B-136452, SEP. 29, 1959
Highlights
RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21. IS DUE YOU BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF PHELAN. THE BASIS FOR THE DECISION IN THE PHELAN CASE WAS THE PREVIOUS RULINGS OF THE COURT OF CLAIMS IN THE CASES OF BAILEY V. THE SELIGA CASE PERTAINED TO AN ENLISTED MAN OF THE NAVY AND IS NOT PERTINENT HERE. THE FACTS IN THE BAILEY AND TRAVIS CASES ARE SOMEWHAT SIMILAR TO THOSE IN YOUR CASE IN THAT THOSE OFFICERS WERE SERVING IN THE ARMED FORCES PRIOR TO NOVEMBER 12. WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE SECOND WORLD WAR. EACH OFFICER WAS ENTITLED TO RECEIVE AS RETIRED PAY 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS THEN RECEIVING. THE COURT HELD THAT THE MEMBERS WERE ENTITLED.
B-136452, SEP. 29, 1959
TO CAPTAIN HARVEY S. HAISLIP, USN, RETIRED:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1959, CONCERNING OUR SETTLEMENT OF DECEMBER 18, 1958, WHICH ALLOWED YOU ADDITIONAL RETIRED PAY FOR THE PERIOD MAY 28, 1948, TO OCTOBER 31, 1958, COMPUTED AT 75 PERCENT OF THE PAY OF A CAPTAIN OF THE NAVY WITH OVER 30 YEARS OF SERVICE, AT THE PAY RATES IN EFFECT PRIOR TO OCTOBER 1, 1949, IN ACCORDANCE WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF GORDON V. UNITED STATES, 134 C.CLS. 840.
IN YOUR LETTER YOU ASK FOR AN ADJUSTMENT OF YOUR RETIRED PAY TO 75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN HAVING OVER 30 YEARS OF SERVICE, COMPUTED AT THE PAY RATES IN EFFECT OCTOBER 1, 1949. THIS, YOU BELIEVE, IS DUE YOU BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF PHELAN, ET AL. V. UNITED STATES, C.CLS. 50-57, DECIDED JUNE 3, 1959.
THE BASIS FOR THE DECISION IN THE PHELAN CASE WAS THE PREVIOUS RULINGS OF THE COURT OF CLAIMS IN THE CASES OF BAILEY V. UNITED STATES, 134 C.CLS. 471; TRAVIS V. UNITED STATES, 137 C.CLS. 148; AND SELIGA V. UNITED STATES, 137 C.CLS. 710. THE SELIGA CASE PERTAINED TO AN ENLISTED MAN OF THE NAVY AND IS NOT PERTINENT HERE. THE FACTS IN THE BAILEY AND TRAVIS CASES ARE SOMEWHAT SIMILAR TO THOSE IN YOUR CASE IN THAT THOSE OFFICERS WERE SERVING IN THE ARMED FORCES PRIOR TO NOVEMBER 12, 1918; WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE SECOND WORLD WAR; RECALLED TO ACTIVE DUTY DURING THE SECOND WORLD WAR; AND REVERTED TO THE RETIRED LIST PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949. BASED UPON THE PROVISIONS OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, THE COURT HELD THAT, ON REVERSION TO THE RETIRED LIST, EACH OFFICER WAS ENTITLED TO RECEIVE AS RETIRED PAY 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS THEN RECEIVING. ALSO, PURSUANT TO ELECTIONS MADE UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT, 823, WITH RESPECT TO QUALIFYING FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT, THE COURT HELD THAT THE MEMBERS WERE ENTITLED, COMMENCING OCTOBER 1, 1949, TO RETIRED PAY COMPUTED ON THE MONTHLY BASIC PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED IF SERVING ON ACTIVE DUTY OCTOBER 1, 1949, INCLUDING ALL SERVICE APPLICABLE FOR BASIC PAY INCREASES IN THE PAYMENT OF ACTIVE DUTY PAY. HOWEVER, THE COURT POINTED OUT THAT, AS TO THE PERCENTAGE MULTIPLIER, SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, PROVIDED FOR AN ELECTION BETWEEN (1) A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH SUCH MEMBER IS ENTITLED UNDER THE PROVISIONS OF SECTION 412 OF THE ACT, MULTIPLIED BY 2 1/2 PERCENTUM, OR (2) THE PERCENTAGE OF HIS PHYSICAL DISABILITY AS OF THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER.
METHOD 2 WAS APPLIED IN THE CASE OF BAILEY, WHO HAD 70 PERCENT PHYSICAL DISABILITY, AND TRAVIS WHO HAD 60 PERCENT PHYSICAL DISABILITY AND THEIR RETIRED PAY WAS COMPUTED UNDER THE PAY RATES IN EFFECT COMMENCING OCTOBER 1, 1949, ON THE BASIS OF 70 PERCENT AND 60 PERCENT, RESPECTIVELY, OF THE APPROPRIATE ACTIVE-DUTY PAY. METHOD 2 ALSO WAS APPLIED IN THE CASE OF CYRIL A. PHELAN, WHO HAD 100 PERCENT DISABILITY AND EFFECTIVE OCTOBER 1, 1949, HIS PAY WAS COMPUTED AT75 PERCENT--- THE MAXIMUM PERCENTAGE MULTIPLIER AUTHORIZED BY THE LAW--- OF THE APPROPRIATE ACTIVE-DUTY PAY. EARL EVERETT COX, ONE OF THE PLAINTIFFS IN PHELAN, ET AL. V. UNITED STATES, REFERRED TO ABOVE, HAD 60 PERCENT DISABILITY AND EFFECTIVE OCTOBER 1, 1949, HIS RETIRED PAY WAS COMPUTED AT 60 PERCENT OF THE APPROPRIATE ACTIVE-DUTY PAY. UNDER METHOD 1, HOWEVER, THE PERCENTAGE MULTIPLE WOULD HAVE BEEN FOR DETERMINATION ON THE BASIS OF THE SPECIFIED ACTIVE SERVICE WHICH DOES NOT INCLUDE INACTIVE TIME ON THE RETIRED LIST.
THE RECORD SHOWS THAT YOUR PERCENTAGE OF DISABILITY WAS ZERO. THEREFORE, IN ORDER FOR YOU TO RECEIVE ANY RETIRED PAY COMPUTED ON THE BASIC PAY WHICH YOU WOULD HAVE RECEIVED HAD YOU BEEN ON ACTIVE DUTY ON OCTOBER 1, 1949, THE MULTIPLIER IN YOUR CASE WOULD HAVE TO BE DETERMINED UNDER METHOD 1 WHICH IS THE YEARS OF ACTIVE SERVICE TO WHICH YOU ARE ENTITLED (22), MULTIPLIED BY 2 1/2 PERCENT, OR 55 PERCENT. THE ACTIVE-DUTY PAY OF A CAPTAIN WITH OVER 30 YEARS OF SERVICE, EFFECTIVE OCTOBER 1, 1949, WAS $698.25 AND 55 PERCENT THEREOF IS $384.04. SINCE THAT RATE OF RETIRED PAY IS LESS THAN RETIRED PAY OF $412.50, COMPUTED AT 75 PERCENT OF THE ACTIVE- DUTY PAY RATES UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AND AS THE HIGHER RATE WAS USED IN COMPUTING THE RETIRED PAY DUE YOU FROM OCTOBER 1, 1949, THE PHELAN AND OTHER COURT CASES AFFORD NO BASIS FOR THE PAYMENT TO YOU OF ADDITIONAL RETIRED PAY.