B-100137, OCT. 9, 1959

B-100137, OCT. 9, 1959

TO LIEUTENANT COMMANDER ARTHUR C. MEYERS, USNR (RETIRED):

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21, 1959,REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY PREDICATED UPON THE INCLUSION OF MIDSHIPMAN SERVICE AT THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IN DETERMINING THE BASIC PAY RATE TO BE USED IN THE COMPUTATION OF YOUR RETIRED PAY.

THE DISALLOWANCE OF YOUR CLAIM BY OUR CLAIMS DIVISION SETTLEMENT DATED DECEMBER 13, 1956, WAS SUSTAINED IN OUR DECISION DATED APRIL 22, 1958, B- 100137. IN SUPPORT OF YOUR CLAIM YOU NOW CITE THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF HORACE J. JALBERT V. UNITED STATES, NO. 297-58, DECIDED JULY 15, 1959, WHEREIN IT WAS HELD THAT THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, SECTION 1, 42 STAT. 627, PRESERVED THE RIGHT TO CREDIT NAVAL ACADEMY MIDSHIPMAN SERVICE UNDER AN APPOINTMENT MADE PRIOR TO MARCH 4, 1913, TO MEMBERS WHO HAD ACQUIRED THAT RIGHT PRIOR TO THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922, SUPRA, EVEN THOUGH SUCH MEMBERS WERE NOT SERVING AS OFFICERS ON JUNE 30, 1922.

FINAL JUDGMENT HAS NOT BEEN ENTERED IN THE JALBERT CASE AND UNTIL IT HAS BEEN DETERMINED THAT NO FURTHER ACTION WILL BE TAKEN BY THE GOVERNMENT IN THAT CASE, IT COULD NOT FORM A PRECEDENT FOR HANDLING OTHER CASES. THIS CONNECTION, IT MAY BE STATED THAT THE MAJORITY DECISION IN THE JALBERT CASE IS NOT IN AGREEMENT WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF HILTON V. UNITED STATES, 99 C.CLS. 386, WHICH WAS NOT CITED, MODIFIED OR OVERRULED IN THE JALBERT DECISION.

IN VIEW OF THESE CIRCUMSTANCES, ON THE PRESENT RECORD, WE MUST ADHERE TO THE VIEWS EXPRESSED IN OUR DECISION OF APRIL 22, 1958.