sec. 6)

Army and Air Force

Vitalization & Retirement

Equalization Act (§8202,203,2' 5)

The Warrant Officer Act,

Senate Report 1284 extract (p.

Hearings

Subcommittee Hearing,

on H.R. 6374, The

Warrant Officer Act extract(;

Defendant's Admissions

19)

. 3/66)

101

107

109

131

viii

TABLE OF CASES AND AUTHORITIES

United States Constitution, Fifth Amendment.

United States Code Provisions:

10 USC 277

10 usc 555 24

10 USC 1293 5

10 usc 1371 wor: F:

10 USC 3911 5,6,11,13,26,29,30,31

10 usc 3918 30,31

10 USC 3926 5

10 USC 3964 9,10,11,13,14,18,19,20

10 USC 6323 19,27

10 USC 6325 19,27

Cases:

Association of Salaried Employees

v. Western Electric 348 US 432 (1955) 8,13

ale ss»

The United States 148 US 457 (1892) 9

Jackway v. The United States

178 F. Supp. 307 (1959) 10,15,16

Jones v. The United States

282 F.2d 906 (1960) 15,16

Ozawa v. The United States

260 US 178 (1922) 18

Smith V. Townsend 148 US 720 (1893) 12,17,23

Taylor v. The United States

163 F. Supp. 652 (1958) 15

The United States v.

American Trucking 310 US 534 (1946)

Statutes:

The Army and Air Force Vitalization

and Retirement Equalization Act of

1948, Public Law 80-810, 80th

Congress, 2d Session, 62

Stat 1084 (1948) 9,13,18,20,26

The Warrant Officer Act of

1954, Public Law 83-379, 83rd

Congress, 2d Session, 68

Stat 157 (1954) 9,13,21,24

Navy, and Marine Corps and

Coast Guard, Retirement of

Personnel, Public Law 70-305,

79th Congress, 60 Stat 26 (1946)

Revision of Title 10 USC entitled

"Armed Forces" and Title 32 USC

entitled "National Guard" 70 A

Stat 640 (1956)

Senate/House Reports:

Senate Report No. 1543 on H.R. 2744

Retirement Equalization Act, 80th

Cong. 2d. Sess. (1948)

Senate Report No. 1284 on H.R. 6374,

Warrant Officer Act, 83rd Cong. 2d.

Sess. (1954)

19,26

21,29

Senate ings:

Senate Armed Services Committee

hearing on S. 1405, 77th Congress,

lst Session (1945)

House Armed Services Committee

Hearing on H.R. 2744, 80th Cong.

ist Sess. (1947)

House Armed Services Committee

Hearing on H.R. 6374, 83rd Cong.

2d. Sess. (1954)

Other:

Decision, U.S. Army Board for

Correction of Military Records,

23 Sept. 1981

Decision, U.S. Claims Court,

McCarron v. U.S.

Decision, U.S. Court of Appeals,

ef Se. " +

Decision, U.S. Comptroller General

28 Comp. Gen. 655

Defendant's Admissions

14,21,29

‘

a7, 49,40,4?

In the

Supreme Court of the United States

October Term 1988

No.

CW2 (Ret) Neil F. McCarron,

Petitioner

The United States,

Respondent

PE ON FOR W OF C R

OUR F

FOR THE FEDERAL CIRCUIT

The petitioner CW2 (Ret) Neil F.

McCarron, Jr. respectfully prays that a

writ of certiorari issue to review the

judgment of the U.S. Court of Appeals

for the Federal Circuit in the above

case.

Opinion Below

The U.S. Court of Appeals for the

Federal Circuit entered the decision on 28

March 1988, a copy of which is attached at

Appendix 32. A petition for rehearing was

denied by the Court of 25 April 1988, a copy

of which is attached at Appendix 36.

qe aes aa

In its opinion, the Court of Appeals

affirmed a decision of the U.S. Claims Court

which denied petitioners motion for Summary

Judgment and granted the defendants Cross

Motion for Summary Judgment.

The U.S. Claims Court opinion, filed on

2 July 1987 and entered on 6 July 1987

appears at 12 Cl. Ct. 582 (1987), a copy of

which is attached at Appendix 37.

Jurisdic

The jurisdiction of this Court is

invoked under the provisions of 28 USC 1254,

the jurisdiction of the U.S. Claims Court was

invoked under the provisions of 10 USC 1491,

10 USC 1371, 10 USC 3911, 10 USC 277, and the

Fifth Amendment to the Constitution.

Constitutional Provisions, Statutes

Fifth-Amendment to the Constitution

No person shall...be deprived of life,

liberty, or property, without due

process of law...

U.S. C vi

10 USC 277

10 USC 1293

10 USC 1371

10 USC 3911

10 USC 3918

10 USC 3926

10 USC 3964

10 USC 6323

10 USC 6325

Statutes

The Army and Air Force Vitalization and

Retirement Equalization Act 62 Stat 1084

(1948)

The Warrant Officer Act 68 Stat 157

(1954)

Navy, Marine Corps, and Coast Guard

Retirement of Personnel 60 Stat 26 (1946)

vc ae a4 .

iy <n ne

STATEMENT OF THE CASE

This petition involves a dispute over

the military grade and pay to which the

plaintiff was entitled upon his retirement

from the Army.

Plaintiff/Petitioner: is a former Army

officer who was retired in the grade of Chief

Warrant Officer (CW-2) after serving on

active duty for more than twenty years.

During the course of his military career

the plaintiff had served for 16 years, 6

months, and 6 days in higher commissioned

officer grades than the grade (CW-2) in which

he was retired, and had served for more than

8 years in the grade of Major. Petitioner's

last 3 1/2 years of service immediately

preceeding his retirement were served in the

grade of warrant officer (CW2). Petitioner

1Ppro Se Plaintiff/Petitioner in this

case is an attorney licensed and practicing

law in the State of Massachusetts.

contends he was entitled to be retired as a

commissioned officer, in the grade of Major,

under the provisions of 10 USC 1293, 10 USC

1371, 10 USC 3911, and 10 USC 3926 because of

his prior service for more than 10 years as a

commissioned officer.

The facts are undisputed that plaintiff

entered the Army as a 2nd Lt. in 1960 and

received regular promotions up to and

including promotion to Major in 1967. In

1975 and 1976 after 16 1/2 years of service

as a commissioned officer and while serving

in the grade of Major, plaintiff was

considered but not selected for promotion to

Lieutenant Colonel. Two promotion passovers

such as plaintiff received requires a Reserve

Officer to be released from Active Duty

pursuant to 10 USC 3303 (1976). Plaintiff

howeve: . in order to remain on active duty,

applied for and was given an appointment, on

active duty, in the Army, as a warrant

iii

officer. On 5 August 1976, plaintiff

resigned his reserve commission as a major,

and on the following day accepted an

appointment as a warrant officer, on active

duty in the Army. Plaintiff's last 3 1/2

years of service in the Army were served in

the grade of Chief Warrant Officer (CW-2).

In 1979 prior to his retirement,

plaintiff asked the Army for a determination

of his eligibility to be retired under the

provisions of 10 USC 3911 in the higher

commissioned officer grade of Major.

Plaintiff noted in his request that similarly

Situated personnel, Army enlisted men and

Warrant Officers of the Naval services, are

retired in higher commissioned officer grades

under the provisions of law for retirement of

commissioned officers of the respective

services.

The Army replied that plaintiff was not

entitled to be retired in any grade other

than Warrant Officer. In March 1981,

plaintiff applied to the Army Board for

Correction of Military Records (ABCMR)

seeking correction of his records to reflect

retirement in the grade of Major, with

retirement pay for that grade retroactive to

the date of his retirement in April 1980.

The ABCMR denied the petition. This

suit was filed in the U.S. Claims Court on 14

September 1981 and decided on 2 July 1987 on

cross motions for summary judgement. The

Claims Court dismissed the plaintiff's

complaint and decided in favor of the

defendant.

The case was appealed to the U.S. Court

of Appeals for the Federal Circuit which

affirmed the decision of the U.S. Claims

Court on 28 March 1988. A petition for

rehearing was denied on 25 April 1988.

REASON FOR GRANTING THE WRIT

In construing the provision of 10 USC

3911, 3964, and 1371, the court below

fashioned a construction based solely on the

language of the code and expressly refused to

examine the applicable statutes, their

purpose, and the relevant legislative history

to insure that the court's interpretation was

consistent with the purpose and object of the

statute.

The Supreme Court has held that a court

has a duty in a case of statutory

construction, to examine the statute and its

legislative history to insure that the search

for meaning should not be limited to just the

statutory language. Association of Salaried

Employees v. Western Electric 348 U.S. 437

(1955). And to prevent a judicial

construction of a statute that conforms to

the letter of the statute but is not within

the spirit or intent of the legislature Holy

Trinity v. United States 148 US 457 (1892).

The two statutes involved, the Army and

Air Force Vitalization and Retirement

Equalization Act, and the Warrant Officer Act

were enacted specifically to equalize

retirement benefits between the different

armed services and between the warrant

officers of the different services in

particular.

The court's construction that the

provisions of 10 USC 3964 prevent an Army

warrant officer from being retired as a

commissioned officer defeat the congressional

purpose of both of the above statutes by

treating Army warrant officers differently

and less favorably than the warrant officers

of the naval services and differently and

less favorably than similarly situated Army

enlisted men who are retired as commissioned

officers if they have served for 10 or more

baie teenie

years as such.

The language of the code provision upon

which the Court based its decision (10 USC

3964) is not so clear and unambiguous that it

is susceptible of just one construction.

The court's construction that 10 USC

3964 establishes the criteria for a warrant

officer to be retired as a commissioned

officer conflicts with three prior decisions

of the U.S. Claims Court that identified a

distinction between retirement in a higher

Grade and advancement on the retired list.

One of these, Jackway v. The United States

178 F. Supp. 307 was decided in 1959, well

after the incorporation of 10 USC 3964 into

the code. There the Court of Claims held

that a warrant officer who had formerly

served as a commissioned officer could be

retired as a commissioned officer in the

grade of colonel, notwithstanding the

existence of the advancement provisions for

warrant officers, or the fact that the

individual's last six years of service were

served as a warrant officer.

The court's failure to examine the

relevant legislative history to insure that

its interpretation was consistent with the

purpose and objective of the legislation

violated petitioners right to due process and

equal protection of law, and resulted in an

erroneous construction of the code provision.

Had the court made a sufficient inquiry, it

would have seen that 10 USC 3964 addresses

only advancement on the retired list and that

10 USC 1371 establishes the grade in which a

warrant officer retires on the date of his

retirement.

In construing the provisions of 10 USC

3964, 3911, and 1371 the court fashioned a

construction which in each instance compels

the unequal and discriminatory application of

each of the above statutes as they are

applied to Army Warrant Officers and violates

the rule of this court that statutes apply in

a uniform manner and nothing but clear and

unmistakable language will warrant the

unequal operation of a statute Smith v.

Townsend 148 U.S. 490 (1892).

ARGUMENT

Plaintiff raised the issue in this case

of his right to be retired as a commissioned

officer under the provisions of 10 USC 3911

upon completion of twenty years service. The

Plaintiff went to great lengths to identify

and explain the entitlement but the question

was simply not given a reasonable examination

by either the trial or appellate court.

or in Constr ion of 10 USC 3964

amb i

Contrary to the rule expressed in

ociati of § ied Emplo s v. Weste

Electric Supra; neither court examined the

statute? or legislative history to determine

2The applicable statutes, Army and Air

Force Vitalization and Retirement

Equalization Act, 62 Stat. 1084, Section 202-

205, and the Warrant Officer Act, 68 Stat.

157, Sections 14D, F, were incorporated into

Title 10 and codified in 1956. As so

codified they were enacted into positive law

if the search for meaning should include

those materials. See Opinion, U.S. Claims

Court, Appendix 47, U.S. Court of Appeals,

Appendix 35. As a result, the U.S. Claims

court, relying solely upon the words

contained in the code determined that 10 USC

3964 was dispositive of the issue and that

its provisions prevent a warrant officer from

being retired in any higher grade until he

completes thirty years of service.

Because the Court refused to examine the

statute and legislative history, it failed to

identify a latent ambiguity in 10 USC 3964.

The court erroneously concluded that the

langugage of 10 USC 3964 which provides for

advancement on the retired list rather than

rank at retirement, as also requiring thirty

years of service to be retired in a higher

in the Act of 10 August 1956, 70A Stat. 32 of

the code. The enactment of the codification

was intended merely to restate the law and

not alter it. See section 49A of the Act of

August 10, 1956, 7OA Stat. at 640.

commissioned officer grade.

The two benefits, advancement on the

retired list and retirement in a higher

grade, are not the same as the Claims Court

itself pointed out in the cases of Jackway v.

The United States 178 F. Supp. 307, 309

(1959), Jones v. The United States 282 F2d

906, 911 (1960), and Taylor v. The United

States 163 F. Supp. 652, 656 (1958).

In Taylor v. The United States Id, the

Claims Court first identified and addressed

the difference between being placed on the

retired list in a higher commissioned grade

and being advanced to a higher grade. The

Taylor court ruled that an enlisted man who

had formerly served for five years as a

commissioned officer, would not be retired as

a commissioned officer, but would be advanced

on the retired list after thirty years of

service. See Tavis Id 163 F. Supp. 652, 656

(1958).

j ” ,

But, in Jackway, Supra. which also

litigated the distinction between entitlement

to retirement in a higher grade and being

advanced to it, the Jackway court ruled that

a warrant officer who had formerly served as

a commissioned officer, was entitled to be

retired as a commisssioned officer, in the

grade of Colonel, notwithstanding the

existence of "advancement" provisions for

warrant officers in 10 USC 3964; or the fact

that his last six years of active duty were

served as a Warrant Officer. See Jackway 178

F. Supp. 307, Jil (hPaR).

And, in Jones v. The United States,

Supra. the Claims Court cited Jackway and

reiterated the distinction between retirement

in a higher commissioned grade and being

advanced to it. See Jones Supra., 282 F2d

906, 911 (1960).

The above cases establish that

reitrement in a higher grade and advancement

on the retired list are separate and distinct

entitlements, and that the existence of

advancement provisions do not prevent a

warrant officer from being retired as a

commissioned officer.

Unequal Operation

10 USC 3964 applies to both warrant

officers and enlisted men; and the defendant

had admitted in discovery that this provision

does not prevent an enlisted man with 10 or

more years of service as a commissioned

officer from being retired in a higher

commissioned grade. See defendants admission

No. 23 Appendix 113. The Courts construction

that 10 USC 3964 will prevent the warrant

officer but not the enlisted man from being

retired in a higher commissioned officer

grade violates the principle contained in

Smith v. Townsend 148 US 720 (1893) that

nothing but clear and unmistakable language

will warrant a construction calling for the

unequal operation of a statute.

Unreasonable Result

The Supreme Court has held that a

construction of a statute that produces an

unreasonable result plainly at variance with

the policy of the legislation as a whole must

be rejected. Ozawa v. U.S. 260 US 178

(1922), U.S. v. American Trucking 310 US 534

(1946).

The policy of the legislature in

enacting the Army and Air Force Vitalization

and Retirement Equalization Act, in which 10

USC 3964 was enacted, was to provide Army and

Air Force personnel with exactly the same

retirement benefits that corresponding

personnel of the Navy were given.

The title of act identifies it as a

Retirement Equalization Act and its purpose

reported in the Senate Report No. 1543 1 June

1948 is to place personnel of the Army and

Air Force on a par with personnel of the Navy

for retirement. The Act's sponsor, General

Paul, testified in Subcommittee hearing on

H.R. 2744 12 May 1947 that the bill was

intended to provide "without admendment or

modification, Army and Air Force personnel

with exactly the same retirement benefits

that corresponding personnel of the Navy were

provided in Public Law 79-305."

The Court's construction of 10 USC 3964

would destroy that equality which was

evidently the intent of Congress by denying

to Army Warrant Officers a benefit enjoyed by

corresponding warrant officers of the Naval

services. It is established in the code and

the defendant has admitted that Naval

services warrant officers who have served for

more than 10 years as commissioned officers

are retired in higher commissioned officer

grades. See defendants admission, No. 2(a);

appendix 111. See also 10 USC 6323, 6325

Appendix 90, 93.

COURTS CONSTRUCTION OF 10 USC 3964

VIOLATES EXPRESS CONGRESSIONAL LIMITATION ON

JUDICIAL CONSTRUCTION.

The advancement provisions of 10 USC

3964 were enacted in section 203(C) and

203(E) of the Army and Air Force Vitalization

and Retirement Equalization Act of 1948:

Appendix 102, 104. Section 205(b) of the act

expressly prohibited the advancement

provisions from being construed to deny a

person of any higher retired grade or pay to

which he may be entitled under any other

provision.

Section 205(b) of the Act provides:

Nothing contained in this title shall be

construed to deprive any person of any

higher retired grade or rank, or any

greater retired or retirement pay to

which he or she may be entitled under

any other provision of law.

The Court's determination that the

advancement provisions in 10 USC 3964 would

prevent a warrant officer on active duty from

being retired in a higher grade violates the

express prohibition of such a construction at

section 205(B) of the Act.

; . 16 1371

In arriving at its decision, the

appellate court concluded that 10 USC 1371

limited an Army warrant officer to retirement

only in the grade he held on the day of

retirement, See Opinion, U.S. Court of

Appeals, Appendix 34. That construction

defeats the very purpose of the Warrant

Officer Act from which 10 USC 1371 is

derived, and it compels the unequal operation

of the statute between Army? and Navy warrant

officers.

The purpose of the Warrant Officer Act

is found in Senate Report 1284 on HR 6374

dated 14 April 1954. Under the heading MAIN

The Air Force discontinued and no

longer has a warrant officer program.

CONCEPTS of the bill is found:

"The bill in providing for a permanent

statutory career plan for warrant officers

establishes:

warrant officers of all the military services

who complete 20 years of active service."

Here, the statute clearly applies to

warrant officers of all of the services, not

just Army warrant officers, and it is

established that warrant officers of the Navy

are not prevented by 10 USC 1371 from being

retired in higher commissioned officer grades

than those they hold upon the day of

retirement.

The court's construction that 10 USC

1371 prevents an Army warrant officer, but

not a Navy warrant officer, from being

retired in a higher commissioned officer

grade produces an unreasonable result,

plainly at variance with the intent and

purpose of the legislation.

The construction also violates the

principle expressed in the Supreme Court case

of Smith v. Townsend 148 US 490 (1892) that

nothing but clear and unmistakable language

will permit the construction of a statute

which results in its unequal operation.

The congressional intent that a warrant

officer's opportunity to be retired in a

higher grade be preserved for him is

expressed in the proviso to 10 USC 1371,

"Unless entitled to a higher grade... a

warrant officer retires in the grade he holds

on the day before he retires...." Appendix

83. Congress was specifically assured by the

military in testimony before the House

Subcommittee on H.R. 6374 on 3 March 1954,

Appendix 109, that a warrant officer's right

to retire as a commissioned officer under the

law fur retirement of commissioned officers,

was preserved to him by the savings provision

of section 14(f) of the Act. These

provisions now codified as the proviso to 10

USC 1371 provided:

The provisions of this section or

section 13 shall not prevent any warrant

officer from electing to be placed on

the retired list in the highest grade

and with the highest pay to which he may

be entitled under any other law.

Appointment Form

In the Warrant Officer Act Congress

allowed one difference to remain in the form

used to appoint warrant officers to their

office. Navy warrant officers would be

appointed by "commission" and Army warrant

officers would be appointed by "warrant". In

permiting this difference to remain in

existence, Congress was specificaily assured

by the services that the difference in

appointments was a matter of form only, and

that no inequities would result.‘ See Senate

4In 1986, five years after this suit was

begun, the Army sponsored legislation that

changed the appointment form of Army warrant

officers from a "warrant" to a "commission"

Report No. 1284 on H.R. 6374, 14 April 1954,

p, 919, Appendix 107.

The court's conclusion that congress

intended a different "statutory scheme" or

even different retirement provisions for Army

warrant officers based on their appointment

form is directly contradicted by the above

legislative history and by a previous

admission of the defendant. See defendant's

admission No. 11, Appendix 112.

Error in Construction of 10 USC 39

The Court's construction that 10 USC

3911 excludes warrant officers from its

provisions, conflicts with the purpose and

object of the statute from which 10 USC 3911

was codified.

and in that manner terminated their former

illegal practice of denying Army warrant

officers the right to be retired under the

provisions of 10 USC 3911 as commissioned

officers. See 10 USC 555(b) Appendix 96.

The Acts title, ite purpose and its

sponsor, General Paul clearly expressed the

legislative intent that the statute was to

provide Army and Air Force personnel with

exactly the same retirement benefits that

corresponding personnel of the Navy were

given in Public Law 79-305.

Provisi r irm 4

The provision for retirement of navy

officers in Public Law 79-305 states "... Any

officer... or any member of the naval

service... with twenty years federal

service... 10 of which is commissioned... may

be retired." Appendix 99.

The provision for retirement of

commissioned officers of the Navy apply to

all naval personnel; commissioned officers,

warrant officers, and enlisted men. See 10

USC 6325, 6326. And the legislative history

shows the provisions were drafted

specifically to include and apply to warrant

officers and enlisted men who could qualify.

Capt. Hopwood testified in Senate Hearing on

S. Bill 1405, 1 November 1945, that "

An cfficer under existing law must have

20 years commissioned service to retire.

This changes the 20 years to 10 years of

commissioned service, and 10 years of

maybe enlisted service. We have very

many warrant officers and commissioned

warrant officers who would not be

eligible except under those conditions.

The Army adopted practically identical

language for its officers in section 202 of

the Equalization Act. "Any officer... with

twenty years federal service... 10 of which

is commissioned... may be retired..."

Appendix 101. And like the Navy, these

provisions were made applicable to warrant

officers by the provision of 203(c) of the

Act which states, "Warrant officers shall be

entitled to retirement under the same

conditions as commissioned officers..."

Appendix 102. Defendant has admitted that

the Army has previously retired Army warrant

officers and enlisted men as commissioned

officers under the provisions of section 202

of the Equalization Act. See Defendant's

Admission No. 28, Appendix 111. And,

continues to retire Army enlisted men under

that provision. See Defendant's admission

No. 23, Appendix 113.

And the Comptroller General ina

response to an Army inquiry regarding section

202, held in 1949 that section 202,

...applies to any officer of the

Reserves... and that the benefit granted

is in recognition of the fact that the

officer served on active duty for 20

years at least 10 of which must have

been commissioned service... and that is

the only requirement he must meet...

tee)

28 Comp. Gen. 655, 661 (1949).

However, in its opinion the U.S. Claims

Court concluded that section 202 "was changed

and limited to commissioned officers during

the 1956 codification of section 202 into 10

USC 3911". See Opinion, Appendix 50.

The construction that 10 USC 3911

excludes Army warrant officers from its

provisions defeats the purpose of both the

Retirement Equalization Act and the Warrant

Officer Act by treating Army warrant officers

differently than Navy warrant officers.

It is also incorrect as a matter of law.

Section 49(a) of the Act of August 10, 1956,

70 A Stat. at 640, which codified 10 USC 3911

states: "In section 1-48 of this Act, it is

the legislative purpose to restate without

substantive change, the law replaced by those

sections on the effective date of this Act."

And, the position taken by the appellate

court that 10 USC 3911 applies only to

commissioned officers, ignores the

legislative history and relies totally on the

word "commissioned" officer added by the

codifier without explanation into 10 USC 3911

in the 1956 codification. Although it went

unexplained in 10 USC 3911, the codification

of 10 USC 3918, for the retirement of

commissioned officers after 30 years of

services, does explain the addition of the

word "commissioned" officers to that section.

It was added there to distinguish it from the

new and separate provisions for warrant

officers enacted in the Warrant Officer Act

of 1954, and appearing for the first time in

the 1956 edition of the U.S. Code as title 10

sections 1293 and 1371. See 10 USC 3918,

appendix 86.

The Court's failure to look beyond the

language of the code produced the erroneous

construction that warrant officers are

excluded from being retired under the

provisions of 10 USC 3911.

The Court's failure to look to the

legislative history to ensure that its

interpretation of 10 USC 3911 was consistent

with the purpose and object of the

legislation deprived the petitioner of his

rights to the due process and equal

protection of the law.

For the foregoing reasons, Petitioner

Neil F. McCarron, Jr. respectfully requests

that a writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Federal Circuit.

Respectfully submitted,

hh Cem PR

eil F. McCarron, Esq. Pro Se

97 Wildwood Drive

Bedford, MA 01730

(617) 275-7267

(617) 275-8926

Dated: WP A900

APPENDIX

Note: This opinion has not been prepared

for publication in a printed volume

because it does not add significantly to

the body of law and is not of widespread

legal interest. It is a public record.

It is not citable as precedent. The

decision will appear in tables published

periodically.

ED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

De fendant-Appellee.

DECIDED: March 28, 1988

Before MARKEY, Chief Judge, NICHOLS,

Senior Circuit Judge, and NIES, Circuit

Judge.

PER CURIAM. 33

DECISION

CW2 (Ret.) Neil F. McCarron, Jr.

(McCarron) appeals the U.S. Claims Court's

grant of summary judgment to the United

States that McCarron is not entitled to an

upgrade of his Army retirement pension

rate to reflect his one-time service in

the commissioned grade of major. 12 Cl.

Ct. 582 (1987). We affirm.

The Claims Court properly looked

first to the language of the applicable

statute, 10 U.S.C. Section 3964 (1976).

United States v. Turkette, 452 U.S. 576,

580 (1981). As the Claims Court held, the

language of that section does not entitle

McCarron to the relief he seeks, 12 Cl.

Ct. at 584, and McCarron has shown no

clearly expressed legislative intent to

the contrary. See id.; Texas State

Comm'n for the Blind v. United States,

796 F.2d 400, 406 (Fed. Cir. 1986) (in

banc), cert. denied, 107 S. Ct. 874

(1987). Reading Section 3964 together

with 10 U.S.C. Sections 1371 and 3911, as

McCarron urges, does not alter that

conclusion. McCarron was retired in the

warrant officer grade he held on the day

before he retired, as Section 1371

requires. Section 3911 is inapplicable,

for on its face it relates only to

retirement of commissioned Army officers.

McCarron's reliance on legislative

history of repealed statutes is

unpersuasive. As the Claims Court noted,

the Army and Air Force Vitalization and

Retirement Equalization Act "does not

override later provisions enacted by

Congress to provide solely for retirement

of warrant officers in the Army," 12 Cl.

Ct. at 585. Moreover, assuming that Act

and the Warrant Officer Act apply here,

McCarron has pointed to nothing in their

language or legislative history requiring

the Army to adopt the Navy's practice of

retiring its warrant officers in the

highest commissioned rank held.

Congress has the authority to enact

different rules for the different branches

of the military services. See generally

Rostker v. Goldberg, 453 U.S. 57 (1981)

(upholding male-only draft registration) ;

Alexander v. Fioto, 430 U.S. 634 (1977)

(upholding statute excluding reservists

who did not return to active duty during

World War II from receiving retirement

benefits); U.S. Const. art. I, Section 8,

cls. 12-14.

McCarron has shown no error in the

Claims Court's opinion. We affirm on the

basis of that opinion.

Note: This Order has not been prepared for

publication in a printed volume because it does not

add significantly to the body of law and is not of

widespread legal interest. It is a public record.

Itc is not citable as precedenrc.

dnited States Court of Appeals for the Hederal Circuit

67-1546

Cw2 (RET.) NEIL F. McCARRON, JR.,

blainciff-Appellant,

Vv.

THE UNITED STATES,

Defendant-Appellee.

Before MARLEY, Chief Judge, NICHOLS, Senior Circuit Judge, and WLES,

Circuit Judge.

OKLER

A petition for rehearing having been filed in this case,

UPON CONSIDERATION THERLOF, it is

ORDERED that the petition for rehearing be, and the same hereby

is, denied.

Tho

lc suggestion for rehearing in banc is under consideration.

FOK THE COURT:

ee tee oy” ee Se

Date FILED

U.S. COURT OF APPEALS FOR

cc: Mr. Neil F. McCarron, Jr. THC FEDERAL CiRCUIT

Mr. John S. Groat, OJ

‘APR 25 196.

yl / / brancis X. Gindhart, Clerk

y7k %

FPANCIS X. GINOHART

CLcRiC

ee ee Eo ee Oe Oe Ne ee ee a eas eee Oe ee ee

IN THE UNITED STATES CLAIMS COURT

No. 561-81C

(Filed July 2, 1987)

CW2 (Ret.) NEIL F.

McCARRON, JR.,

Military Pay;

Plaintiff, Warrant Officer

Retirement;

Vv. Statutory

Construction;

THE UNITED STATES, Fifth Amendment

Defendant.

me meee ee ee ee ee ee

Neil F. McCarron, Jr., pro se,

Bedford, Massachusetts.

John S. Groat, Washington, D.C.,

with whom were Assistant Attorney General

Richard K. Willard, David M. Cohen,

and Thomas W. Petersen, for defendant.

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OPINION

HORN, Judge.

This military pay case came before

this Court on Saptenber 14, 1981, 1/ and

is now before the Court on plaintiff's

motion for summary judgement and

defendant's cross-motion for summary

judgment.

Plaintiff, Neil F. McCarron, Jr., a

former United States Army officer, brought

this action under Section 202 of the Army

and Air Force Vitalization and

Equalization Act of 1948, c. 708, 62 Stat.

1081, 10 U.S.C. Section 971(b), repealed

1/ This case was transferred to

Judge Horn after the retirement of Judge

Wood in 1986. Plaintiff filed a Motion

for Leave to File Supplemental Authority

on May 12, 1987. Plaintiff's motion was

allowed on May 12, 1987, and plaintiff's

submission was entered into the record on

that date.

by 70A Stat. 641 (1956), reenacted and

codified as 10 U.S.C. Section 1331, Act of

August 10, 1956, c. 1041, 70A Stat. 1,

102; Sections 14(d) & (f) of the Warrant

Officer Act of i954, ¢. 2469, 68 Stee. i337,

repealed by 70A Stat. 641, reenacted and

codified as 10 U.S.C. Section 1371 (1976);

10 U.S.C. Section 277 (1976), and the

Fifth Amendment to the Constitution.

Plaintiff seeks retirement in the higher

grade of major, effective back to April l,

1980.

At the time of his final retirement

from the military in 1980, McCarron

petitioned the Army Board for the

Correction of Military Records (ABCMR),

for an upgrade of his retirement pension

rate from that of a noncommissioned chief

warrant officer two, to reflect the

highest temporary commissioned grade, that

of major, in which he had satisfactorily

served at any time during his military

career. Although plaintiff had completed

the required 20 years of service to

retire, the ABCMR found that the plaintiff

was not eligible for a retirement upgrade.

Plaintiff then sought P review of the

ABCMR decision in this Court and has now

moved for summary judgment.

Defendant contends in its cross

motion for summary judgment that at the

time plaintiff retired, he was required to

accumulate a total of 30 years of active

service, with satisfactory performance, to

qualify for a retirement upgrade to the

rank of major. This Court agrees with the

defendant and with the September 23, 1981

ABCMR decision, which denied plaintiff a

retirement upgrade to the higher rank of

major, with accompanying back pay.

Plaintiff's petition for summary judgment

is, therefore, denied and defendant's

cross motion for summary judgment is

hereby granted.

Background

Plaintiff entered active military

service in the Army on January 31, 1960,

and progressed through regular rank

advancements, attaining the grade of major

in 1967. In 1974, and again in 1976,

plaintiff was considered, but not selected

for promotion to the rank of lieutenant

colonel by Army selection boards. 2/

Following these two non-selections for

promotion, the Army notified plaintiff

that he would be released from active duty

pursuant to 10 U.S.C. Section 3303 (1976).

Due to his pending release, plaintiff

applied for a noncommissioned warrant

officer appointment in the Army Reserve.

On August 5, 1976, after sixteen and one

half years of active military service,

2/ Plaintiff acknowledged at oral

argument that the composition of the Army

selection boards which considered his

promotions is not an issue in this case.

plaintiff voluntarily resigned his regular

commission of major and on the next day

accepted a noncommissioned warrant officer

appointment in the United States Army

active reserve.

Four years later, on April 1, 1980,

plaintiff voluntarily retired from active

reserve duty in the grade of non-

commissioned chief warrant officer two

(CW2). At the time of retirement, due to

his cumulative career in the regular and

reserve Army, plaintiff had accrued twenty

years and two months of active military

service. 3/

In March 1981, plaintiff applied to

the Army Board for the Correction of

3/ Prior to his retirement,

plaintiff had requested a determination

from the Department of the Army of his

eligibility for retirement in the rank of

major. The Army authorities advised him

then that he could not retire as a major

until the sum of his active service and

service on the retired list totalled at

least thirty years.

Military Records (ABCMR) seeking a review

of his military records and requesting

that his retirement grade be advanced to

iam

that of a commissioned major, with

retroactive back pay for retirement not

received. On September 23, 1981, the

ABCMR found that a retiring

noncommissioned warrant officer, such as

the plaintiff, would be entitled to

retirement in a higher commissioned

officer grade in which he had previously

served only if his combined commissioned

and noncommissioned years of service

totaled 30 years. Therefore, the ABCMR

found the plaintiff ineligible for a

retirement upgrade, as requested.

Plaintiff filed his complaint in this

Court on September 14, 1981, and

. subsequently a motion for summary judgment

on September 11, 1985. He seeks a review

of the ABCMR's decision, a correction of

his military records and a change in his

retirement grade to reflect an upgrade of

his retirement rank from noncommissioned

chief warrant officer two (CW2) to the

level of a commissioned major. He also

requests an additional award to cover

back, retirement pay, retroactive to

April 1, 1980.

Discussion

The parties submit that this case

presents an issue of statutory

construction. Plaintiff relies on several

statutes, including a number of which had

been repealed at the operative time, to

attempt to construct a theory to support

the relief he seeks. 4/ However, as

4/ Plaintiff relies on Section 202

of the Army and Air Force Vitalization

and Equalization Act of 1948, c. 708,

62 Stat. 1081, 10 U.S.C. Section 971(b),

repealed by 70A Stat. 641 (1956),

reenacted and codified as 10 U.S.C.

Section 1331, Act of August 10, 1956,

c. 1041, 70OA Stat. 1, 102; Sections 14(d)

& (f) cf the Warrant Officer Act of 1954,

c. 249, 68 Stat. 157, repealed by 70A Stat.

641, reenacted and codified as 10 U.S.C.

Section 1371 (1976); 10 U.S.C. Section 277

(1976), and the Fifth Amendment to the

Constitution.

i | ee

defendant contends, the controlling

statute in effect in 1980, when plaintiff

retired was 10 U.S.C. Section 3964 (1976),

which provided the following:

Each warrant officer of the

Army, and each enlisted member

of the Regular Army, who is

retired before or after this

title is enacted is entitled,

when his active service plus his

service on the retired list, for

totals 30 years, to be advanced

on the retired list to the

highest temporary grade in which

he served on active duty

satisfactorily, as determined by

the Secretary of the Army.

10 U.S. C. Section 3964 (1976)

This statute clearly required an Army

warrant officer who retired in 1980,

although eligible to retire after 20

years, to have completed 30 years of total

service in order to be advanced on the

retired list, for retirement pay purposes,

to the highest-temporary grade in which he

had served satisfactorily on active duty.

This is to be distinguished from

commissioned officers who, at the time

they are eligible to retire after 20

years, are entitled to be retired in the

highest grade in which they served

satisfactorily on active duty, in

accordance with 10 U.S.C. Section 1370

(1980 Supp. IV). Until 1986, when chief

warrant officers were granted commissioned

status, 10 U.S.C. Section 3964 controlled

the retirement pay rate of all Army

warrant officers who retired. 5/

In the case before the Court,

plaintiff voluntarily retired from the

Army on April 1, 1980, after only 20 years

5/ Section 531 of the Department

of Defense Authorization Act of 1986,

Pub. L. 99-145, 99 Stat. 633, finally gave

Army chief warrant officers prospective

official commissioned status. That

statute is codified in 10 U.S.C. Section

555(b) (1986). Nevertheless, Section 555(b)

was not in force at the time plaintiff

retired and, therefore, when this cause of

action arose in September of 1981. The 1986

statute was not made retroactive by its

terms and, therefore, does not apply to

plaintiff in this case.

of service. In accordance with the

statutory requirements of 10 U.S.C.

Section 3964, effective in 1980 at the

time of plaintiff's retirement, he could

only have been advanced on the retired

list to the grade of major in April of

1990, at which time he would have met the

30 year requirement.

This Court finds the clear meaning of

10 U.S.C. Section 3964, as well as of the

other relevant statutes and case law, to

be unambiguous and dispositive. As a

result, the Court does not find the need

to resort to the legislative history to

discern the statutory meaning.

Plaintiff's anthology of obsolete statutes

pertaining to military retirement does not

preclude the application of the general

rule for entitlement in military cases,

that a "Soldier's entitlement to pay [and

retirement benefits] is dependent upon

statutory rights." Bell v. United

States, 366 U.S. 393, 401 (1961). A. L.

Abbott v. United States, 200 Ct. Cl.

384, 389, cert. denied, 414 U.S. 1024

(1973) reh'g denied, 414 U.S. 1138

(1974). Plaintiff's entitlement to be

advanced to the highest grade in which he

served is proscribed by 10 U.S.C. Section

3964. Plaintiff's analysis of the

legislative history is neither persuasive

nor even germane to the case now before

the Court.

Plaintiff's argument primarily relies

on the Warrant Officer Act of 1954, 249,

68 Stat. 157, 163, repealed by Act of

August 10, 1956 (70A Stat. 641), which he

now argues gives him the right to be

retired with the highest retirement pay to

which he may be entitled under any other

law. Unfortunately for the plaintiff,

this statute was repealed in 1956, many

years before plaintiff's 1980 retirement.

Plaintiff's assertions that

;

eS a ee

uniformity between warrant officers of the

respective services regarding retirement

rights is mandated by the Army and Air

Force Vitalization and Equalization Act of

1948, and by the Warrant Officer Act,

supra, are also unpersuasive. Plaintiff

contends that Section 202 of the

Equalization Act, when read in conjunction

with Sections 14(d) and 14(f) of the

Warrant Officer Act, allows for his

retirement from the Army in the "highest

grade he has satisfactorily served" after

only twenty years of active service. 7/

7/ Section 14 of the Warrant

Officer Act provided in part that:

(ad) A warrant officer who is retired

under this section shall, as determined by

the Secretary, be retired in the permanent

warrant officer grade held on the day

before the date of his retirement, or in

any higher warrant officer grade in which

he has satisfactorily served, as

determined by the Secretary, on any full

time duty under competent orders

specifying that the period of such duty

shall be for a period in excess of thirty

days or for an indefinite period.

(£f) The provisions of this section or

section 13 shall not prevent any warrant

officer from electing to be placed on the

retired list in the highest and with the

highest retired pay to which he may be

entitled under any other law. 68 Stat.

163, 164 (1954).

Once again plaintiff relies on provisions

of statutes that have been repealed. See

Act of August 10, 1956, 1041, 70A Stat.

641, which repealed the provisions cited

by plaintiff of both the Warrant Officer

Act and the Equalization Act.

While in force, however, Section 202

of the Equalization Act provided that “any

officer" on the active list or of the

reserve components who had previously

completed 20 years of service, 10 of which

as a commissioned officer, could retire at

the higher commissioned officer retirement

rate. Section 202, however, did not,

specify by reference, warrant officers,

but rather used the term "officer"

generically. Plaintiff argues that the

reference to "officers" in Section 202

includes warrant officers which was

changed and limited to commissioned

officers during the 1956 codification of

Section 202 in 10 U.S.C. Section

NOE ENE DOD ERT URES

Pd A aa ia,

3911. 8/ Plaintiff points to Section

203(c) of the Equalization Act for

additional support.

Plaintiff also argues that Section

203(c) of the Equalization Act provides

for warrant officers to receive the same

retirement opportunities as regular

commissioned officers. Plaintiff's

argument is based upon a chronology of

legislative history which is inappropriate

to this Court's analysis in interpreting a

statute that is clear on its face. As was

noted above, for this case, 10 U.S.C.

Section 3964, which set out the

years-of-service reguirement for warrant

officers who retired from the Army in

8/ 10 U.S.C. Section 3911 (1976)

provides the following: The Secretary of

the Army may, upon the officer's request,

retire a regular or reserve commissioned

officer of the Army who has at least 20

years of service computed under section

3926 of this title, at least 10 years of

which have been active service as a

commissioned officer.

1980, is the controlling statute. The

Equalization Act, which previously

provided for retirement of officers in

more than one service, does not override

later provisions enacted by Congress to

provide solely for retirement of warrant

officers in the Army (13 U.S.C. Sections

1370-1371, Supp. IV, 1980) and 10 U.S.C.

Section 1364 (1976), or to change a

classification distinction, as Congress

did in Section 112 of the Defense Officer

Personnel Management Act, Pub. L. 96-513,

94 Stat. 2876. 10 U.S.C. Section i37e,

R372)

The applicable 1980 statutory

distinctions between warrant officers of

the Army and Air Force and warrant

officers of the Navy, Marines, and Coast

Guard, pertaining to retirement from each

of these services were Congressionally

created and codified into different

sections of the United States Code. In

ree rr eS

the Army and Air Force, warrant officers

in 1980 received their warrants from the

Secretary of the Army, and were not

commissioned by the Presideut of the

United States. Warrant officers of the

other services received commissions from

the President. 10 U.S.C. Section 555(b)

(1976). The statutory package, defining

the method of appointment,

responsibilities and rights of an Army

warrant officer is different from those

pertaining to members of the other

services.

In view of the codification of the

Equalization Act and the Warrant Officer

Act, there was no provision for retirement

by Army personnel at a higher grade,

without completing 30 years of service, or

retirement at some other grade, without

actually being at that grade on the date

retirement occurs. Consequently, 10

U.S.C. Section 3964 specifically provides

the applicable rule for warrant officer

retirement grade advancements in 1980,

when plaintiff retired, and has been

properly applied in this case.

Plaintiff argues that the

Congressional distinction which provides

for his retirement as a warrant officer

(and not as a major) is “unfairly

discriminatory" as compared to warrant

officers of other services. Plaintiff

relies upon 10 U.S.C. Section 277. 9/

Plaintiff suggests that 10 U.S.C. Section

277 mandates that a retiring Army warrant

officer, who leaves after twenty years of

service, ten of which were semmisateuad:

should be retired as a retiring

9/ Section 277 states: Laws

applying to both Regulars and Reserves

shall be administered without

discrimination--

(1) among Regulars;

(2) among Reserves; and

(3) between Regulars and Reserves.

10 U.S.C. Section 277 (1976)

iat itil ei

commissioned officer of like service time.

He claims that to do otherwise

HSN DRA Veli, sen ana

discriminates between regular and reserve

officers in violation of

10 U.S.C. Section 277. This argument,

however, appears to be an attempt to

| deflect from the real issue in this case

regarding the differing retirement rights

of warrant officers and regular

commissioned officers. 10 U.S.C. Section

277 only addresses distinctions between

the rights of regular and reserve

officers, which are not at issue in this

case.

Lastly, plaintiff attempts to assert

a constitutional challenge under the equal

protection clause of the Fifth Amendment.

Plaintiff tries to establish that the

differeing rules governing retirement

grade levels between Army warrant officers

and warrant officers of other services

with more favorable retirement rules is an

illegal classification, violative of the

Fifth Amendment equal protection right.

Without taking a position on the

issue of this Court's jurisdiction to

decide whether a statutory retirement

scheme, such as is at issue in this case,

violates the Fifth Amendment of the

Constitution, the Court would note that

plaintiff's claim in this regard is also

without merit. When a classification

scheme does not impermissibly interfere

with a fundamental right or operate to the

peculiar disadvantage of a suspect class,

such as race or religion, a Court need not

undertake strict judicial scrutiny of that

Classification. When application of the

strict scrutiny standard is inappropriate,

as would be the case here, the legislative

scheme is presumec to be valid and should

be sustained if the classification as

drawn by the statutes is rationally

related to a legitimate governmental

————

interest. Massachusetts Board of

Retirement v. Murgia, 427 U.S.307, 312,

314 (1976). 10/

The Court also notes that

classification of persons for determining

eligibility to receive benefits is not per

se invalid and "inevitably requires that

some persons who have an almost equally

strong claim to favored treatment be

placed on different sides of the line.”

Mathews v. Diaz, 426 U.S. 67, 83-84

(1976). How to draw such classification

lines for the receipt of benefits,

however, is a legislative not a judicial,

10/ Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307 (1976),

involved an equal protection challenge

under the Fourteenth Amendment. However,

it is well settled that the "[e])qual

Protection analysis in the Fifth Amendment

area is the same as that under the

Fourteenth Amendment." Buckley v. Valeo,

424 U.S. 1, 93 (1976); and Weinberger v.

Wiesenfeld, 420 U.S. 636, 638 n.2 (1975).

Thus, the application of the rationality

analysis is appropriate herein.

consideration. United States Railroad

Retirement Board v. Fritz, 450 U.S. 160,

179 (1980).

In the past, the Supreme Court has

held that a Congressicrally enacted

statute, requiring the registration for

possible military service of men, but not

women, did not violate the Fifth

Amendment, Rostker v. Goldberg, 453 U.S.

57 (1981), and has held that statutory

distinctions determining only certain

reservists as eligible for a military

retirement pay program was not violation

of Fifth Amendment equal protection

guarantees. Alexander v. Fioto, 430

U.S. 634 (1977). In Alexander, the

court indicated that "(t]he statutory

exclusion is unquestionably the product of

a deliberate and rational choice which

Congress had the constitutional power to

make." Id. at 640. It is equally clear

that the statutes which distinguished the

——_ a aaa

retirement pay rights of warrant officers

of the various services in force at the

time of plaintiff's retirement were not in

violation of the equal protection clause

of the Fifth Amendment and plaintiff can

state no claim to retirement pay based on

this argument.

Conclusion

Upon consideration of the oral

arguments and written submissions offered

by the parties, the plaintiff's motion for

summary judgment is denied and the

defendant's cross-motion fer summary

judgment is granted. The Court finds that

in plaintiff's case, his retirement grade

was properly set in accordance with 10

U.S.C. Section 3964 (1976). In 1980, when

plaintiff retired, warrant officers

seeking to upgrade their retirement grade

were required to have satisfactorily

served on active duty for at least thirty

years, a condition which plaintiff did not

meet.

The Clerk is directed to enter

judgment in accordance with the findings

herein. The parties shall each bear their

Own costs.

IT IS SO ORDERED.

Marian Blank Horn

Judge

DEPARTMENT OF THE ARMY

\ BOARD FOR CORRECTION OF MILITARY RECORDS

THE PENTAGON, WASHINGTON, D.C.

IN THE CASE OF: MCCARRON, NEIL F. UR.

013-26-0079

COUNSEL:

DATE: 23 September 1981

DOCKET NUMBER: AC81-04708

INDEX NUMBER: 129.04, 136.00

MEMORANDUM OF CONSIDERATION

I certify that hereinafter is

recorded the record of consideration of

the Army Board for Correction of Military

Records in the case of the above-named

individual. A quorum was present during

the consideration.

Present:

Mr. Oliver Kennedy, Chairman

Mr. Robert C. Best, Member

Mr. James F. MacDonald, Member

Mr. John W. Matthews, Executive Secretary

Mr. Loren G. Harrell, Examiner

The Board, established pursuant to

authority contained in 10 U.S.C. 1552,

convened at the call of the Chairman on

the above date. AR 15-185, the regulation

governing the operation of the Board,

rovides that each application and the

ue)

available military records pertinent to

the corrective action requested will be

reviewed to determine whether to authorize

a hearing, recommend that the records be

corrected without a hearing, or to deny

the application.

The Board may deny an application if

it det nines that insufficient relevant

evidence has been presented to demonstrate

the existence of probable material error

or injustice. Following consideration of

the case and having made its determination |

thereof, proceeded to other business.

Applicant requests correction of

military records as stated in application

to the Board and restated herein.

The Board considered the following

evidence:

Exhibit A - Application for correction of

military records

Exhibit B - Military personnel records

| 64

Grant Request

Formal Hearing

Deny w/o Hearing

MCCARRON, NEIL F. JR., 013-26-0079

APPLICANT REQUESTS: That he be retired

in the grade of major effective 1 April

1980; and that he be paid reasonable

attorneys fees for representing himself

and the class (sic).

APPLICANT STATES: That he was a

recently retired warrant officer who

previously served over 16 years as a

commissioned officer, and was retired as a

CW2, the grade he held at the time of his

retirement; that he had asked the Army

prior to retirement if he was entitled to

retirement in his higher grade of major,

but was told he did not qualify; that he

believes that the Army was in error in

their response to his inquiry, and that he

was in fact entitled by law to retire in

the grade in which he satisfactorily

served under the provisions of Section

202, P.L. 810, 80th Congress, as amended

in 1956, the Warrant Officer Act of 1954,

Title 10 USC Section 277, and the Fifth

Amendment to the Constitution of the

United States; that he was requesting that

the Board correct his records to reflect

his retirement in the highest grade in

which he satisfactorily served, the grade

of major, effective 1 April 1980 and that

he be awarded reasonable attorneys fees

for his representation on this issue, both

for himself and for members of the class;

that the petition was submitted in legal

brief form and consisted of six legal

issues, a statement of the case, and

thereafter, separate discussion of each

legal issue; that the separate discussion

of the legal issues also refers to

statutory material, legislative histories,

and minutes of hearings.

MATERIAL EVIDENCE OF RECORD:

Incorporated in this memorandum and

included by this reference are the

military and medical records which

reflect, in pertinent part:

The applicant, who had enlisted

service, not on active duty, in the USNR

from 9 Feb 55 through 16 Aug 59, was

appointed a 2LT, ODC, USAR, on 17 Aug 59,

upon graduation from SROTC University of

Wichita. He entered on active duty on 3l

Jan 60 and served until 5 Aug 76 when he

was discharged from commission in the

grade of MAJ with 16 years, 6 months and 5

days AFS due to his twice not being

selected for promotion to the grade of

LTC, USAR. He was appoined as a WOl on 6

Aug 76. He was promoted to the grade of

CW2 on 6 Oct 76 and was placed on the

Retired List in such grade on 1 Apr 80

with 20 years and 2 months AFS.

On 12 Jul 79, the applicant ina

letter to the Department requested a

determination of eligibility for

Retirement in the grade of MAJ, USAR, as

he had served as a commissioned officer

during his first 16 years of service and

held the grade of MAJ for more than 8

years; that he obtained an appointment as

a WO in 1976 in lieu of being separated

from the Army after having been twice

passed over for promotion from MAJ to LTC

in 1975 and 1976; that the general rule

pertaining to WO retirements was that WOs

retire in the highest grade held unless

entitled to a higher grade under some

other provisions of law; that retirement

in a higher grade, in cases where a higher

grade had been held, was deferred until

the WO achieved 30 years of service,

active and retired; that the Warrant

Officer Act of 1954, Section 14(d) also

stated that a WO retires in the highest WO

grade; that, however, Section 14(f)

contained provisions that allow a WO to

elect to be retired in the highest grade

and with the highest retired pay to which

he would be entitled under any other law;

that Public Law 88-130, 14 USC 334,

contained provisions that allow a WO to

retire in the highest commissioned grade

held; that since one of the purposes of

the Warrant Officer Act of 1954 was to

establish uniform retirement benefits for

WOs of all the services, and contained

provisions for retirement in the highest

grade and pay under any other law, he

requested a determination be made to

determine his eligibility for retirement

in the highest grade in which he

satisfactorily served under the combined

provisions of AR 635-100, the Warrant

Officer Act of 1954 and Public Law 88-130;

that it should be noted that WOs of the

Navy, Marine Corps and Coast Guard all

could be retired in a higher commissioned

grade under the provisions of 10 USC 6323

and Public Law 88-130; that, also, other

categories of Army personnel serving ina

lower grade prior to retirement, but who

previously held at least 10 years of

satisfactory service in a higher

cominissioned grade, were retired in the

higher grade under the provisions of AR

635-200 and AR 635-100; that it appeared

the difference in treatment between Army

WOs and WOs of the Navy, Marine Corps and

Coast Guard was contrary to the intent of

the Warrant Officer Act of 1954 to

establish uniform retirement benefits for

WOs of all services; and that the

difference in treatment between different

categories of Army personnel and WOs of

other services appeared to deny the Army

WOs who previously had satisfactorily

served in a higher commissioned grade

egual protection of the law.

a _

On 24 Sep 79, the Department advised

the applicant that during the Second

Session of the 83d Congress, hearings were

held by both the House Committee on Armed

Services (HASC) and the Senate Committee

on Armed Services (SASC) with respect to

H.R. 6374, the “Warrant Officer Act of

1954"; that testimony by various

representatives of the Defense Department

manifested that his view of the Act's

purpose as establishing uniform retirement

benefits for WOs of all the services was

not accurate; that the overell purpose of

the Act was to provide permanent statutory

career plans for WOs similar to that

provided for commissioned officers; that

further, the legislation was to accomplish

as much uniformity "as was believed

possible under current conditions of the

WO programs of the services"; that one of

the areas where it was recognized that

uniformity was not desirable was the

matter of commissioned WOs in the Navy,

Marine Corps and Coast Guard; that the Act

allowed this lack of uniformity to remain

in existence, and this resulted in the

different language relating to retired

grades for WOs in those services; that his

argument that he must be treated the same

as these warrants to fulfill the purpose

of the Act was thus unfounded; that it was

also pointed out during the hearings that

the Act was designed to provide a "career

program for the enlisted man . . . The

primary purpose . .. was after a period

of years a man develops a military

specialty and was then advanced to the wo

grade"; that thus he was in the WO program

under circumstances different from those

envisioned by the DOD framers of the Act;

that in fact, he was receiving a

substantial benefit by way of his WO

status as it allowed him to become

eligible for retirement regardless of his

promotion nonselections in a commissioned

Status which normally would have prevented

him from achieving retirement based on 20

years'active service; that the judicial

interpretation of equal protection of the

laws was not one of total equality for all

men, Or for all soldiers, or even for all

officers; that in its simplest terms, it

was that all persons similarly situated

should be treated the same under law; that

courts acknowledge and allow the different

treatment afforded different groups of

miiitary members, especially where their

entry into the military and their

personnei management were governed b

Giitrerent concepts; that he also stressed

the language found in almost all statutes

reiating to retired grade- "Unless

entitied to a higher retired grade under

some otner provision of law"; that this

sanguage did not mean that one was

)

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any time in the service under any

circumstances; that a specific provision

of law must exist which would provide for

retirement at a higher grade, usually

because of a continuing status in another

service component; that thus, a Regular

Army WO who simultaneously held a Reserve

commission coud qualify for retirement as

a commissioned officr under the provisions

of 10 USC 3911 if he had ten years’ active

A . ++ b ?

duty as a commissioned officer before

} } QD + 7 A ‘, 7 }

obtaining the Regular Army Warrant; that

in addition, many statutes condition

rari rend qrade a a ha st Secretar a na rrT

—— ae & w VA 4+ ure at allel ee ~~ ~ msi se 4

5f satisfactory service in that grade; and

lo c ~ rand + a A _ *

t at aa a- Case, a V Yo 5904 WOULCG app.y

when his active service plus his service

on the retired list totaled 30 years

ow -_ . =

rhe applicant's legal brief and

tracts Or aii statutes, iaws and

regulations ar attach for th Board's

review

On 25 Jun 81, Chief, Retirement

Branch, MILPERCEN, advised this Board that

a review of the applicant's OMPF and