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Duncan v. United States

Decided: November 13, 1991; As Corrected November 13, 1991.

BARMORE DUNCAN, STEVEN A. GARDNER, EDWARD Y. HALL, HARVEY W. RILEY, WALTER W. WELCH, III AND ROGER WINSLOW, PLAINTIFFS-APPELLANTS,
v.
THE UNITED STATES, DEFENDANT-APPELLEE



Appealed from: U.S. Claims Court; Judge Horn.

Newman, Circuit Judge, Bennett, Senior Circuit Judge, and Clevenger, Circuit Judge.

Clevenger

Barmore Duncan, Steven A. Gardner, Edward Y. Hall, Harvey W. Riley, Walter W. Welch, III, and Roger Winslow (Appellants) appeal the decision of the United States Claims Court granting the Government's motion to dismiss their causes of action for failure to state a claim upon which relief could be granted. Duncan v. United States, 22 Cl. Ct. 1 (1990). We affirm.

I

Appellants served both as Commissioned officers and as warrant officers in the United States Army. Each served on active duty as a commissioned officer for more than ten years and served overall more than twenty years. Each, however, was twice passed over for promotion to the next higher commissioned rank between 1978 and 1982. Following their respective non-selections for promotion, Appellants faced release from active duty under 10 U.S.C. § 3303 (1976), repealed and recodified by the Defense Officer Personnel Management Act of 1980, Pub. L. 96-513, 94 Stat. 2880, at 10 U.S.C. §§ 631-32 (1988), without accumulation of sufficient terms of service to claim entitlement to statutory retirement benefits.

In order to remain on active duty to complete twenty years of service, and thus qualify for statutory retirement benefits, Appellants applied for, were offered and accepted appointments as warrant officers. After serving three or more years as warrant officers and having accumulated over twenty years of total service, Appellants retired.

Upon retirement, Appellants were entered on the retired list at the grade of Chief Warrant Officer Two, pursuant to 10 U.S.C. § 1371, which provides that:

Unless entitled to a higher retired grade under some other provision of law, a warrant officer retires . . . in the . . . warrant officer grade . . . that he held on the day before the date of his retirement . . . .

10 U.S.C. § 1371 (1988).

In proceedings before the Army Board for Correction of Military Records (Board), Appellants contested their placement on the retired list in the grade of Chief Warrant Officer Two, the grade held the day before each of the respective retirements. They claimed that an "other provision of law" entitled them to a higher retired grade, namely 10 U.S.C. § 3911 (1976), which provides that:

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 . . ., at least 10 years of which have been active service as a commissioned officer.

10 U.S.C. § 3911 (1976), amended by National Defense Authorization Act for Fiscal Year 1991, Pub. L. 101-510, 104 Stat. 1562, codified at 10 U.S.C. § 3911 (Supp. II 1990).

The Board concluded that Appellants, retiring as warrant officers and not as commissioned officers, were properly placed on the retirement list under section 1371, and would be entitled to advancement in rank on the retirement list pursuant to 10 U.S.C. § 3964 (1976), which provides that:

Each warrant officer of the 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 the retired list to the highest temporary ...


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