B-104379, AUG. 15, 1963

B-104379: Aug 15, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

GOMES WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 16. HE WAS GIVEN A PHYSICAL EXAMINATION ON THAT DATE INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AND NO DEFECTS WERE NOTED. HE WAS GIVEN A QUADRENNIAL PHYSICAL EXAMINATION AT WHICH TIME CERTAIN DEFECTS WERE NOTED ON THE BASIS OF WHICH THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED THAT HIS NAME BE PLACED ON THE RETIRED LIST. HE WAS SO RETIRED ON JULY 1. HE WAS RECALLED TO ACTIVE DUTY AND RELEASED THEREFROM ON JULY 21. HE WAS ADVISED THAT. HE WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BY THE PERCENTAGE OF DISABILITY METHOD PRESCRIBED IN SECTION 402 (D) OF THE 1949 ACT AND HE ELECTED TO RECEIVE RETIRED PAY AT THE RATE OF $138.92 PER MONTH.

B-104379, AUG. 15, 1963

TO KING AND KING:

YOUR LETTER DATED JUNE 27, 1963, REQUESTS REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED MAY 22, 1963, WHICH DISALLOWED THE CLAIM OF MRS. LOLA FIGUERIEDO GOMES FOR ADJUSTMENT OF RETIRED PAY FOR THE PERIOD JANUARY 1, 1953, THROUGH SEPTEMBER 16, 1962, ALLEGED TO BE DUE THE ESTATE OF HER DECEASED HUSBAND, ANTONE ELARIO GOMES, 161-19-03, CSK,USN, RETIRED, UNDER THE HOLDING IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957).

THE RECORD SHOWS THAT MR. GOMES WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 16, 1934, HAVING COMPLETED MORE THAN 16 YEARS FOR TRANSFER PURPOSES. HE WAS GIVEN A PHYSICAL EXAMINATION ON THAT DATE INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AND NO DEFECTS WERE NOTED. ON MAY 19, 1939, HE WAS GIVEN A QUADRENNIAL PHYSICAL EXAMINATION AT WHICH TIME CERTAIN DEFECTS WERE NOTED ON THE BASIS OF WHICH THE BUREAU OF MEDICINE AND SURGERY RECOMMENDED THAT HIS NAME BE PLACED ON THE RETIRED LIST. HE WAS SO RETIRED ON JULY 1, 1939. ON OCTOBER 25, 1940, HE WAS RECALLED TO ACTIVE DUTY AND RELEASED THEREFROM ON JULY 21, 1945. THIS ACTIVE SERVICE OF 4 YEARS, 8 MONTHS, AND 27 DAYS, WHEN ADDED TO HIS PRIOR ACTIVE SERVICE, RESULTED IN A TOTAL OF 21 YEARS, 8 MONTHS, AND 13 DAYS FOR PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY.

PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 823, THE SECRETARY OF THE NAVY DETERMINED MR. GOMES' PERCENTAGE OF DISABILITY TO BE ZERO PERCENT. HE WAS ADVISED THAT, BECAUSE OF SUCH ZERO RATING, HE WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BY THE PERCENTAGE OF DISABILITY METHOD PRESCRIBED IN SECTION 402 (D) OF THE 1949 ACT AND HE ELECTED TO RECEIVE RETIRED PAY AT THE RATE OF $138.92 PER MONTH, THE RATE PAYABLE UNDER THE METHOD OF COMPUTATION PROVIDED IN SECTION 511 (B). HE WAS PAID RETIRED PAY ON THE BASIS OF THAT COMPUTATION TO THE DATE OF HIS DEATH, SEPTEMBER 16, 1962.

BY SETTLEMENT DATED MAY 22, 1963, CLAIM FOR SELIGA TYPE BENEFITS WAS DISALLOWED FOR THE REASON THAT SINCE THE PHYSICAL DISABILITY FOR WHICH MR. GOMES WAS TRANSFERRED TO THE RETIRED LIST WAS INCURRED WHILE HE WAS NOT ENTITLED TO RECEIVE BASIC PAY HE WAS NOT ONE OF THE CLASSES OF PERSONS ENTITLED TO THE BENEFITS OF TITLE IV OF THE 1949 ACT AND THEREFORE CREDIT FOR INACTIVE TIME IN THE FLEET NAVAL RESERVE, FLEET RESERVE OR YEARS ON THE RETIRED LIST MAY NOT BE INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY. YOU SAY THAT THIS DENIAL FAILS TO TAKE INTO CONSIDERATION THE FACTS THAT MR. GOMES WAS "RE-RETIRED" ON JULY 21, 1945, BECAUSE OF A DISABILITY INCURRED IN LINE OF DUTY AND THAT HE WAS IMPROPERLY ADVISED THAT HE WAS NOT ENTITLED TO MAKE AN ELECTION TO RECEIVE RETIRED PAY UNDER SECTION 411 OF THE 1949 ACT. CITING THE DECISION IN THE CASE OF WILSON V. UNITED STATES, CT.CL. NO. 465-59, DECIDED NOVEMBER 7, 1962, AS APPLICABLE IN THIS CASE, YOU URGE THAT A PHYSICAL REVIEW COUNCIL BE ASKED TO ASSIGN THE DECEDENT A PERCENTAGE OF DISABILITY IN ACCORDANCE WITH THE PROCEDURE RECOMMENDED IN THE WILSON CASE.

IN THE WILSON CASE, THERE WAS SOME BASIS FOR A CONCLUSION THAT THE PLAINTIFF WAS ELIGIBLE TO ELECT TO QUALIFY FOR RETIREMENT UNDER THE PROVISIONS OF TITLE IV OF THE 1949 ACT. THE QUESTION WAS WHETHER A RETIRED FLEET RESERVIST, RECALLED TO ACTIVE DUTY AND SUBSEQUENTLY FOUND BY A MEDICAL SURVEY BOARD TO BE PERMANENTLY DISABLED AS THE RESULT OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY AFTER SUCH RECALL, HAD LOST HIS RIGHT TO MAKE AN ELECTION UNDER SECTION 411 BY REASON OF NOT HAVING SO ELECTED WITHIN THE 5-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THE 1949 ACT AS PROVIDED IN SECTION 411. THE RECORD BEFORE US FAILS TO SHOW THAT MR. GOMES WAS "RE-RETIRED" FOR A PHYSICAL DISABILITY INCURRED IN ADDITION TO OR IN AGGRAVATION OF THE PHYSICAL DISABILITY FOR WHICH HE WAS RETIRED ON JULY 1, 1939, WHEN HE WAS RELEASED FROM ACTIVE DUTY ON JULY 21, 1945, AND REVERTED TO HIS PREVIOUS STATUS ON THE RETIRED LIST. UNLIKE WILSON, HE INCURRED NO DISABILITY AFTER BEING RECALLED TO ACTIVE DUTY. CONSEQUENTLY, THE WILSON DECISION HAS NO BEARING IN THIS CASE.

NOT BEING ELIGIBLE FOR TITLE IV RETIREMENT BENEFITS FOR THE REASON THAT HIS PHYSICAL DISABILITY WAS NOT INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY, IT CANNOT BE SAID THAT MR. GOMES WAS MISLED BY THE DEPARTMENT OF THE NAVY WHEN HE WAS ADVISED THAT, SINCE HIS PERCENTAGE OF DISABILITY WAS ZERO, HE WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED BY THE PERCENTAGE OF DISABILITY METHOD. HE WAS GIVEN AN OPPORTUNITY TO ELECT UNDER SECTION 411 (B) TO RECEIVE RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511--- THE ONLY ELECTION AVAILABLE TO HIM AS A PERSON PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY INCURRED WHILE NOT ENTITLED TO RECEIVE BASIC PAY--- AND HAVING BEEN PAID METHOD 511 (B) RETIRED PAY IN ACCORDANCE WITH HIS ELECTION, HE RECEIVED ALL THE RETIRED PAY TO WHICH HE WAS ENTITLED.

ACCORDINGLY, THE DISALLOWANCE OF MAY 22, 1963, WAS CORRECT AND IS SUSTAINED.

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

Nov 14, 2017

Nov 9, 2017

Looking for more? Browse all our products here