B-141450, OCT. 6, 1964

B-141450, OCT. 6, 1964

TO MR. LEE EAD CLARK:

FURTHER REFERENCE IS MADE TO THE LETTER OF AUGUST 5, 1964, FROM YOUR ATTORNEYS RETURNING CHECK NO. 70,334,555, DATED JANUARY 29, 1962, DRAWN TO YOUR ORDER IN THE AMOUNT OF $184.07 REPRESENTING PAYMENT OF THE CLAIM PREVIOUSLY FILED IN YOUR BEHALF FOR AN ADJUSTMENT IN RETIRED PAY BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (GOVER) V. UNITED STATES, 149 CT.CL. 716 (1960). WE ARE ADVISED THAT THE MOTION TO DISMISS YOUR PETITION IN THE CASE OF JAMES BARNES, ET AL. V. UNITED STATES, CT.CL. NO. 500-59, ON THE BASIS OF WHICH THAT CLAIM SETTLEMENT WAS MADE, WAS NOT FILED IN THE COURT UPON RECEIPT OF THE SETTLEMENT BUT IS STILL BEING HELD IN ESCROW IN THE DEPARTMENT OF JUSTICE. YOUR ATTORNEYS NOW REQUEST THAT YOUR CLAIM BE RECONSIDERED AND PAID IN ACCORDANCE WITH THE COURT'S DECISION IN THE CASE OF CALLAHAN V. UNITED STATES, CT.CL. NO. 349-62, DECIDED FEBRUARY 14, 1964.

IN THE CALLAHAN DECISION THE COURT RULED THAT THE PROVISION IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1178, AUTHORIZING CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS TO BE CREDITED AS SERVICE FOR ALL PURPOSES OF THAT ACT WAS IN EFFECT INCORPORATED IN SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 363, WITH RESPECT TO PERSONS TRANSFERRED TO THE FLEET RESERVE, THEREBY MAKING SUCH CONSTRUCTIVE TIME, IN ADDITION TO THE TYPES OF SERVICE SPECIFIED IN SECTION 9 AND THE AMENDMENTS THEREOF, CREDITABLE FOR LONGEVITY PURPOSES IN COMPUTING RETAINER PAY OR RETIRED PAY UNDER THE 1938 ACT.

SINCE THE DECISION IN THE CALLAHAN CASE HAS NOW BECOME FINAL, APPLICATION OF THE SAME PRINCIPLE IN YOUR CASE WILL ENTITLE YOU TO AN INCREASE IN RETIRED PAY. AT THE TIME OF YOUR LAST RELEASE FROM ACTIVE DUTY, AUGUST 8, 1945, YOU HAD SERVED 20 YEARS, 1 MONTH AND 29 DAYS. BY ADDING YOUR 8 MONTHS AND 10 DAYS OF CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS YOU ARE CREDITED WITH 20 YEARS, 10 MONTHS AND 9 DAYS FOR LONGEVITY PURPOSES WHICH UNDER SECTION 2 OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993, IS COUNTED AS 21 YEARS.

IN YOUR CLAIM LETTER OF OCTOBER 10, 1961, YOU REQUESTED THAT YOUR CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS BE CREDITED AS SERVICE UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, PRESUMABLY FOR THE PURPOSE OF INCREASING THE PERCENTAGE MULTIPLE TO BE USED IN COMPUTING RETIRED PAY UNDER METHOD (B). HOWEVER, THE CALLAHAN DECISION DID NOT AUTHORIZE CREDIT OF CONSTRUCTIVE TIME AS SERVICE FOR THIS PURPOSE. SINCE SECTION 511 SPECIFIES THAT THE PERCENTAGE MULTIPLE SHALL BE ESTABLISHED ON THE BASIS OF THE MEMBER'S "ACTIVE SERVICE" WITH NO QUALIFICATION WHICH WOULD PERMIT THE INCLUSION OF CONSTRUCTIVE TIME AND COMPUTATION OF YOUR RETIRED PAY UNDER METHOD (B) USING ACTIVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE IS LESS THAN THAT TO WHICH YOU WOULD BE ENTITLED UNDER METHOD (A), USING THE SANDERS FORMULA, COMPUTATION HAS BEEN MADE UNDER THE SANDERS FORMULA BASED ON THE PAY OF A LIEUTENANT (JG) (TO WHICH GRADE YOU WERE ADVANCED ON THE RETIRED LIST) WITH OVER 21 YEARS OF SERVICE.

YOUR CLAIM COVERS THE PERIOD BEGINNING JULY 1, 1952. HOWEVER YOU WERE A PETITIONER IN THE COURT OF CLAIMS IN THE CASE OF ABERCROMBIE, ET AL. V. UNITED STATES, CT.CL. NO. 221-56, WHEREIN YOU SOUGHT AN ADJUSTMENT IN RETIRED PAY. THAT PETITION WAS DISMISSED ON ITS MERITS ON JULY 12, 1957 (139 CT.CL. 748), AND THE DOCTRINE OF RES JUDICATA BARS ANY CONSIDERATION OF YOUR PRESENT CLAIM FOR AN ADJUSTMENT IN RETIRED PAY FOR ANY PERIOD PRIOR TO JULY 13, 1957.

COMPUTATION AS EXPLAINED ABOVE SHOWS YOUR ENTITLEMENT UNDER THE CALLAHAN DECISION TO AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD JULY 13, 1957, TO FEBRUARY 29, 1964, IN THE AMOUNTS SHOWN BELOW, WITH A SIMILAR ADJUSTMENT FOR THE PERIOD FOLLOWING FEBRUARY 29, 1964, TO BE EFFECTED BY THE DEPARTMENT OF THE NAVY:

TABLE

JULY 13, 1957, TO MAY 31, 1958, AT $215.52 PER MONTH

JUNE 1, 1958, TO SEPTEMBER 30, 1963, AT $228.45 PER MONTH

OCTOBER 1, 1963, TO THE PRESENT TIME AT $239.87 PER MONTH

THE ABOVE RATES OF ENTITLEMENT, MINUS THE RETIRED PAY YOU HAVE BEEN PAID FOR THE PERIOD JULY 13, 1957, TO FEBRUARY 29, 1964, RESULTS IN AN ADJUSTMENT DUE YOU IN THE AMOUNT OF $927.62. IF ALLOWANCE OF THIS AMOUNT IS SATISFACTORY TO YOU AND YOU AGREE TO THE FILING IN THE COURT OF CLAIMS OF THE MOTION TO DISMISS YOUR PRESENT PETITION UPON RECEIPT OF THE SETTLEMENT FOR $927.62, SUCH SETTLEMENT WILL BE ISSUED IN YOUR FAVOR PROMPTLY UPON RECEIPT IN OUR OFFICE OF A STATEMENT SIGNED BY YOU TO THIS EFFECT. SUCH STATEMENT SHOULD BE ADDRESSED TO THE OFFICE OF THE GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C., AND SHOULD INCLUDE A REFERENCE TO OUR FILE NO. B-141450.