B-128594, MAR. 28, 1963

B-128594, MAR. 28, 1963

TO MR. ELMER CARL WOODWARD:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 26, 1963, FROM KING AND KING REQUESTING RECONSIDERATION OF SETTLEMENT OF FEBRUARY 25, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF YOUR RETIRED PAY ON THE BASIS OF THE COURT OF CLAIMS DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710.

THE CLAIM WAS DENIED ON THE BASIS OF INFORMATION FURNISHED BY THE DEPARTMENT OF THE NAVY SHOWING THAT THE DISABILITY FOR WHICH YOU WERE PLACED UPON THE RETIRED LIST WAS NOT INCURRED WHILE YOU WERE ENTITLED TO RECEIVE ACTIVE DUTY PAY AS PRESCRIBED IN SECTION 402 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816. YOUR ATTORNEYS HAVE NOW FURNISHED A COPY OF A LETTER TO YOU FROM THE BUREAU OF MEDICINE AND SURGERY, NAVY DEPARTMENT, DATED JULY 18, 1947, IN WHICH IT IS STATED THAT YOU WERE PLACED ON THE RETIRED LIST ON 1 AUGUST 1940 BY REASON OF PHYSICAL DISABILITY "INCURRED IN THE LINE OF DUTY.' ALSO FURNISHED IS A COPY OF A LETTER TO YOU FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT,DATED OCTOBER 19, 1951, IN WHICH IT IS STATED IN PERTINENT PART THAT

"YOU WERE ERRONEOUSLY NOTIFIED BY PAYROLL COMPUTING FORM OF 12 OCTOBER 1951 THAT YOU ARE NOT ENTITLED TO THE PHYSICAL DISABILITY BENEFITS PROVIDED BY SECTION 411 OF PUBLIC LAW 351--- 81ST CONGRESS, APPROVED 12 OCTOBER 1949. IN REVIEWING YOUR ACCOUNT, WE FIND THAT YOU WERE PLACED ON THE RETIRED LIST PRIOR TO 1 OCTOBER 1949 BY REASON OF PHYSICAL DISABILITY INCURRED AS A RESULT OF ACTIVE SERVICE AND ACCORDINGLY, YOU DO COME WITHIN THE PURVIEW OF SECTION 411 OF PUBLIC LAW 351.

"BUREAU OF NAVAL PERSONNEL LETTER OF 9 OCTOBER 1951 SHOWING THE PERCENTAGE OF DISABILITY ASSIGNED IN YOUR CASE TO BE "ZERO," AND FORMS FOR YOUR USE IN MAKING AN ELECTION AS TO THE METHOD BY WHICH YOU WISH YOUR RETIRED PAY COMPUTED, ARE ENCLOSED.

"* * * SINCE YOUR PERCENTAGE OF DISABILITY IS ZERO, YOU ARE NOT ENTITLED TO PAY UNDER METHOD A * * *.'

YOU ARE PLAINTIFF NO. 34 IN THE CASE OF JUAN S. AFLAGUE, ET AL. V. UNITED STATES, CT.CL.NO. 212-56, NOW PENDING BEFORE THE COURT OF CLAIMS. MOTION TO DISMISS THAT ACTION WITH RESPECT TO YOU WAS FILED WITH THE DEPARTMENT OF JUSTICE, TO BE HELD IN ESCROW PENDING SETTLEMENT OF THE CLAIM PRESENTED TO OUR OFFICE. IN VIEW OF YOUR REQUEST FOR RECONSIDERATION OF THE SETTLEMENT OF FEBRUARY 25, 1963, IT IS ASSUMED THAT THE MOTION TO DISMISS REMAINS IN ESCROW.

THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON A REPORT DATED FEBRUARY 14, 1963, RECEIVED BY US FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, ADVISING THAT WHEN YOU ENLISTED AS AN APPRENTICE SEAMAN ON OCTOBER 11, 1915, A PHYSICAL EXAMINATION REVEALED THAT YOUR VISUAL ACUITY WAS 16/20 RIGHT EYE, AND 15/20 LEFT EYE. ON OCTOBER 19, 1931, YOU WERE GIVEN A PHYSICAL EXAMINATION INCIDENT TO YOUR TRANSFER TO THE FLEET NAVAL RESERVE AND RELEASE FROM ACTIVE DUTY; AT THAT TIME YOUR VISUAL ACUITY WAS 5/20 RIGHT EYE, AND 10/20 LEFT EYE. ON SEPTEMBER 18, 1939, YOU WERE GIVEN A PHYSICAL EXAMINATION TO DETERMINE YOUR FITNESS FOR RECALL TO ACTIVE DUTY; AT THAT TIME YOUR VISUAL ACUITY WAS RECORDED AS 4/20 RIGHT EYE, AND 7/20 LEFT EYE. AS A RESULT OF THIS LAST EXAMINATION AND REPORT OF PHYSICAL EXAMINATION DATED FEBRUARY 26, 1940, THE DATE YOU REPORTED FOR ACTIVE DUTY FOLLOWING OVER 8 YEARS OF INACTIVE SERVICE IN THE FLEET RESERVE, THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED TO THE BUREAU OF NAVIGATION THAT YOUR NAME BE PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY, MARKED DEFECTIVE VISUAL ACUITY, AND THAT YOU BE CLASSIFIED AS PHYSICALLY QUALIFIED FOR MOBILIZATION ASHORE. ACCORDINGLY, ON AUGUST 1, 1940, YOU WERE SO RETIRED.

THE BUREAU OF MEDICINE AND SURGERY THERE FURTHER REPORTED THAT YOUR CASE WAS REVIEWED BY THE PHYSICAL REVIEW COUNCIL ON AUGUST 29, 1951, PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT, AS AMENDED. HOWEVER, NO DISABILITY RATING WAS ASSIGNED, SINCE IT WAS THE COUNCIL'S OPINION THAT THE DISABILITY FOR WHICH YOU WERE RETIRED EXISTED PRIOR TO YOUR ENTRY INTO THE NAVAL SERVICE AND WAS NOT AGGRAVATED THEREBY INASMUCH AS THE CONDITION WAS ONE OF NATURAL PROGRESSION. IT WAS HELD THAT THE DISABILITY FOR WHICH YOU WERE RETIRED WAS NOT INCURRED WHILE YOU WERE ENTITLED TO RECEIVE BASIC PAY.

THE QUALIFICATIONS FOR DISABILITY RETIRED PAY UNDER THE CAREER COMPENSATION ACT OF 1949 WERE SET FORTH IN SECTION 402, WHICH CONTAIN IN SUBSECTIONS (A) AND (B) OF THAT SECTION THE REQUIREMENT THAT THE UNFITNESS FOR WHICH THE MEMBER WAS RETIRED BE BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY.

THE INFORMATION FURNISHED TO YOU BY THE DEPARTMENT OF THE NAVY THAT YOUR WERE ENTITLED TO MAKE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT WAS CORRECT ONLY IN THE SENSE THAT, SINCE YOU WERE TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY, YOU WERE WITHIN THE CLASSES OF PERSONS SPECIFIED IN SECTION 411 AS ENTITLED TO MAKE AN ELECTION UNDER THE PROVISIONS OF THAT SECTION, THAT IS, TO RECEIVE SAVED PAY UNDER FORMULA (A) OF SECTION 511 RATHER THAN UNDER SECTION 519, OR TO RECEIVE RETIRED PAY UNDER THE YEARS OF SERVICE FORMULA (METHOD (B) ( OF SECTION 511. ANY RIGHT TO DISABILITY RETIRED PAY UNDER METHOD (A) OF SECTION 411 (TO RECEIVE DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTION 402 OF THE SAME ACT) WAS NECESSARILY SUBJECT TO THE CONDITION PRESCRIBED IN SECTION 402 (A) AND (B) THAT THE DISABILITY BE INCURRED WHILE IN RECEIPT OF BASIC PAY.

WHILE IT IS TRUE THAT YOU COULD NOT HAVE EXERCISED A VALID METHOD (A) ELECTION TO RECEIVE DISABILITY RETIRED PAY UNDER SECTION 402 OF THE CAREER COMPENSATION ACT BASED ON THE PERCENTAGE OF DISABILITY (THE RECORDS SHOW THAT YOU WERE ADVISED IN NAVY DEPARTMENT LETTER OF OCTOBER 19, 1951, THAT RETIRED PAY UNDER THAT FORMULA WOULD BE ZERO), YOU WERE PERMITTED TO COMPLETE A FORM PURPORTING TO BE AN ELECTION OF RETIRED PAY BASED ON THE YEARS OF SERVICE FORMULA WITH OVER 22 YEARS' SERVICE FOR BASIC PAY PURPOSES. THE YEARS OF SERVICE FORMULA FOR COMPUTING RETIRED PAY IS CONTAINED IN BOTH SECTION 402 (D) AND SECTION 511 OF THE CAREER COMPENSATION ACT. THE RECORD SHOWS THAT ON OCTOBER 22, 1951, YOU ELECTED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF THE YEARS OF SERVICE FORMULA WITH OVER 22 YEARS' SERVICE FOR BASIC PAY PURPOSES MULTIPLIED BY 57 1/2 PERCENT, WHICH AMOUNTED TO $160.60 A MONTH.

HOWEVER, RESPECTING ELECTIONS UNDER SECTION 411, IT IS ESTABLISHED THAT IN ORDER FOR A RETIRED MEMBER TO CONTINUE TO ENJOY THE BENEFITS OF LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, NO ACTION WAS REQUIRED ON YOUR PART (SEE SECTION 519), WHEREAS, TO RECEIVE RETIRED PAY IN THE AMOUNT, WHICHEVER WAS THE GREATER, COMPUTED UNDER ONE OF THE METHODS PROVIDED IN SECTION 511, AN AFFIRMATIVE ELECTION WAS REQUIRED UNDER OPTION (B) OF SECTION 411 PRIOR TO OCTOBER 1, 1954. IT IS ALSO ESTABLISHED THAT RETIRED MEMBERS INELIGIBLE TO EXERCISE AN OPTION UNDER SECTION 411 WERE COVERED AUTOMATICALLY BY SECTION 511 OF THE ACT. SINCE YOU COULD NOT QUALIFY TO ELECT TO RECEIVE DISABILITY RETIRED PAY UNDER SECTION 402 OF THE ACT, AND ELECTED TO RECEIVE SUCH PAY UNDER THE YEARS OF SERVICE FORMULA, YOU MUST BE CONSIDERED AS HAVING ELECTED TO RECEIVE RETIRED PAY UNDER THE PROVISIONS OF SECTION 511.

THE NAVY FINANCE CENTER ADVISES THAT YOUR RETIRED PAY COMMENCING OCTOBER 1, 1949, WAS BASED ON YOUR RATING OF CSM AND 22 YEARS, 9 MONTHS AND 27 DAYS' SERVICE AT THE RATE OF $160.60 FOR THE PERIOD FROM OCTOBER 1, 1949, TO APRIL 30, 1952; $167.02 FOR THE PERIOD MAY 1, 1952, TO MARCH 31, 1955; $183.84 FOR THE PERIOD APRIL 1, 1955, TO MAY 31, 1958; AND AT THE RATE OF $194.92 FOR THE PERIOD FROM JUNE 1, 1958, TO DATE, INDICATING THAT YOU WERE PAID BY THE NAVY DEPARTMENT UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT. CREDIT FOR INACTIVE TIME IN THE FLEET RESERVE WAS PROPERLY OMITTED IN THE DETERMINATION OF YOUR BASIC PAY, SINCE SECTION 202 (B) OF THAT ACT PRECLUDES THE INCLUSION OF CREDIT FOR SUCH INACTIVE TIME IN COMPUTING RETIRED PAY EXCEPT AS PROVIDED IN TITLE IV OF THE ACT.

SINCE YOU DID NOT QUALIFY FOR TITLE IV BENEFITS, WE FIND NO BASIS FOR PAYMENT OF YOUR CLAIM UNDER THE SELIGA RULE. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 25, 1963, IS SUSTAINED.