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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988

## Text

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
V.
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

ii
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

(c) construed 10 USC 3911 to compel an
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

iv

vill

13

ERROR IN CONSTRUCTION OF:
10 USC 3964
10 USC 3911

10 USC 1371

CONCLUSION

30

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)

32

36

37

61
82
83
83
84
84
86
88
89
90
93
96

99

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

ix

18

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

14

18

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

27
18

24

14,21,29

14

‘

28

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

9
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

10

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

12

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).

13

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

14
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.

aa

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 ” ,

16

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

17
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

18

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

19
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.

20
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

21
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.

22
CONCEPTS of the bill is found:

"The bill in providing for a permanent
statutory career plan for warrant officers
establishes:

(c) Uniform retirement rights for
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

23
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

24

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"

25

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.

26

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

27
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

28
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)
wy
©

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

29

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

30
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

31

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.

a

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

35

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.

36

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

ae
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

37
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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38
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.

39
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

40
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.

41
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.

42
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.

43

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

GG

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

46
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.

47

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

48

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

;
3
;
i
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4
a
3
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7
;
9
i

eS a ee

49

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).

50

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

4
S
3
%
x
q
e
4
4

NOE ENE DOD ERT URES

Pd A aa ia,

ak
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.

52

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

53
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

54

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

55
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

56
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

————

57

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.

58

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

59
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

60
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

61
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

62

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

@
rH
rq

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.

63
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

a

65
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.

66

f

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.

67
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

68
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

69

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

|
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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 _

70

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

71
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

72
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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73
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

74
On 25 Jun 81, Chief, Retirement
Branch, MILPERCEN, advised this Board that
a review of the applicant's OMPF and
related documents revealed that his

highest active duty grade was MAJ, AUS;

that he was twice nonselected for
promotion to the temporary grade of LTC in
1975 and 1976; that Army Regulations
reguired that such officers be released
from active duty within 90 days of
notification of the second nonselection;
that rather than be seperated from the
Army without the chance of earning
retirement or returned to an enlisted
status, the applicant requested an
appointment as a Reserve WO; that in order
to accept the appointment, he had to

resign his Reserve commission, as no

individual can hold dual status in any
component; that he submitted his
unqualified resignation from the Army on 6

Aug 76; that as a result of his voluntary

75
request, he was placed on the retired
rolls of the Army effective 31 May 80, in
the grade of CW2 with 20 years and 2
months AFS; that when his combined service
and time on the retired lists equals 30
years, he will be advanced to the highest
grade satisfactorily held on active duty;
that his retirement processing in the
grade of CW2 was proper and correct in
accordance with 10 USC 1263/1371; and that
in view of the foregoing, it was their
Opinion that the applicant's claim was
without merit.

On 26 Aug 81, Acting Chief, Military
Personnel Law Branch, Administrative Law
Division, DAJA, advised this Board that it
was the opinion of their office that a WO
who retired pursuant to 10 USC 1293 for
length of service, as did the applicant,
will be retired as a WO in the grade
authorized by 10 USC 1371; that their

office was not aware of any other

76
provision of law which would allow the
applicant to retire in a grade above that
held at the time of his retirement; that
the arguments in the applicant's brief
were without legal merit; that
accordingly, the applicant's retirement as
a CW2 was proper under the applicable
statues; and that finally, under 10 USC
3964, he could be advanced to the grade of
MAJ when his total service (active duty
and retired) equals thirty years.

DISCUSSION: In consideration of all the

evidence, allegations, and information
presented by the applicant in relation to
the evidence of all the available records,
staff advisory opinion(s) as rendered in
the matter, and statutory and/or
regulatory provisions pertaining thereto,
it is concluded that:

1. The applicant, as a Reserve
commissioned Army officer, who, after

twice failed selection for promotion to

77
the grade of LTC, AUS, resigned his
commission to accept an appointment as a
Reserve Warrant Officer, is not entitled
to be retired in the grade of major upon
completion of 20 years service under the
provisions of the Army and Air Force
Vitalization and Retirement Act of 1948,
as amended in 1956.

2. Contrary to the applicant's
contention, the "Warrant Officer Act of
1954" allows for the lack of uniformity
between services to remain in existence.
The overall purpose of the Act was to
provide a permanent statutory plan for
warrant officers similar to that provided
for commissioned officers. Additionally,
the legislation was to accomplish as much
uniformity "as was believed possible under
current conditions of the warrant officer
programs of the services." In this
regard, one of the areas where it was

recognized that uniformity was not

78
desirable was in the matter of the
commissioned warrant officers in the Navy,
Marine Corps and Coast Guard. The Act
allowed this lack of uniformity to remain
in existence, and this resulted in the

different language relating to retired

grades for warrant officers in those
services. Accordingly, his assertion that
he is to be treated the same as these
warrants in accordance with the "1954 Act"
is without merit.

3. As noted in the letter to the
applicant from DCSPER, Congress in making
rules and regulations for the Armed Forces
has not always treated everyone the same.
Further, the judicial interpretation of
equal protection of the law is not one of
total equality for all men, or for all
soldiers, or even for all officers.
Therefore, it would appear, that by the
Department requiring the applicant to

serve 30 years on the active and retired

79
list before advancing him to the grade of
major, he is not being denied equal
protection of the law.

4. There is no discrimination between and
among regulars and reserves as provided
for in Title 10 USC Section 277 in
requiring officers such as the applicant
to not be retired in the highest
commissioned grade held for at least ten
years or more.

5. Based on the language of the
applicable laws and statutes, the
Secretary of the Army is not abusing his
discretionary powers in requiring the
applicant to serve a total of 30 years on
the active and retired list before
advancing him to the highest grade in
which he satisfactorily served.

6. In view of the foregoing, and the
evidence of record, it would appear that
the Secretary of the Army is supported by

the law in claiming that the legislature

80
recognized and approved of different
retirement provisions for warrant officers
depending on whether the source of
appointment was by a "commission" or by a
"warrant".

7. In view of the foregoing, there does
not appear to be a basis for the
retirement of the applicant in the grade
of major based on 20 or more years of
active Federal service and 10 or more
years of commissioned service. Further,
his rights have not been violated in any
respect in requiring him to serve until
his active service and service on the
retired list totals 30 years before
advancing him to the grade of major.
Accordingly, there is no basis on which to

correct his records as requested.

81

DETERMINATION: The applicant has failed

to submit sufficient relevant evidence to
demonstrate the existence of probable
material error or injustice to warrant a

formal hearing.

John W. Matthews

Executive Secretary

82

10 USC Section 277. Regular and reserve

components: discrimination prohibited.
Laws applying to both Regulars and
Reserves shall be administered without
discrimination--
(1) among Regulars;
(2) among Reserves; and
(3) between Regulars and Reserves.

Aug. 10, 1956, c. 1041, 70A Stat. 14.

83

10 USC Section 1293. Twenty years or

more: warrant officers

The Secretary concerned may, upon the
warrant officer's request, retire a
warrant officer of any armed force under
his jurisdiction who has at least 20 years
of active service that could be credited
to him under section 51ll of the Career
Compensation Act of 1949, as amended (70
Stat. 114). (Aug. 10, 1956, c. 1041, 70A
Stat. 101; Sept 7, 1962, Pub.L. 87-649,

Section 6(1)(3), 76 Stat. 494.)

10 USC Section 1371. Warrant officers:

general rule

Unless entitled to a higher retired
grade under some other provision of law, a
warrant officer retires, as determined by
the Secretary concerned, in the permanent
regular or reserve warrant officer grade,

if any, that he held on the day before the

date of his retirement, or in any higher

84

warrant officer grade in which he served
on active duty satisfactorily, as
determined by the Secretary, for a period
of more than 30 days. (Aug. 10, 1956, c.

1041, 70A Stat. 104.)

10 USC Section 39il. Twenty years or

more: regular or reserve commissioned
officers

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.

(Aug. 10, 1956, c. 1041, 70A Stat. 224.)

10 USC Section 3918. Thirty years or

more: regular commissioned officers

A regular commissioned officer of the

Army who has at least 30 years of service

85
computed under section 3926 of this title
{10 USC Section 3926] may be retired upon
his request, in the discretion of the
President.

(Aug. 10, 1956, ch 1041, Section 1, 70A

Stat. 226.)

HISTORY; ANICILLARY LAWS AND DIRECTIVES
Prior law and revision:
Revised Section: 3918
Source (U.S. Code) 10:943.
Source (Statutes at Large) R.S. 1243;
Dec, 16, 1930, ch 14, Section 1 (as
applicable to R.S. 1243), 46 Stat. 1028.
The word “commissioned” is inserted,
Since the retirement of warrant officers
for length of service is covered by 10
USCS Section 1293. The word “regular” is
inserted, since 10:943 is applicable
historically only to officers of the
Regular Army. The words “and placed on

the retired list” are omitted as

surplusage. The words “computed under

86

section 3926 of this title" are inserted

for clarity.

10 USC Section 3926. Computation of years |

of service: voluntary retirement; regular
and reserve commissioned officers

(a) For the purpose of determining
whether an officer of the Army may be
retired under section 3911, 3918, or 3924
of this title, his years of service are
computed by adding--

(1) all active service performed
as a member of the Army or the Air
Force;

(2) all service in the Navy or
Marine Corps that may be included in
determining the eligibility of an
officer of the Navy or Marine Corps
for retirement;

(3) all service computed under

section 3683 of this title; and

(4) if an officer of the Regular

87

Army, all active service performed as

an officer of the Phillippine

Constabulary.

(b) For the purpose of determining
whether a commissioned officer of the
Regular Army in the Medical Corps may be
retired under section 3911, 3918, or 3924
of this title, his years of service are
computed by adding to his service under
subsection (a) all service performed as a
contract surgeon, acting assistant
surgeon, or contract physician, under a
contract to serve full time and to take
and change station as ordered.

(c) For the purpose of determining
whether a commissioned officer of the
Regular Army in the Dental Corps may be
retired under section 3911, 3918, or 3924
of this title, his years of service are
computed by adding to his service under
subsection (a) all service as a contract

dental surgeon or acting dental surgeon.

88

(Aug 10, 1956, c. 1041, 7OA Stat. 228.)

10 USC Section 3963. Higher grade for

service during certain periods: regular
and reserve commissioned officers

(a) A regular commissioned officer who
is retired, or a reserve commissioned
officer who is retired or to whom retired
pay is granted, is entitled to a retired
grade equal to the highest temporary grade
in the Army in which he served on active
duty satisfactorily, as determined by the
Secretary of the Army, for not less than
six months.

(b) Upon retirement, a member of the
Regular Army in the Army Nurse Corps or
Army Medical Specialist Corps who was (1)
a member of the Army Nurse Corps
established by the Act of July 9, 1918,
ch. 143 (40 Stat. 879), (2) a female
dietitian or physical therapist appointed

under the Act of December 22, 1942, ch.

89
805 (56 Stat. 1072), or (3) a female
officer appointed under the Act of June
22, 1944, ch. 272 (58 Stat. 324), is
entitled to a retired grade equal to the
highest grade or relative rank in which
she served on active duty satisfactorily,
as determined by the Secretary, after
September 8, 1940, and before July l,
1946. (Aug. 10, 1956, c. 1041, 70A Stat.
230; Sept. 2, 1958, Pub.L. 85-861,
Section 1(60), (100), 72 Stat. 1462,

1489.)

10 USC Section 3964. Higher grade after

30 years of service: Army warrant
officers; regular enlisted members

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 totals 30 years, to be advanced on

90

the retired list to the highest temporary
grade in which he served on active duty
satisfactorily, as determined by the
Secretary of the Army. (Aug. 10, 1956,
©. 1041, 70A Stat. 231; Sept. 2, 1958,
Pub.L. 85-861, Section 1(100), 72 Stat.

1489.)

10 USC Section 6323. Officers: 20 years

(a) An officer of the Navy or the
Marine Corps who applies for retirement
after completing more than 20 years of
active service, of which at least 10 years
was service as a commissioned officer,
may, in the discretion of the President,
be retired on the first day of any month
designated by the President.

(b) For the purposes of this section--

(1) an officer's years of active
service are computed by adding all
his active service in the armed

forces; and

91
(2) his years of service as a
commissioned officer are computed by

adding all his active service in the

armed forces under permanent or
temporary appointments in grades
above warrant officer, W-l.

(c) Uniess otherwise entitled to a
higher grade, each officer retired under
this section shall be retired--

(1) ain the highest grade,
permanent or temporary, in which he
served satisfactorily on active duty
as determined by the Secretary of the
Navy; or

(2) if the Secretary determines
that he did not serve satisfactorily
in his highest temporary grade, in
the next lower grade in which he has
served, but not lower than his
permanent grade.

(ad) A warrant officer who retires

under this section may elect to be placed

92
on the retired list in the highest grade
and with the highest retired pay to which
he is entitled under any provision of this
title. If the pay of that highest grade
is less than the pay of any warrant grade
satisfactorily held by him on active duty,
his retired pay shall be based on the
higher pay.

(c) Unless otherwise entitled to
higher pay, an officer retired under this
section is entitled to retired pay at the
rate of 2 1/2 percent of the basic pay to
which he would be entitled if serving on
active duty in the grade in which retired
multiplied by the number of years of
service that may be credited to him under
section 1405 of this title, but the
retired pay may not be more than 75
percent of the basic pay upon which the
computation of retired pay is based.

(f) Officers of the Naval Reserve and

the Marine Corps Reserve who were

nT ee

93
transferred to the Retired Reserve from an
honorary retire list under section 213(b)
of the Armed Forces Reserve Act of 1952
(66 Stat. 485), or are transferred to the
Retired Reserve under section 6327 of this
title, may be retired under this section,
notwithstanding their retired status, if
they are otherwise eligible. (Aug. 10,
1956, c. 1041, 7OA Stat. 394; Sept. 2,
1958, Pub.L. 85-861, Section 1(142), 72

Stat. 1509.)

10 USC Section 6325. Officers: retired

grade and pay
(a) Except as provided in subsection
(b), each officer who is retired under
section 6321 or 6322 of this title--
(1) unless otherwise entitled to
a higher grade, shall be retired in
the grade in which he was serving at

the time of retirement; and

(2) unless otherwise entitled to

94
higher pay, is entitled to retired
pay at the rate of 2 1/2 percent of
the basic pay to which he would be
entitled if serving on active duty in
the grade in which retired multiplied
by the number of years of service
that may be credited to him under
section 1405 of this title, but the
retired pay may not be more than 75
percent of the basic pay upon which
the computation of retired pay is
based.

(b) Each officer who is retired while
serving in the grade of admiral, vice
admiral, general, or lieutenant general by
virtue of an appointment under section
5231 or 5232 of this title or who is
retired while serving in a grade to which
he was appointed under section 5597 of
this title or promoted under section 5787

of this title--

(1) unless otherwise entitled to

95
a higher grade, shall be retired in
the grade he would hold if he had not

received such an appointment; and

(2) unless otherwise entitled to
higher pay, is entitled to retired
pay at the rate of 2 1/2 percent of
the basic pay to which he would be
entitled if serving on active duty in
the grade he would hold if he had not
received such an appointment
multiplied by the number of years of
service that may be credited to him
under section 1405 of this title, but
the retired pay may not be more than
75 percent of the basic pay upon
which the computation of retired pay
is based.

(c) A warrant officer who retires
under section 6321, 6322, or 6323 of this

title may elect to be placed on the

retired list in the highest grade and with

the highest pay to which he is entitled

96
under any provision of this title. If the
pay of that highest grade is less than the
pay of any warrant grade satisfactorily
held by him on active duty, his retired
pay shall be based on the higher pay.
(Aug. 10, 1956, c. 1041, 70A Stat. 394;
May 20, 1958, Pub.L. 85-422, Section
(a) (b) (B), 71 Stat. 131, Sept. 2, 1958,
Pub.L. 85-861, Section 1(143), 72 Stat.

1509.)

10 USC Section 555. Warrant officers:

grades

(a) The regular warrant officer grades
in each armed force corresponding to the
pay grades prescribed for warrant officers
by section 201(b) of title 37 [37 USCS
Section 201(b)}] are as follows: Warrant
officer grade: [Unchanged]

(b) Permanent appointments of regular

warrant officers, W-1, shall be made by

warrant by the Secretary concerned.

97
Permanert appointments of regular chief
warrant officers shall be made by
commission by the President.
(As amended Nov. 8, 1985, P.L. 99-145,
Title V, Part D, Section 53l(a), Title
XIII, Section 1303(a)(5), 99 Stat. 633,

739.)

10 USC Section 555. Warrant officers:

grades

(a) The regular warrant officer grades
in each armed force corresponding to the
pay grades prescribed for warrant officers
by section 20l(c) of title 37 [37 USCS
Section 20l(c)] are as follows:
Warrant officer grade:
Chief warrant officer, W-4
Chief warrant officer, W-3
Chief warrant officer, W-2
Warrant officer, W-1

(b) Appointments of regular chief

warrant officers of the Army and the Air

98
Force shall be made by warrant by the
Secretary concerned. Permanent
appointments of regular chief warrant
officers of the Navy, Marine Corps, and
Coast Guard shall be made by commission by
the President, by and with the advice and
consent of the Senate. Permanent
appointments of regular warrant officers,
W-1, shall be made by warrant by the
Secretary concerned. (Aug. 10, 1956, ch
1041, Section 1, 70A Stat. 20; Sept. 7,
1962, P.L. 87-649, Sections 6(f) (2),
14(c) (2), 76 Stat. 494, 501; July 30,
1977, P.L. 95-79, Title III, Section

302(a) (4), 91 Stat. 326.

99
NAVY, MARINE CORPS, COAST

GUARD--RETIREMENT OF PERSONNEL
CHAPTER 34--PUBLIC LAW 305
[S. 1405)

An Act to authorize the President to
retire certain officers and enlisted men
of the Navy, Marine Corps, and Coast
Guard, and for other purposes.

Sec. 6. When any officer of the
Regular Navy or the Regular Marine Corps
or the Reserve Components thereof
including any member of the Naval service,
temporarily appointed to commissioned
officer grade, whose permanent status is
enlisted, has completed more than twenty
years of active service in the Navy,
Marine Corps, or Coast Guard, or the
Reserve Components thereof, including
active duty for training, at least ten
years of which shall have been active
commissioned service, he may at any time

thereafter, upon his own application, in

100
the discretion of the President, be placed
upon the retired iist on the first day of

such month as the President may designate.

101

ARMY AND AIR FORCE VITALIZATION AND

RETIREMENT EQUALIZATION ACT OF 1948

Sec. 202. That portion of section 5 of
the Act of July 31, 1935 (49 Stat. 507),
as amended by section 3 of the Act of June
13, 1940 (54 Stat. 380; 10 U.S.C. 943a,
971b), ending with the colon following the
first proviso thereof is hereby further
amended to read as follows: "That any
officer on the active list of the Regular
Army, the Regular Air Force, or
Phillippine Scouts or any officer of the
reserve components of the Army of the
United States or of the Air Force of the
United States who shall have completed not
less than twenty or more than thirty
years' active Federal service in the armed
forces of the United States, at least ten
winate of which shall have been active
commissioned service, may in the
discretion of the Secretary of the Army or

the Secretary of the Air Force, as the

102
case may be, be retired upon his own

application.

(c) That section 5 of the Act approved
August 21, 1941 (55 Stat. 653), is hereby
amended to read as follows:

"Sec. 5. Warrant officers shall be
entitled to retirement under the same
conditions as commissioned officers:
Provided, That hereafter warrant officers
may, in the discretion of the Secretary of
the Army or the Secretary of the Air
Force, whichever may be concerned, be
retired after twenty years of active
service: Provided further, That a warrant
officer retired after twenty years of
active service shall receive retired pay
at the rate of 2 1/2 per centum of the
annual active duty base and longevity pay
at the time of retirement multiplied by
the number of years of service credited

for longevity pay purposes and not to

103

exceed 75 per centum of such annual,
active duty base and longevity pay:
Provided further, That a fractional year
of six months or more shall be considered
a full year in computing the number of
years' service by which the rate of 2 1/2
per centum is multiplied: And provided
further, That any warrant officer
heretofore or hereafter retired under any
provision of law shall upon the completion
of thirty years' service, to include the
sum of his active service and his service
on the retired list, be advanced on the
retired list to the highest temporary
officer, flight officer, or warrant
officer grade satisfactorily held by him
while serving on active duty as determined
by the cognizant Secretary during the
period September 9, 1940, to June 30,
1946, and shall receive retired pay at the
rate prescribed by law computed on the

basis of the base and longevity pay which

104
he would receive if serving on active duty
in such higher grade at the time of
retirement: And provided further, That
any warrant officer, heretofore or
hereafter retired for disability incident
to service, if entitled to advanced
retired grade and increased retired pay
under the provisions of this title, shall
receive such advanced grade and increased
pay effective upon the enactment of this
title or upon his retirement, whichever is

later."

(e) Each enlisted man of the Regular
Army or the Regular Air Force heretofore
or hereafter retired under any provision
of law, shall upon the completion of
thirty years of service, to include the
sum of his active service and his service
on the retired list, be advanced to the
highest temporary commission, warrant, or

enlisted grade satisfactorily held by him

105

while serviing on active duty, as
determined by the cognizant Secretary,
during the period September 9, 1940, to
June 30, 1946, and shall receive
retirement pay at the rate prescribed by
law for his length of service at the time
of retirement but based upon such higher
temporary rank or grade: Provided, That
any enlisted man heretofore or hereafter
retired for disability incident to
service, if entitled to advanced retired
grade and increased retired pay under the
provisions of this title, shall receive
such advanced grade and increased pay
effective upon the enactment of this Act
Or upon his retirement, whichever is

later.

Sec. 205. (a) The Secretary of the Army
and the Secretary of the Air Force may
promulgate for their respective services

such regulations as may be necessary to

106
carry into effect the provisions of this
title.

(b) 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. No back pay or
allowances prior to the date of enactment
of this title shall accrue to any person

by reason of the enactment thereof.

107

WARRANT OFFICER ACT OF 1954

May 7 (legislative day, April 14), 1954.--

Ordered to be printed

Mr. Saltonstall, from the Committee on
Armed Services, submitted the following
REPORT
[To accompany H.R. 6374]

It should be noted that one basic
difference between the warrant officer
systems of the Navy, Marine Corps, and
Coast Guard, on the one hand, and the Army
and Air Force, on the other, would be
continued in this bill. Under existing
law the 3 former services have
commissioned warrant officers while the
latter 2 do not. The Army and Air Force
consider that it would be an
administrative handicap to change to
commissions for the top three warrant

officer grades and desire to continue

108

their present system of issuing warrants
for all grades of warrant officers. On
the other hand, it would adversely affect
the morale of Navy, Marine Corps, and
Coast Guard personnel to take away
commissions already held by them. Since
no inequities would result from
continuation of this difference, the
services would be permitted under the
proposed legislation to continue their

present systems in this respect.

109

(No. 68)
SUBCOMMITTEE HEARINGS ON H. R. 6374, TO
REVISE CERTAIN LAWS TO WARRANT OFFICERS OF
THE ARMY, NAVY, AIR FORCE, MARINE CORPS,
AND COAST GUARD, AND FOR OTHER PURPOSES
House of Representatives,
Committee on Armed Services
Subcommittee No. 2
Washington, D.C., Wednesday

March 3, 1954.

Q. (MR. BLANCHARD) Now, this applies only
to -- I will retract that. This applies
to any warrant officer who is retired,
but it only gives him the highest
retired warrant officer pay. He will
have to go to other provisions of law in
order to qualify for commissioned
officer's pay on the retired list. Now,

does this in any way take away any

benefit or privilege that a warrant

110

officer may have to be advanced under

another provision of law to commissioned

retired status?
(MR. RICHARDS) That follows.
(COL. HAMRICK) There is a savings

provision later on in that respect.

111

Request for Admission No. 2(a)

Q. Do you admit or deny that warrant
officers of the Navy, Marine Corps and
Coast Guard who apply for retirement after
completing more than 20 years of active
service of which at least 10 years was
service as a commissioned officer may be
immediately retired in the highest
commissioned officer grade in which they
satisfactorily served?

A. Admit.

Request for Admission No. 28

Q. Do you admit or deny that section
202 of the Army and Air Force Vitalization
and Retirement Act of 1948 (as amended)
has been cited in Senate Report 2019, 84th
Congress 2d session and used as the
authority to advance a group of
individuals previously retired as enlisted

persons and Warrant officers, to the

highest commissioned grade in which they

112

satisfactorily served, because they had
served for over 20 years, 10 years of
which were commissioned?

A. Admit.

Request for Admission No. 11

Q. Do you admit or deny that the
Warrant Officer Act of 1954 prohibits any
discrimination in the determination of
retired grades for the warrant officers of
the various services to be based on the
form of their appointment as a Warrant
officer?

A. Admit.

Request for Admission No. 21

Q. Do you admit or deny that the
provisions of section 203(E) of the Army
and Air Force Vitalization and Retirement
Act of 1948, provides that Army enlisted
men, retiring for length of service, will

not be advanced to the highest

113
commissioned officer rank in which their
service was satisfactory until their total
service, (active and retired) equals
thirty years?

A. Admit.

Request for Admission No. 23

Q. Do you admit or deny that the
provisions of section 203(E) of the Army
and Air Force Vitalization ane Retirement
Act of 1948, do not prevent an Army
enlisted man from immediate retirement in
a higher commissioned grade if he
qualifies for retirement as a commissioned
officer under the provisions of section
202 of the Army and Air Force Vitalization

and Retirement Act of 1948, as amended?

A. Admit.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2078%3A1. Public record. Not legal advice.