B-147383, APR. 1, 1964

B-147383, APR. 1, 1964

TO MR. BALLARD DAUGHERTY, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1964, REQUESTING REVIEW OF OUR DECISION TO YOU OF JANUARY 23, 1964, IN WHICH WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR ADJUSTMENT OF YOUR RETIRED PAY TO 75 PERCENT OF THE PAY OF YOUR GRADE WITH 30 YEARS OF SERVICE BASED ON THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359.

YOU CONTEND THAT, SINCE YOU WERE RECEIVING ACTIVE DUTY PAY BASED ON 30 CUMULATIVE YEARS OF SERVICE, ACTIVE AND INACTIVE, AT THE TIME OF YOUR LAST RELEASE FROM ACTIVE DUTY IN 1944, YOUR RETIRED PAY SHOULD BE COMPUTED ON THE SAME BASIS. HOWEVER, YOU HAVE FURNISHED NO NEW INFORMATION IN SUPPORT OF YOUR CLAIM AND YOU HAVE CITED NO AUTHORITY WHICH WAS NOT PREVIOUSLY CONSIDERED. IN OUR LETTER OF JANUARY 23, 1964, WE EXPLAINED THAT UNDER THE APPLICABLE LAWS AND COURT DECISIONS YOU ARE NOT ENTITLED TO THE ADJUSTMENT CLAIMED ON THE BASIS OF CREDIT FOR YOUR INACTIVE TIME ON THE RETIRED LIST AND THAT THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF STEELMAN V. UNITED STATES, CT.CL. NO. 24-60, DATED JUNE 7, 1963, HAS NO BEARING ON YOUR CLAIM. CONCERNING YOUR STATEMENT THAT YOU FIND NOTHING IN THE STEELMAN DECISION "WHERE I AM NOT ENTITLED TO HAVE MY RETIRED PAY ADJUSTED ACCORDING TO MY LAST ACTIVE DUTY PAY," YOU ARE ADVISED THAT IT IS A MATTER OF NO IMPORTANCE THAT THE STEELMAN CASE DOES NOT BAR PAYMENT OF YOUR CLAIM. UNLESS THAT CASE ACTUALLY SUPPORTS YOUR CLAIM IT IS WITHOUT SIGNIFICANCE HERE. THE STEELMAN CASE DECIDED A QUESTION WHICH IS ENTIRELY UNRELATED TO THE QUESTION HERE INVOLVED.

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 DEALT WITH THE MATTER OF RETIRED PAY AND PROVIDED IN PERTINENT PART AS FOLLOWS:

"ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, RETIRED OFFICERS, WARRANT OFFICERS, NURSES, ENLISTED MEN, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE SHALL HAVE THEIR RETIRED PAY, RETAINER PAY, OR EQUIVALENT PAY, COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF PAY PROVIDED IN THIS ACT, WHICH PAY SHALL INCLUDE INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY AND PAY PERIODS: * * *.'

THE RECORD SHOWS THAT THE RATES OF RETIRED PAY RECEIVED BY YOU SUBSEQUENT TO YOUR LAST RELEASE FROM ACTIVE DUTY IN 1944 WERE BASED ON YOUR TOTAL SERVICE CREDITABLE FOR LONGEVITY PURPOSES AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE IN 1922, PLUS ALL ACTIVE SERVICE PERFORMED BY YOU THEREAFTER. ACCORDINGLY, YOU HAVE RECEIVED THE BENEFITS OF THE STATUTORY PROVISION QUOTED ABOVE.