B-129993, MAR. 9, 1961

B-129993, MAR. 9, 1961

TO LIEUTENANT COMMANDER E. C. DODD, HEAD, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1961, (XPA:9:48 9028), TO OUR CLAIMS DIVISION, FORWARDING, WITH OTHER ENCLOSURES, A CLAIM OF REAR ADMIRAL JOHN D. SMALL, USNR, RETIRED, FOR ADDITIONAL RETIRED PAY BASED UPON A PURPORTED CORRECTION OF HIS NAVAL RECORDS. YOU REQUEST APPROVAL OF THE CLAIM PRIOR TO ITS PAYMENT.

IN A SUIT IN THE COURT OF CLAIMS, ADMIRAL SMALL SOUGHT ADDITIONAL RETIRED PAY, CLAIMING THAT EFFECTIVE OCTOBER 1, 1949, SUCH PAY SHOULD BE COMPUTED ON THE PAY RATES IN EFFECT UNDER SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232, USING THE SAME PERCENTAGE FACTOR (75 PERCENT) AS WAS USED IN COMPUTING HIS RETIRED PAY AT THE RATES OF PAY WHICH WERE APPLICABLE UNDER THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. THIS CASE WAS BASED ON THE PROVISIONS OF SECTION 431 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 881. THE COURT HELD IN THE CASE OF BROYDERICK ET AL. (JOHN D. SMALL, PLAINTIFF NO. 11) V. UNITED STATES, 140 CT.CL. 427, DECIDED DECEMBER 4, 1957, THAT ADMIRAL SMALL WAS NOT ENTITLED TO RECOVER THE RETIRED PAY SO CLAIMED.

ADMIRAL SMALL FILED A CLAIM WITH US ON OR ABOUT MAY 1, 1958, FOR INCREASED RETIRED PAY ON THE THEORY OF BROWNELL, ET AL. V. UNITED STATES, 140 CT.CL. 427, DECIDED DECEMBER 4, 1957 (INCREASED RETIRED PAY BY REASON OF CREDIT FOR TIME SPENT AT THE UNITED STATES NAVAL ACADEMY). THIS CLAIM WAS DISALLOWED ON OCTOBER 3, 1958, ON THE BASIS THAT THE RATE OF RETIRED PAY TO WHICH ADMIRAL SMALL WAS ENTITLED HAD BEEN DECIDED IN BROYDERICK ET AL. V. UNITED STATES, SUPRA, AND, HENCE, THAT ANY QUESTIONS AS TO SUCH RATE WERE MATTERS RES JUDICATA. ON MARCH 9, 1959, ADMIRAL SMALL FILED A PETITION (BERRY AND SMALL V. UNITED STATES, CT.CL.NO. 108-59) IN THE COURT OF CLAIMS FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949, ON THE BROWNELL THEORY, WHICH WAS THE BASIS FOR THE CLAIM WHICH HAD BEEN DISALLOWED BY US ON OCTOBER 3, 1958.

WE WERE ADVISED ON MAY 22, 1959, THAT A MOTION TO DISMISS THE ABOVE PETITION HAD BEEN FILED WITH THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF ADMIRAL SMALL'S CLAIM BY US. HIS CLAIM WAS THEN RECONSIDERED, AND THE DISALLOWANCE OF OCTOBER 3, 1958, WAS SUSTAINED IN OUR DECISION OF JULY 1, 1959, B-129993, TO ADMIRAL SMALL'S ATTORNEY.

ON SEPTEMBER 23, 1960, THE THEN ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), ACTING UNDER 10 U.S.C. 1552, WHICH APPARENTLY WAS BELIEVED TO AUTHORIZE SUCH ACTION, APPROVED THE FOLLOWING DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS:

"DECISION:

"IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD, SPECIFICALLY HIS PAY RECORD, BE CORRECTED, WHEREVER APPROPRIATE, TO SHOW THE CORRECT AMOUNT OF ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY TO WHICH HE WAS AND IS ENTITLED IN CONSONANCE WITH THE U.S. COURT OF CLAIMS DECISION IN THE CASE OF BROWNELL ET AL. V. THE UNITED STATES, 140 C.CLS. 427.

"RECOMMENDATION:

"THE BOARD RECOMMENDS THAT THE DEPARTMENT OF THE NAVY PAY TO THE PETITIONER, OR OTHER PROPER PARTY OR PARTIES, ALL MONIES LAWFULLY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.'

THE PRESENT CLAIM IS PRESENTED ON THE BASIS OF THE ABOVE ACTION.

THE FACTS IN ADMIRAL SMALL'S CASE ARE SIMILAR TO THE FACTS IN THE CASE OF COMMANDER ALBERT G. BERRY, JR., USNR, RETIRED. IN OUR LETTER OF FEBRUARY 13, 1961, B-63549, TO MR. F. I. ALLEN, RETIRED PAY DEPARTMENT (XAA), U.S. NAVY FINANCE CENTER, COPY HEREWITH, WE EXPLAINED FULLY WHY WE FIND NO BASIS FOR FAVORABLE ACTION ON COMMANDER BERRY'S CLAIM. FOR THE REASONS THERE STATED, WE LIKEWISE FIND NO BASIS FOR FAVORABLE ACTION IN ADMIRAL SMALL'S CASE.