B-100610, APRIL 22, 1960, 39 COMP. GEN. 720
Highlights
WHO PERFORMED ACTIVE DUTY AFTER TRANSFER MAY BE GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBERS MAY HAVE ADDED THE SUBSEQUENT ACTIVE DUTY SERVICE TO QUALIFY FOR INCREASED RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938. SIMILAR CLAIMS WILL BE SETTLED ACCORDINGLY AND ADMINISTRATIVE PAYMENTS MADE ON THIS BASIS WILL NOT BE QUESTIONED. 37 COMP. WITH LESS THAN 16 YEARS' SERVICE WERE THEREBY GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBER COULD ADD HIS YEARS OF SUBSEQUENT ACTIVE SERVICE UNDER SECTION 208 OF THE NAVAL ACT OF 1938. THE DEPARTMENT OF JUSTICE ADVISED THAT NO FURTHER PROCEEDINGS WILL BE TAKEN BY THAT DEPARTMENT WITH RESPECT TO THE DECISION OF THE COURT IN THAT CASE.
B-100610, APRIL 22, 1960, 39 COMP. GEN. 720
MILITARY PERSONNEL - PAY - RETIRED - FLEET RESERVISTS - ACTIVE DUTY AFTER RETIREMENT - SERVICE CREDITS MEMBERS OF THE UNIFORMED SERVICES WHO HAD LESS THAN 16 YEARS' SERVICE WHEN TRANSFERRED TO THE FLEET RESERVE UNDER THE ACT OF JULY 1, 1922, AND WHO PERFORMED ACTIVE DUTY AFTER TRANSFER MAY BE GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBERS MAY HAVE ADDED THE SUBSEQUENT ACTIVE DUTY SERVICE TO QUALIFY FOR INCREASED RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854G, IN ACCORDANCE WITH MOJICA, ET AL. V. UNITED STATES ( SENST CASE), C.1CLS. NO. 264-52, WHICH RECOGNIZED SUCH CONSTRUCTIVE SERVICE; THEREFORE, SIMILAR CLAIMS WILL BE SETTLED ACCORDINGLY AND ADMINISTRATIVE PAYMENTS MADE ON THIS BASIS WILL NOT BE QUESTIONED. 37 COMP. GEN. 383, OVERRULED.
TO THE SECRETARY OF DEFENSE, APRIL 22, 1960:
THIS HAS REFERENCE TO THE DECISION RENDERED ON JANUARY 20, 1960, BY THE COURT OF CLAIMS IN THE CASE OF MOJICA, ET AL. V. UNITED STATES C.1CLS. NO. 264-52 ( SADIE L. SENST AND PEGGY MAE WILSON, BENEFICIARIES OF THE ESTATE OF WALTER CARR SENST, DECEASED, PLAINTIFF NO. 60), IN FAVOR OF THE PLAINTIFF, GRANTING RETAINER OR RETIRED PAY AS ONE-HALF OF BASE PAY, PLUS PERMANENT ADDITIONS IN ACCORDANCE WITH THE DECISION IN SANDERS V. UNITED STATES, 120 C.1CLS. 501, TO A MEMBER TRANSFERRED TO THE FLEET NAVAL RESERVE PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 1, 1922, P.L. 263, 42 STAT. 799, 800, WITH LESS THAN 16 YEARS' SERVICE, WHO HAD PERFORMED ACTIVE DUTY AFTER TRANSFER OF AT LEAST THREE YEARS AND SIX MONTHS.
THE COURT HELD THAT MEN TRANSFERRED TO THE FLEET RESERVE PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 1, 1922, WITH LESS THAN 16 YEARS' SERVICE WERE THEREBY GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBER COULD ADD HIS YEARS OF SUBSEQUENT ACTIVE SERVICE UNDER SECTION 208 OF THE NAVAL ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854G, IN ORDER TO COMPUTE HIS RETIRED OR RETAINER PAY ON THE ONE-HALF BASE PAY FORMULA UNDER THE RULING OF THE COURT IN THE SANDERS CASE.
SINCE WE HAD REACHED A DIFFERENT CONCLUSION IN OUR DECISION OF DECEMBER 4, 1957, 37 COMP. GEN. 383, WE RECOMMENDED TO THE DEPARTMENT OF JUSTICE THAT THE COURT BE REQUESTED TO RECONSIDER ITS DECISION IN THE SENST. LETTER DATED MARCH 23, 1960, THE DEPARTMENT OF JUSTICE ADVISED THAT NO FURTHER PROCEEDINGS WILL BE TAKEN BY THAT DEPARTMENT WITH RESPECT TO THE DECISION OF THE COURT IN THAT CASE.
WHILE WE DISAGREE WITH THE COURT'S CONCLUSIONS, THE VIEWS ADOPTED ARE NOT ENTIRELY UNTENABLE. IN SUCH CIRCUMSTANCES, WE HAVE DECIDED TO FOLLOW THE RULE ESTABLISHED IN THE SENST DECISION IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS AND OTHERWISE PROPER ADMINISTRATIVE PAYMENTS MADE IN ACCORDANCE WITH THE RULE ESTABLISHED BY THAT DECISION WILL NOT BE QUESTIONED BY THIS OFFICE.