B-138416, OCT. 31, 1961

B-138416, OCT. 31, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 29, 1961, REQUESTING FURTHER RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 16, 1958, BY WHICH ADDITIONAL RETIRED PAY--- COMPUTED ON THE BASIS OF HIS COMMISSIONED WARRANT OFFICER GRADE UNDER THE DECISION IN THE TATO CASE, 136 CT.CL. 651- -- WAS ALLOWED GIRARD C. POLITE, CHIEF, MACHINIST, UNITED STATES NAVY, RETIRED. SUCH SETTLEMENT WAS THE SUBJECT OF OUR DECISION, B-138416, DATED MARCH 24, 1959.

IN YOUR LETTER DATED DECEMBER 18, 1958, YOU ASSERTED THAT, UNDER THE DECISION IN WHITE V. UNITED STATES, 121 CT.CL. 1, AND OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110, THE CONSTRUCTIVE SERVICE CREDIT AUTHORIZED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, WITH RESPECT TO MINORITY AND SHORT-TERM ENLISTMENTS, MAY BE INCLUDED IN DETERMINING THE RATE OF BASE AND LONGEVITY PAY AND THE PERCENTAGE MULTIPLE TO BE USED IN THE COMPUTATION OF RETAINER OR RETIRED PAY UNDER THE PROVISIONS OF SECTIONS 204 AND 208 OF THE 1938 LAW. YOU NOW REQUEST FURTHER RECONSIDERATION BASED ON THE DECISION IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL.NO. 217-56, DECIDED MAY 3, 1961, WHICH YOU CONTEND SUSTAINED THE ARGUMENTS ASSERTED IN YOUR LETTER OF DECEMBER 18, 1958.

THE WHITE DECISION HELD THAT UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 202 OF THAT ACT MAY BE INCLUDED IN THE PERCENTAGE MULTIPLE FOR COMPUTING RETAINER AND RETIRED PAY. THE JOHNSON DECISION IS TO THE EFFECT THAT SUCH CONSTRUCTIVE SERVICE MAY BE CREDITED TOWARD THE 30 YEARS OF SERVICE REQUIRED AS A PREREQUISITE TO RECEIPT OF THE RETIRED PAY OF A HIGHER OFFICER GRADE UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829. SINCE NEITHER OF THESE QUESTIONS IS DIRECTLY INVOLVED IN MR. POLITE'S CASE, YOUR PRESENT REQUEST FOR RECONSIDERATION IS BASED SOLELY ON THE PROPOSITION THAT THE COURT DECISIONS SUPPORT YOUR ORIGINAL CONTENTION THAT, AS SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, STATES THAT FOR ALL PURPOSES OF THAT ACT AN ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS A FULL TERM OF SERVICE FOR WHICH ENLISTED, HIS RETIRED PAY FOR THE PERIOD FROM APRIL 21, 1948, TO SEPTEMBER 30, 1949, SHOULD HAVE BEEN COMPUTED ON THE BASIS OF 24 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES INSTEAD OF ONLY 21 YEARS OF SERVICE AND THAT HIS RETIRED PAY FOR THE PERIOD FROM OCTOBER 1, 1949, TO DATE SHOULD BE COMPUTED ON THE BASIS OF 24 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES UNDER THE SPECIFIC DEFINITION OF "ACTIVE SERVICE" CONTAINED IN SECTION 511 OF THE 1949 ACT.

FOR THE PERIOD PRIOR TO OCTOBER 1, 1949, MR. POLITE WAS ENTITLED TO RETIRED PAY COMPUTED AS AUTHORIZED BY LAW ON THE BASIS OF THE PAY PROVIDED BY THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359. THROUGHOUT THAT ACT IT IS EVIDENT THAT YEARS OF SERVICE FOR PURPOSES OF BASE PAY AND LONGEVITY AS USED IN THE ACT SHALL BE ACTUAL SERVICE.

YOU STATE THAT OUR DECISION OF MARCH 24, 1959, B-138416,"COMPLETELY IGNORES THE LANGUAGE" OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938. HOWEVER, THE DECISION OF MARCH 24, 1959, B-138416, AND 38 COMP. GEN. 110, DISCUSS AND GIVE FULL EFFECT TO THE PROVISIONS OF SECTION 202 OF THE 1938 ACT FOR ALL PURPOSES OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED. THAT ACT DOES NOT, AS YOU APPARENTLY CONTEND, AFFECT THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, OR THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, WITH RESPECT TO DETERMINING THE LENGTH OF SERVICE FOR BASE AND LONGEVITY PAY AND BASIC PAY, RESPECTIVELY, EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THE SIXTH PROVISO TO SECTION 204, AS AMENDED, AND THE FOURTH PROVISO OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, WHICH PROVIDE THAT A FRACTIONAL YEAR OF 6 MONTHS OR MORE WILL BE CONSIDERED A FULL YEAR FOR LONGEVITY PAY PURPOSES IN THE PAY FACTOR AND FOR PERCENTAGE PURPOSES IN THE MULTIPLIER FACTOR.

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW, THE 1942 AND 1949 PAY ACTS GOVERN THE CREDITING OF SERVICE FOR THE PURPOSE OF COMPUTING LENGTH OF SERVICE FOR BASE AND LONGEVITY PAY AND BASIC PAY, RESPECTIVELY, NOT ONLY FOR ACTIVE DUTY PAY, BUT ALSO FOR RETAINER AND RETIRED PAY. YOU WILL NOTE THAT SECTION 202 OF THE NAVAL RESERVE ACT DOES NOT SAY THAT THE CONSTRUCTIVE SERVICE THERE AUTHORIZED IS CREDITABLE FOR ALL PURPOSES OF ALL STATUTES OR OF PAY ACTS OR RETIREMENT ACTS.

AS WE STATED IN OUR DECISION OF MARCH 24, 1959, B-138416, TO YOU:

"* * * NEITHER THE NAVAL RESERVE ACT OF 1938 NOR THE 1946 AMENDMENTS SPECIFICALLY PURPORT TO ESTABLISH AN INDEPENDENT METHOD OF COMPUTING LONGEVITY PAY EXCEPT THAT THE 1946 AMENDMENTS WOULD COUNT SIX MONTHS OR MORE AS ONE YEAR OF SERVICE FOR LONGEVITY PAY PURPOSES. ON THE CONTRARY, THE 1946 ACT SPECIFICALLY PROVIDED THAT RETAINER AND RETIRED PAY WOULD BE BASED ON THE ANNUAL BASE AND LONGEVITY PAY RECEIVED AT THE TIME OF TRANSFER TO THE FLEET RESERVE OR RESUMPTION OF INACTIVE DUTY STATUS, THAT IS, IT EXPRESSLY ADOPTED THE RULES FOR COMPUTING LENGTH OF SERVICE OTHERWISE PRESCRIBED BY LAW.'

NOTHING IN THE HOLDING OF THE COURT OF CLAIMS IN THE WHITE OR JOHNSON CASES OR OUR DECISION 38 COMP. GEN. 110 WARRANTS THE CONCLUSION THAT CONSTRUCTIVE SERVICE RESULTING FROM MINORITY OR SHORT TERM ENLISTMENTS CAN BE INCLUDED IN DETERMINING THE RATE OF BASE AND LONGEVITY PAY UNDER THE PAY READJUSTMENT ACT OF 1942 OR BASIC PAY UNDER THE CAREER COMPENSATION ACT OF 1949 FOR THE PURPOSE OF COMPUTING RETAINER OR RETIRED PAY. INSOFAR AS CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, IS CONCERNED, THE NAVAL RESERVE ACT, AS AMENDED, REFERS ONLY TO LENGTH OF SERVICE FOR TRANSFER TO THE FLEET RESERVE, RETIREMENT, AND FOR COMPUTING THE PERCENTAGE MULTIPLE FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE FORMULA THERE PRESCRIBED; IT CONTAINS NO AUTHORITY FOR CREDITING SUCH CONSTRUCTIVE TIME FOR COMPUTING PAY BASED ON LENGTH OF SERVICE IN THE BASIC PAY FACTOR OR IN THE PERCENTAGE MULTIPLE FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF FORMULA (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT.

SUBSEQUENT TO SEPTEMBER 30, 1949, MR. POLITE WAS ENTITLED TO RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, WHICH, WITH THE EXCEPTION OF CONSTRUCTIVE SERVICE AUTHORIZED FOR MEDICAL AND DENTAL OFFICERS, RESTRICTS CREDIT IN COMPUTING LENGTH OF SERVICE FOR BASIC PAY PURPOSES TO ACTUAL SERVICE.

FOR THE REASONS GIVEN ABOVE, IT MUST BE CONCLUDED THAT THE SETTLEMENT DATED SEPTEMBER 16, 1958, WAS BASED UPON THE CORRECT METHOD OF COMPUTATION AND THAT THE CLAIMANT HAS BEEN ALLOWED ALL THE ADDITIONAL RETIRED PAY TO WHICH HE IS ENTITLED. ACCORDINGLY, OUR PREVIOUS ACTIONS ARE SUSTAINED.