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B-148824, JUN. 7, 1962

B-148824 Jun 07, 1962
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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF APRIL 23. WAS ERRONEOUS IN THAT IT ALLOWED HIM ADDITIONAL RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1. YOU SAY THAT THE REQUEST FOR REFUND WAS BASED UPON THE CONCLUSION OF OUR CLAIMS DIVISION THAT ADDITIONAL ACTIVE SERVICE PERFORMED DURING THE KOREAN WAR BY A MEMBER OF THE FLEET RESERVE COULD NOT BE UTILIZED TO INCREASE HIS RETIRED PAY UNDER SECTION 218 OF THE NAVAL RESERVE ACT OF 1938. FOR RETAINER OR RETIRED PAY PURPOSES AND IS NOT LIMITED TO ACTIVE SERVICE PERFORMED DURING WORLD WAR II. AFTER POINTING OUT THAT THE SERVICE IN QUESTION WAS PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY EXECUTIVE PROCLAMATION 2914. WAS CORRECT AND THAT THE DEMAND FOR REFUND OF THE SUM OF $84.14 SHOULD BE WITHDRAWN.

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B-148824, JUN. 7, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1962, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MARCH 28, 1962, IN DETERMINING THAT THE SETTLEMENT MADE TO WILLIAM L. HILDEBRAND ON JANUARY 17, 1962, WAS ERRONEOUS IN THAT IT ALLOWED HIM ADDITIONAL RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO MARCH 31, 1955, AND IN DEMANDING REFUND OF THE SUM OF $84.14 ALLOWED FOR THAT PERIOD.

YOU SAY THAT THE REQUEST FOR REFUND WAS BASED UPON THE CONCLUSION OF OUR CLAIMS DIVISION THAT ADDITIONAL ACTIVE SERVICE PERFORMED DURING THE KOREAN WAR BY A MEMBER OF THE FLEET RESERVE COULD NOT BE UTILIZED TO INCREASE HIS RETIRED PAY UNDER SECTION 218 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 994, UPON HIS TRANSFER TO THE RETIRED LIST AFTER THE COMPLETION OF 30 YEARS' SERVICE, AND HIS ADVANCEMENT TO THE HIGHEST TEMPORARY RANK IN WHICH HE HAD SERVED SATISFACTORILY. YOU ALSO SAY THAT SECTION 208 AUTHORIZES THE CREDITING OF ALL ACTIVE SERVICE, EXCEPT TRAINING DUTY, PERFORMED AFTER JULY 1, 1925, FOR RETAINER OR RETIRED PAY PURPOSES AND IS NOT LIMITED TO ACTIVE SERVICE PERFORMED DURING WORLD WAR II. AFTER POINTING OUT THAT THE SERVICE IN QUESTION WAS PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY EXECUTIVE PROCLAMATION 2914, YOU SAY THAT THE AWARD OF THE ADDITIONAL RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO MARCH 31, 1955, WAS CORRECT AND THAT THE DEMAND FOR REFUND OF THE SUM OF $84.14 SHOULD BE WITHDRAWN.

PRIOR TO OCTOBER 1, 1949, A MEMBER OF THE FLEET RESERVE WHO PERFORMED ACTIVE DUTY AFTER TRANSFER OR RETIREMENT (OTHER THAN THAT REQUIRED TO BE PERFORMED IN TIME OF PEACE UNDER SECTION 216 OF THE NAVAL RESERVE ACT OF 1938) HAD HIS RETAINER OR RETIRED PAY RECOMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 208 OF THAT ACT, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. (1952 ED.) 854G. SECTION 208 WAS EXPRESSLY REPEALED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 669. HOWEVER, COMMENCING OCTOBER 1, 1949, SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, ALSO PROVIDED FOR INCREASE IN RETIRED OR RETAINER PAY FOR A MEMBER OF THE FLEET RESERVE WHO PERFORMED ACTIVE DUTY AFTER TRANSFER. THAT SECTION PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES, INCLUDING MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, WHO HAVE BEEN, OR MAY HEREAFTER BE, RETIRED OR TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY COMPUTED UNDER THE PROVISIONS OF THIS OR ANY OTHER ACT, SHALL BE ENTITLED, SUBJECT TO THE PROVISIONS HEREINAFTER LISTED, TO RECEIVE INCREASES IN SUCH RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY FOR ALL ACTIVE DUTY PERFORMED AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE: PROVIDED, THAT THE RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY TO WHICH SUCH MEMBER OR FORMER MEMBER SHALL BE ENTITLED UPON HIS RELEASE FROM ACTIVE DUTY SHALL BE COMPUTED BY MULTIPLYING THE YEARS OF SERVICE CREDITABLE TO HIM FOR PURPOSES OF COMPUTING RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR EQUIVALENT PAY AT THE TIME OF HIS RETIREMENT OR TRANSFER PLUS THE NUMBER OF YEARS OF SUBSEQUENT ACTIVE DUTY PERFORMED BY HIM BY 2 1/2 PERCENTUM, AND BY MULTIPLYING THE PRODUCT THUS OBTAINED BY THE BASE AND LONGEVITY PAY OR THE BASIS PAY, AS THE CASE MAY BE, OF THE RANK OR GRADE IN WHICH HE WOULD BE ELIGIBLE, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, TO BE RETIRED OR TRANSFERRED EXCEPT FOR THE FACT THAT HE IS ALREADY A RETIRED PERSON OR A MEMBER OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE * * *.'

IN VIEW OF THE SPECIFIC FORMULA FOR RECOMPUTING RETAINER AND RETIRED PAY CONTAINED IN SECTION 516, WE HELD THAT IT SUPERSEDED THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938. SEE 39 COMP. GEN. 217 AT PAGE 218.

IN OUR DECISION DATED JULY 10, 1953, B-115502, 33 COMP. GEN. 17, 19, WHEREIN REFERENCE WAS MADE TO A PRIOR DECISION, 31 COMP. GEN. 547, WE SAID THAT, UNLESS THE COMPUTATION OF RETIRED OR RETAINER PAY IN ACCORDANCE WITH THE METHOD PRESCRIBED IN SECTION 516 RESULTS IN AN INCREASE IN THE AMOUNT OF RETIRED OR RETAINER PAY THAT WAS BEING RECEIVED PRIOR TO THE IMMEDIATELY PRECEDING PERIOD OF ACTIVE DUTY, THE PROVISIONS OF SECTION 516 ARE INOPERATIVE AND DO NOT REQUIRE THE PAYMENT OF A LESSER AMOUNT OF RETIRED OR RETAINER PAY THAN THAT THERETOFORE RECEIVED, AND THAT THE SAME REASONING WOULD APPLY TO A CASE WHERE THE APPLICATION OF THE PROVISIONS OF SECTION 516 WOULD PREVENT A MEMBER FROM RECEIVING A HIGHER RATE OF RETIRED PAY TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT SERVED ON ACTIVE DUTY SUBSEQUENT TO HIS TRANSFER TO THE FLEET RESERVE, EVEN THOUGH HE WAS NOT ENTITLED TO RECEIVE SUCH RETIRED PAY AT THE TIME HE WAS CALLED TO ACTIVE DUTY. IN THAT CASE WE HELD THAT THE SERVICE MEMBER INVOLVED, WHO HAD SERVED ON ACTIVE DUTY AFTER OCTOBER 1, 1949, WAS ENTITLED, UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, TO HAVE HIS RETIRED PAY COMPUTED ON THE SAME BASIS THAT HIS RETAINER PAY WAS COMPUTED BEFORE HE ENTERED ON SUCH ACTIVE DUTY, BUT BASED ON THE RATE OF PAY PERTAINING TO THE HIGHER RANK TO WHICH HE WAS ADVANCED AT THE TIME OF HIS RETIREMENT. IN OTHER WORDS, WE HELD THAT ACTIVE DUTY PERFORMED AFTER OCTOBER 1, 1949, MAY NOT, IN SUCH CIRCUMSTANCES, BE USED TO INCREASE RETIRED PAY OR RETAINER PAY UNLESS SUCH PAY IS COMPUTED AS PROVIDED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949. COMPARE ALSO 38 COMP. GEN. 843, 846.

IT APPEARS THAT MR. HILDEBRAND, WHILE SERVING AS AN ENLISTED MAN OF THE UNITED STATES NAVY, WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F4D, IN THE RATING OF CHIEF GUNNER'S MATE, ON DECEMBER 12, 1945, HAVING AT THAT TIME COMPLETED 21 YEARS, 4 MONTHS, AND 6 DAYS OF SERVICE FOR PAY PURPOSES. HE WAS RECALLED TO ACTIVE DUTY EFFECTIVE SEPTEMBER 6, 1950, AND RELEASED TO INACTIVE STATUS ON MAY 29, 1953, AT WHICH TIME HE HAD COMPLETED 24 YEARS AND 1 MONTH OF ACTIVE SERVICE. IT ALSO APPEARS THAT ON SEPTEMBER 1, 1954, HE WAS PLACED ON THE RETIRED LIST OF ENLISTED MEN OF THE NAVY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. (1952 ED.) 854B; AND ON THE SAME DATE, UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. (1952 ED.) 350I (B) (2), HE WAS ADVANCED TO THE COMMISSIONED WARRANT OFFICER RANK OF CHIEF WARRANT OFFICER (W-2).

THE RECORDS INDICATE THAT UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, MR. HILDEBRAND, ON SEPTEMBER 5, 1950, THE DAY PRECEDING THE EFFECTIVE DATE OF HIS RECALL TO ACTIVE DUTY, WAS IN RECEIPT OF RETAINER PAY IN THE AMOUNT OF $154.28 A MONTH, REPRESENTING ONE-HALF OF THE BASE PAY OF ENLISTED PAY GRADE 1 ($82.50), WITH LONGEVITY CREDIT ($57.75) FOR 21 YEARS OF SERVICE, PLUS 10 PERCENT ($14.03) FOR GOOD CONDUCT. HIS RETAINER PAY EFFECTIVE MAY 30, 1953, COMPUTED AS PRESCRIBED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, AMOUNTED TO $174.28 A MONTH, I.E., 60 PERCENT (24 YEARS TIMES 2 1/2 PERCENT) OF $290.47, THE BASIC PAY OF A CHIEF PETTY OFFICER IN PAY GRADE E-7 WITH OVER 24 YEARS OF SERVICE. HE WAS PAID RETAINER PAY AT THAT RATE FROM MAY 30, 1953, TO AUGUST 31, 1954. UPON HIS TRANSFER TO THE RETIRED LIST HE WAS ENTITLED, UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, TO RECEIVE RETIRED PAY COMPUTED ON THE SAME BASIS THAT HIS RETAINER PAY WAS COMPUTED PRIOR TO HIS PERIOD OF ACTIVE DUTY, BUT BASED ON THE RATE OF PAY PERTAINING TO HIS HIGHER RANK AS A COMMISSIONED WARRANT OFFICER. 33 COMP. GEN. 17. THUS, HIS RETIRED PAY, EFFECTIVE SEPTEMBER 1, 1954, WAS $204.20 A MONTH, REPRESENTING ONE-HALF OF THE BASE PAY OF A CHIEF WARRANT OFFICER ($105), PLUS A CREDIT ($73.50) FOR 21 YEARS OF SERVICE, PLUS 10 PERCENT ($17.85) FOR GOOD CONDUCT, PLUS THE INCREASE OF 4 PERCENT ($7.85) AUTHORIZED BY SECTION 2 (B) OF THE ACT OF MAY 19, 1952, 66 STAT. 80.

SINCE THE RECORDS SHOW THAT MR. HILDEBRAND WAS CORRECTLY PAID RETIRED PAY AT THE RATE OF $204.20 A MONTH FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO MARCH 31, 1955, THE ALLOWANCE OF THE ADDITIONAL SUM OF $84.14 FOR THAT PERIOD WAS ERRONEOUS. ACCORDINGLY, MR. HILDEBRAND SHOULD TAKE PROMPT ACTION TO REFUND THE SUM OF $84.14.

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