B-147928, JUL. 11, 1962

B-147928, JUL. 11, 1962

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1962, IN WHICH YOU REQUEST, AS ATTORNEYS FOR DIONICIO MANUEL, UNITED STATES NAVY, RETIRED, RECONSIDERATION OF OUR DECISION DATED MARCH 27, 1962, B-147928. IN THAT DECISION, WE REQUESTED THAT THE CHECKS NOW IN YOUR POSSESSION ISSUED TO MR. MANUEL AND TO ANY OTHER PERSONS SIMILARLY SITUATED, WHO WERE RETIRED FOR DISABILITY PRIOR TO OCTOBER 1, 1949, AND WHO MADE NO ELECTION TO RECEIVE THE BENEFITS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, BE RETURNED TO THIS OFFICE FOR CANCELLATION.

OUR DECISION OF MARCH 27 WAS BASED ON THE CONCLUSION THAT, SINCE MANUEL MADE NO ELECTION OF BENEFITS UNDER SECTION 411 OF THE 1949 ACT WITHIN THE FIVE-YEAR LIMITATION PERIOD THERE PRESCRIBED, THE BENEFITS OF SUCH AN ELECTION MAY NOT NOW BE ACCORDED HIM. YOU QUESTION WHETHER AN ELECTION OF RETIRED PAY WAS EXTENDED TO HIM BY THE DEPARTMENT OF THE NAVY AND STATE THAT THIS IS PROVED BY THE RECENT GREAVES CASE (AFLAGUE, ET AL. (ERNEST W. GREAVES, PLAINTIFF NO. 14) ( V. UNITED STATES, CT.CL.NO. 212-56, DECIDED JANUARY 12, 1962) WHERE YOU "UNSUCCESSFULLY CONTENDED THAT THE PLAINTIFF SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO MAKE SUCH AN ELECTION.'

WE FIND NOTHING IN THE GREAVES CASE WHICH SHOWS THAT THE PLAINTIFF WAS DENIED AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411. IT WAS CONCEDED IN THAT CASE THAT ALTHOUGH THE PLAINTIFF WAS TRANSFERRED TO THE RETIRED LIST FOR DISABILITY, HE COULD NOT QUALIFY FOR INCREASED RETIRED PAY UNDER OPTION (A) OF SECTION 411, AND THE COURT STATED THAT "HE MUST THEREFORE ELECT UNDER SECTION 511" WHICH ELECTION WAS OPEN TO HIM UNDER OPTION (B) OF SECTION 411. THE QUESTION INVOLVED WAS NOT WHETHER THE PLAINTIFF SHOULD BE AFFORDED THE OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411, BUT RATHER THE AMOUNT OF RETIRED PAY TO WHICH HE WOULD HAVE BEEN ENTITLED IF HIS RETIRED PAY WERE COMPUTED UNDER METHOD (B) OF SECTION 511. IT WAS FOUND THAT THE RETIRED PAY SO COMPUTED WAS LESS THAN THE SAVED RETIRED PAY THEN BEING PAID TO HIM. WHILE THE MATTER IS NOT ENTIRELY CLEAR IT APPEARS THAT THE ELECTION WHICH THE PLAINTIFF WISHED TO ASSERT AND WHICH WAS ADMINISTRATIVELY DENIED, WAS MADE UNDER SECTION 411 (A). BUT, HOWEVER THAT MAY BE, IT IS EVIDENT THAT UNDER CURRENT DECISIONS OF THE COURT OF CLAIMS HE WOULD HAVE BEEN GIVEN THE BENEFITS OF A SECTION 411 (B) ELECTION IF THE AMOUNT PRESUMABLY TENDERED TO HIM BY THE DEPARTMENT OF THE NAVY UNDER THE 2 1/2 PERCENTUM TIMES YEARS OF SERVICE FORMULA OF METHOD (B) OF SECTION 511 HAD BEEN INCORRECTLY COMPUTED AND THE CORRECT AMOUNT ACTUALLY EXCEEDED THE RETIRED PAY HE THEN WAS RECEIVING. THE COURT DECIDED AGAINST HIM NOT BECAUSE OF A LACK OF RIGHT TO MAKE A SECTION 411 (B) ELECTION, BUT BECAUSE SUCH ELECTION WAS OF NO VALUE TO HIM.

THERE IS NO EVIDENCE THAT MANUEL WAS FURNISHED ANY INCORRECT INFORMATION WHICH ADVERSELY AFFECTED ANY RIGHT HE HAD IN CONNECTION WITH A SECTION 411 ELECTION AND HENCE NO BASIS EXISTS FOR PERMITTING HIM TO

IT APPEARING THAT THE CONCLUSIONS REACHED IN OUR DECISION OF MARCH 27, 1962, ARE NOT AFFECTED BY THE HOLDING IN THE GREAVES CASE, THAT DECISION IS SUSTAINED.