B-151080, JULY 1, 1963, 43 COMP. GEN. 6

B-151080, JULY 1, 1963, 43 COMP. GEN. 6

PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - GENERAL RULE. PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - EVIDENCE. PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - APPLICATION. PAY - RETIRED - DISABILITY - RE RETIREMENT - ELECTION REQUIREMENT - APPLICATION. PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - APPLICATION. PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - APPLICATION. THE HOLDING WITH RESPECT TO SELIGA TYPE RETIRED PAY BENEFITS UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 281 (1952 ED.), TO RETIRED FLEET RESERVISTS IN THE FORSTER AND ELLIS CASES DECIDED BY THE COURT OF CLAIMS ON NOVEMBER 2, 1962 (AFLAGUE, ET AL. V. UNITED STATES, CT.CL.NO. 212-56; COBB, ET AL. V. UNITED STATES, CT.CL.NO. 430-56, AND WILSON V. UNITED STATES, CT.CL.NO. 465-59), UNDER WHICH DISABILITY RETIRED PAY WAS BARRED TO THOSE MEMBERS WHO COULD NOT SHOW A TIMELY AND VALID ELECTION OF OPTION (A) TO QUALIFY FOR DISABILITY RETIRED PAY UNDER SECTION 411 OR COULD NOT ESTABLISH THAT THE FAILURE TO MAKE AN ELECTION WAS DUE TO ERRONEOUS OR MISLEADING INFORMATION BY THE NAVY WILL BE FOLLOWED IN FUTURE CLAIMS BUT PRIOR SELIGA TYPE PAYMENTS WILL NOT BE RECOVERED, ALSO, SINCE THE HOLDING LEFT UNDISTURBED RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511, 37 U.S.C. 311 (B), EVEN THOUGH NOT SUPPORTED BY AN ELECTION OF OPTION (B) UNDER SECTION 411, THE ACCEPTANCE OF THE PAYMENTS WILL BE CONSIDERED A RATIFICATION OF THE OPTION (B) AND THE PAYMENTS WILL NOT BE DISTURBED. FOR RETIRED FLEET RESERVISTS TO QUALIFY FOR DISABILITY RETIRED PAY (SELIGA TYPE BENEFITS) UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, THE EVIDENCE THAT THE MEMBER EXERCISED A PROPER ELECTION OF OPTION (A) OR THAT HE WAS MISLED BY THE NAVY SO AS NOT TO ELECT MUST BE CLEARLY SHOWN FROM ALL THE FACTS AND CIRCUMSTANCES PRESENTED IN EACH CASE AND IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING ENTITLEMENT THE RETIRED PAY CLAIMS SHOULD BE FORWARDED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, FOR ACTION. A RETIRED NAVY ENLISTED MAN WHO WAS CERTIFIED FOR DISABILITY RETIRED PAY (SELIGA TYPE BENEFITS) FOR THE PERIOD FEBRUARY 4, 1953 TO JULY 31, 1962, ON THE BASIS OF A CERTIFICATION ISSUED AFTER NOVEMBER 7, 1962, THE DATE OF THE COURT OF CLAIMS DECISION IN THE FORSTER AND ELLIS CASES (CT.CL.NO. 212 -56 AND CT.CL.NO. 430-56) BARRING DISABILITY RETIRED PAY WHEN THE RECORD DOES NOT CONTAIN EVIDENCE OF AN ELECTION TO QUALIFY UNDER OPTION (A) OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, OR THAT THE FAILURE OF THE MEMBER TO MAKE AN ELECTION WAS DUE TO ERRONEOUS OR MISLEADING INFORMATION BY THE NAVY IS NOT REQUIRED TO REFUND THE PAYMENTS BUT FOR THE PERIOD AFTER JULY 31, 1962, THE MEMBER'S PAY SHOULD BE CONTINUED ON THE SAME BASIS ON WHICH HIS RETIRED PAY WAS COMPUTED BEFORE THE CERTIFICATION FOR SELIGA TYPE BENEFITS. A RETIRED NAVY ENLISTED MEMBER WHO HAD LESS THAN 30 YEARS' CREDITABLE SERVICE ON THE DATE HE WAS PLACED ON THE RETIRED LIST IN 1944 AND WHO WAS CERTIFIED FOR SELIGA TYPE BENEFITS ON THE BASIS OF AN OPINION OF THE BUREAU OF MEDICINE AND SURGERY THAT HIS DISABILITY WAS INCURRED WHILE HE WAS RECEIVING BASIC PAY, EVEN THOUGH THE RECORD DOES NOT SHOW AN ELECTION OF OPTION (A) UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, COMES UNDER THE RESTRICTIONS BARRING DISABILITY RETIRED PAY TO MEMBERS WHO DID NOT MAKE OPTION (A) ELECTIONS IS NOT REQUIRED TO REFUND THE PAYMENTS FOR THE PERIOD CERTIFIED, BUT FOR THE PERIOD FOLLOWING THE CERTIFICATION THE MEMBER SHOULD HAVE HIS RETIRED PAY COMPUTED ON THE BASIS IT WAS COMPUTED SINCE OCTOBER 1, 1949 -- THE DATE OF THE CAREER COMPENSATION ACT OF 1949. A RETIRED FLEET RESERVIST WHO WAS CERTIFIED FOR SELIGA TYPE RETIRED PAY BENEFITS FOR THE PERIOD NOVEMBER 5, 1952, TO AUGUST 31, 1961, ON THE BASIS OF A CORRECTION OF RECORDS IN APRIL 1962 CHANGING THE CHARACTER OF HIS RETIREMENT FROM YEARS OF SERVICE TO PHYSICAL DISABILITY RETROACTIVELY TO JULY 1, 1945, MAY NOT BE REGARDED AS IN A SECTION 411 STATUS FOR DISABILITY RETIRED PAY, AND, THEREFORE, WHILE THE DISABILITY RETIRED PAY RECEIVED UNDER THE CERTIFICATION DOES NOT HAVE TO BE REFUNDED, RETIRED PAY FOR THE PERIOD FOLLOWING THE CERTIFICATION (SEPTEMBER 1, 1961) SHOULD BE COMPUTED AT THE RATE BEING PAID PRIOR TO THE CERTIFICATION ACTION. A NAVY ENLISTED MEMBER WHO WAS ADVISED BY THE NAVY DEPARTMENT IN 1951 THAT HE WAS NOT ENTITLED TO BENEFITS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 ALTHOUGH HE HAD BEEN RETIRED IN 1941 FOR DISABILITY AND THEN SERVED ON ACTIVE DUTY FROM 1942 TO 1945 WHEN HE WAS RELEASED WITH A DISABILITY RATING OF "ZERO" IS REGARDED AS HAVING BEEN MISINFORMED AS TO HIS SECTION 411 STATUS AND THE CERTIFICATION OF OCTOBER 19, 1962, ALLOWING THE MEMBER SELIGA TYPE BENEFITS FOR THE PERIOD JULY 1, 1952, TO JULY 31, 1962, IS PROPER UNDER THE FORSTER AND ELLIS CASES.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, JULY 1, 1963:

REFERENCE IS MADE TO LETTER FROM YOUR OFFICE "XO:HA:BJM" OF FEBRUARY 6, 1963, ADDRESSED TO OUR CLAIMS DIVISION REQUESTING CLARIFICATION OF THE ACTION TAKEN IN CERTIFYING SELIGA TYPE BENEFITS IN THE FOLLOWING CASES---

TABLE

FILE DATE OF GAO

SERVICE NO. CLAIM NO. CERTIFICATION CHCARP EARL C. HAWLEY, USN (RETIRED) 300 007 Z 1357818 11/29/62 FRANK T. JONES, CQM, USN (RETIRED) 256-14-19

2525970 3/14/62 CARL E. MALONEY, CBM, USN (RETIRED) 141-51-30 0268891 5/10/62 JOHN T. OWENS, CMM, USN (RETIRED) 174-34-06 Z-1409008 10/19/62

IT WILL BE OBSERVED THAT, WITH THE EXCEPTION OF HAWLEY, THE SETTLEMENTS WERE ISSUED PRIOR TO NOVEMBER 7, 1962, THE DATE THAT THE COURT OF CLAIMS RENDERED DECISION IN THE CASES OF PAUL F. FORSTER (PLAINTIFF NO. 13, IN AFLAGUE, ET AL. V. UNITED STATES, CT.CL.NO. 212 56), GEORGE C. ELLIS (PLAINTIFF NO. 2, IN COBB, ET AL. V. UNITED STATES, CT.CL. NO. 430-56), AND FRANK BRIGGS WILSON V. UNITED STATES, CT.CL. NO. 465-59.

THE PRINCIPLES UNDERLYING THE COURT OF CLAIMS DECISION RENDERED ON NOVEMBER 7, 1962, IN THE FORSTER, ELLIS AND WILSON CASES ARE THAT ENLISTED MEMBERS OF THE NAVAL SERVICE WHO (A) WERE INITIALLY PLACED ON THE RETIRED LIST OF THE NAVY FROM THE FLEET RESERVE BY REASON OF 30 YEARS' SERVICE, (B) THEREAFTER WERE RECALLED TO ACTIVE DUTY, (C) INCURRED A PHYSICAL DISABILITY WHILE SERVING ON SUCH ACTIVE DUTY UNDER CIRCUMSTANCES WHICH WOULD HAVE QUALIFIED THEM TO RECEIVE DISABILITY RETIRED PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816-825, 37 U.S.C. 271-285 (1952 ED.), AND (D) WERE RELEASED FROM SUCH ACTIVE DUTY PRIOR TO OCTOBER 1, 1949, BY REASON OF PHYSICAL DISABILITY WERE

(1) "RE-RETIRED" BY REASON OF PHYSICAL DISABILITY AND BEING IN RECEIPT OF DISABILITY RETIRED PAY ON OCTOBER 1, 1949, WERE THEREFORE WITHIN THE SCOPE AND PURVIEW OF SECTION 411 OF THE 1949 LAW, 63 STAT. 823, 37 U.S.C. 281 (1952 ED.), AND

(2) IN ORDER TO GAIN THE INCREASED RETIRED PAY BENEFITS WHICH FLOW FROM THE RULE IN THE SELIGA CASE, DECIDED MARCH 6, 1957, 137 CT.CL. 710, IT MUST BE ESTABLISHED THAT SUCH INDIVIDUALS MADE A TIMELY AND VALID ELECTION OF OPTION (A) UNDER SECTION 411, 37 U.S.C. 281 (A) (1952 ED.), OR THAT THE DEPARTMENT OF THE NAVY AFFIRMATIVELY GAVE THEM MISINFORMATION, BY COMMISSION OR OMISSION, WHICH INDUCED OR COMPELLED THEM TO MAKE A DECISION LESS FAVORABLE THAN THAT TO WHICH THEY WERE ENTITLED UNDER THE LAWS APPLICABLE IN EACH INDIVIDUAL CASE.

AS A GENERAL RULE IT MAY BE STATED THAT SECTION 411 MEMBERS ARE NOT ENTITLED TO TITLE IV DISABILITY RETIREMENT PAY (AND THE CORRESPONDING BENEFITS OF THE SELIGA RULE) UNLESS THEY (1) ARE QUALIFIED THEREFOR (DISABILITY INCURRED WHILE IN RECEIPT OF BASIC PAY, ETC.) AND (2) MADE A VALID AND TIMELY ELECTION OF OPTION (A) IN SECTION 411. ALSO, SECTION 411 MEMBERS DID NOT BECOME ENTITLED EFFECTIVE APRIL 1, 1955, TO THE RETIRED PAY BENEFITS OF THE FAGAN (GOVER) CASE (CT.CL.NO. 535 57, DECIDED MAY 4, 1960) (METHOD (B) SECTION 511, 37 U.S.C. 311 (B) ( UNLESS THEY HAD PREVIOUSLY MADE A TIMELY AND VALID ELECTION OF OPTION (B) IN SECTION 411, 37 U.S.C. 281 (B) (1952 ED.). IN THE ABSENCE OF ANY ELECTION UNDER SECTION 411 THE MEMBER CONTINUED ENTITLED AUTOMATICALLY UNDER SECTION 519, 37 U.S.C. 318 (1952 ED.), TO RECEIVE THE RETIRED PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, WITH SUBSEQUENT PERCENTAGE INCREASES THEREIN AS PROVIDED BY LAW.

IN THE DECISION OF NOVEMBER 7, 1962, THE COURT EMPHASIZED THE FACT THAT THE RECORD BEFORE IT DID NOT SHOW THAT FORSTER OR ELLIS OR THE DEPARTMENT OF THE NAVY HAD TAKEN ANY ACTION WHATSOEVER WITH RESPECT TO THE ELECTION OF OPTIONS PROVISIONS OF SECTION 411 OF THE 1949 LAW. THE COURT, DENYING THEIR CLAIMS FOR SELIGA BENEFITS ON THE BASIS THAT THEY HAD NOT MADE A TIMELY AND VALID ELECTION OF OPTION (A) UNDER SECTION 411 IN EFFECT ALSO HELD THAT THEY HAD NOT ESTABLISHED ANY ACTION OR MISINFORMATION ON THE PART OF THE NAVY WHICH HAD INDUCED OR COMPELLED THEM TO MAKE AN ERRONEOUS DECISION NOT TO MAKE AN ELECTION, ALTHOUGH THE DEPARTMENT OF THE NAVY HAD PLACED FORSTER AND ELLIS IN SECTION 511 STATUS BY PAYING THEM METHOD (B) SECTION 511 RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949.

THE HOLDING IN THE FORSTER AND ELLIS CASES WHICH HAS NOW BECOME FINAL THUS BARS, IN THE CIRCUMSTANCES THEREIN OUTLINED, ANY SELIGA BENEFITS UNDER TITLE IV OF THE 1949 LAW BUT LEAVES UNDISTURBED, NOTWITHSTANDING THE ABSENCE OF AN OPTION (B) ELECTION UNDER SECTION 411, THE METHOD (B), SECTION 511 STATUS. THAT HOLDING HENCEFORTH WILL BE FOLLOWED BY THIS OFFICE IN ALL LIKE CASES. WHILE SELIGA TYPE SETTLEMENTS PREVIOUSLY CERTIFIED BY THIS OFFICE AND ANY PRIOR SIMILAR PAYMENTS WHICH HAVE BEEN MADE BY THE DEPARTMENT OF THE NAVY WILL NOT BE DISTURBED, THE FORSTER AND ELLIS RULE PRECLUDES THE PAYMENT OF ANY FURTHER CLAIMS FOR SELIGA BENEFITS UNLESS THE RECORD CLEARLY ESTABLISHES A TIMELY AND VALID ELECTION OF OPTION (A) UNDER SECTION 411 OR MISLEADING OR ERRONEOUS INFORMATION ON THE PART OF THE NAVY WHICH INDUCED OR COMPELLED A DECISION BY THE ENLISTED MEMBER LESS FAVORABLE THAN ONE HE WAS ENTITLED TO MAKE UNDER THE LAW.

FORSTER, ELLIS AND WILSON (PLAINTIFFS IN THE DECISION OF NOVEMBER 7,1962) AND MANY OTHERS IN LIKE CIRCUMSTANCES WERE PAID RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE 1949 LAW, 63 STAT. 829. IT APPEARS THAT THE DEPARTMENT OF THE NAVY MADE SUCH PAYMENTS ON THE BASIS THAT, SINCE THE INDIVIDUALS INVOLVED WERE NOT CONSIDERED TO BE WITHIN THE PURVIEW OF SECTION 411, THEIR RETIRED PAY STATUS WAS DEEMED TO BE WITHIN THE SCOPE OF SECTION 511. THE HOLDING IN THE DECISION OF NOVEMBER 7, 1962, THAT FORSTER, ELLIS AND WILSON WERE IN FACT WITHIN THE SCOPE OF SECTION 411 DID NOT QUESTION THE LEGALITY OF THE METHOD (B) SECTION 511 PAYMENTS MADE IN SUCH CASES. THE ACCEPTANCE OF THOSE PAYMENTS BY THE ENLISTED MAN CONCERNED, WHILE NOT EXPRESSLY SUPPORTED BY A TIMELY AND VALID ELECTION OF OPTION (B) UNDER SECTION 411-- - AN ISSUE WHICH WAS NOT CONSIDERED BY THE COURT--- MAY, IN THE CIRCUMSTANCES THUS PRESENTED, BE TREATED AS A RATIFICATION OF THE OPTION (B), SECTION 411 ELECTION MADE FOR THEM BY THE NAVY. SEE B-149388, SEPTEMBER 4, 1962, COPY ENCLOSED. ACCORDINGLY, PAST AND CONTINUING PAYMENTS OF METHOD (B) SECTION 511 RETIRED PAY WHICH HAVE BEEN MADE IN SUCH CASES BY THIS OFFICE OR BY THE DEPARTMENT OF THE NAVY WILL NOT BE DISTURBED.

ON THE QUESTION OF WHAT EVIDENCE MAY BE CONSIDERED AS ESTABLISHING AN ELECTION UNDER SECTION 411, THE CONCLUSION REACHED BY THE COURT OF CLAIMS IN THE WILSON CASE, I.E., THAT WILSON'S REQUESTS FOR AN EVALUATION OF HIS PHYSICAL DISABILITY UNDER SECTION 411 AND THE NAVY'S RESPONSE THAT HIS CASE DID NOT COME UNDER THAT SECTION CONSTITUTES AN ELECTION, IS SO UNCERTAIN THAT IT MAY NOT BE USED AS A PRECEDENT IN OTHER SIMILAR CASES. THE HOLDING IN THE WILSON CASE IN THAT RESPECT WILL NOT BE FOLLOWED IN OTHER SIMILAR CASES, AS TO WHICH THERE WILL BE APPLIED THE GENERAL RULE THAT WHETHER AN INDIVIDUAL EXERCISED A PROPER SECTION 411 ELECTION, OR WAS MISLED SO AS TO NOT ELECT AT ALL, WILL BE FOR DETERMINATION FROM ALL THE FACTS AND CIRCUMSTANCES PRESENTED IN EACH PARTICULAR CASE. IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING ENTITLEMENT THERETO, IT WOULD APPEAR ADVISABLE THAT ALL PENDING AND FUTURE CLAIMS FOR SELIGA OR FAGAN (GOVER) TYPE BENEFITS BE FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT ACTION HERE.

THE RETIRED PAY STATUS OF EARL C. HAWLEY, CLAIMS FILE NO. Z-1357818, GAO CERTIFICATION DATED NOVEMBER 29, 1962, FALLS SQUARELY WITHIN THE SCOPE OF THE FORSTER AND ELLIS CASES. THE ACTION TAKEN IN THE CERTIFICATION OF NOVEMBER 29, 1962, ALLOWING HIM SELIGA BENEFITS FOR THE PERIOD FEBRUARY 4, 1953, TO JULY 31, 1962, INCLUSIVE, WILL NOT BE DISTURBED. NO PROPER BASIS IS PRESENTED, HOWEVER, TO ALLOW HIM SELIGA BENEFITS FOR ANY PERIOD SUBSEQUENT TO JULY 31, 1962. EFFECTIVE AUGUST 1, 1962, HAWLEY'S RETIRED PAY ACCOUNT SHOULD BE CONTINUED ON THE SAME BASIS ON WHICH HIS RETIRED PAY WAS COMPUTED BY THE DEPARTMENT OF THE NAVY PRIOR TO THE ACTION TAKEN IN THE CERTIFICATION OF NOVEMBER 29, 1962.

FRANK T. JONES, CLAIMS FILE NO. 2525970, GAO CERTIFICATION DATED MARCH 14, 1962, HAD LESS THAN 30 YEARS' SERVICE WHEN PLACED ON THE RETIRED LIST FEBRUARY 1, 1944, AND SO IT IS CLEAR THAT THE NAVY CONSIDERED HIM AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY. HOWEVER, HE WAS NOT EVALUATED AND NO OPPORTUNITY TO MAKE A SECTION 411 ELECTION APPEARS TO HAVE BEEN EXTENDED TO HIM, APPARENTLY BECAUSE THE NAVY THEN FELT THAT HIS PHYSICAL DISABILITY HAD NOT BEEN INCURRED WHILE IN RECEIPT OF BASIC PAY AND HENCE THAT HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 411. ALTHOUGH THE NAVY CONSIDERED HIM AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY, HE WAS PLACED EFFECTIVE OCTOBER 1, 1949, IN METHOD (B) OF SECTION 511 WITHOUT THE REQUIRED ELECTION OF OPTION (B) UNDER SECTION 411, THEREBY TREATING HIM AS IN A NONDISABILITY SECTION 511 STATUS.

WHILE JONES DIFFERS FROM FORSTER AND ELLIS IN THE MATTER OF HAVING LESS THAN 30 YEARS' CREDITABLE SERVICE ON THE DATE HE WAS PLACED ON THE RETIRED LIST OF THE NAVY, FEBRUARY 1, 1944, THIS DISTINCTION DOES NOT REMOVE HIM FROM THE SCOPE OF THE HOLDING IN THE DECISION OF NOVEMBER 7, 1962, NOR DOES THE OPINION EXPRESSED BY THE BUREAU OF MEDICINE AND SURGERY IN LETTER OF MARCH 5, 1962, THAT JONES' DISABILITY WAS INCURRED WHILE IN RECEIPT OF BASIC PAY--- ON WHICH OUR CLAIMS DIVISION SEEMS TO HAVE RELIED ON MARCH 14, 1962, IN CERTIFYING SELIGA BENEFITS--- AVOID THE RESTRICTIONS IMPOSED IN THE FORSTER AND ELLIS DECISIONS. ACCORDINGLY, WHILE THE ACTION TAKEN IN THE CERTIFICATION OF MARCH 14, 1962, WILL NOT BE REVERSED, NO PROPER BASIS IS PRESENTED TO PAY SELIGA BENEFITS TO JONES FROM FEBRUARY 1, 1962, THE DATE FOLLOWING THE PERIOD COVERED IN THE CERTIFICATION OF MARCH 14, 1962. THEREFORE, EFFECTIVE AS OF FEBRUARY 1, 1962, JONES' RETIRED PAY ACCOUNT SHOULD BE CONTINUED ON THE SAME BASIS ON WHICH HIS RETIRED PAY HAS BEEN COMPUTED BY THE DEPARTMENT OF THE NAVY SINCE OCTOBER 1, 1949.

CARL E. MALONEY, CLAIMS FILE NO. 0268891, GAO CERTIFICATION DATED MAY 10, 1962, WAS TREATED AS A 30-YEAR RETIREE EFFECTIVE FROM JULY 1, 1946. APRIL 1962 THE BUREAU OF NAVAL PERSONNEL CHANGED THE RECORDS TO SHOW HIM AS HAVING BEEN RETIRED FOR PHYSICAL DISABILITY AS OF JULY 1, 1945. EFFECTIVE FROM OCTOBER 1, 1949, HE WAS PAID UNDER METHOD (B) OF SECTION 511. IN THE STIPULATED JUDGMENT OF NOVEMBER 4, 1952, AS PLAINTIFF NO. 5, IN THE CASE OF MAAR, ET AL. V. UNITED STATES, CT.CL.NO. 50223, HIS PAY WAS READJUSTED TO THE SANDERS BASIS (120 CT.CL. 501) THROUGH JUNE 30, 1952, PRESUMABLY UNDER AUTHORITY OF METHOD (A) IN SECTION 511, 37 U.S.C. 311 (A).

THE BUREAU OF MEDICINE AND SURGERY IN A REPORT DATED FEBRUARY 19, 1962, EXPRESSES THE VIEW THAT MALONEY'S DISABILITY WAS INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY. THIS REPORT TOGETHER WITH THE CHANGE MADE IN APRIL 1962 IN THE CHARACTER OF HIS RETIREMENT FROM THAT FOR YEARS OF SERVICE TO RETIREMENT ON ACCOUNT OF PHYSICAL DISABILITY APPEARS TO HAVE BEEN THE BASIS FOR THE ACTION OF MAY 10, 1962, ALLOWING HIM SELIGA BENEFITS FOR THE PERIOD NOVEMBER 5, 1952, TO AUGUST 31, 1961, INCLUSIVE. THE ACTION AUTHORIZING SELIGA BENEFITS THUS TREATED MALONEY AS HAVING BEEN IN A SECTION 411 STATUS EFFECTIVE FROM OCTOBER 1, 1949, AND AS HAVING BEEN DENIED THE BENEFITS OF OPTION (A) IN SECTION 411 BY REASON OF RECEIVING INCORRECT INFORMATION PRIOR TO MIDNIGHT OCTOBER 1, 1954, CONCERNING HIS RETIRED PAY STATUS.

NOTWITHSTANDING THE COMMENT IN NAVY FINANCE CENTER LETTER OF FEBRUARY 6, 1963, THAT NO DETERMINATION WAS MADE IN THIS CASE BY THE SECRETARY OF THE NAVY AS PROVIDED IN EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, OR THE FACT THAT THERE IS NO RECORD OF ANY SECTION 411 ELECTION BY MALONEY AND THAT NO AUTHORITY IS CITED IN BUREAU OF NAVAL PERSONNEL LETTER OF APRIL 24, 1962, IN SUPPORT OF THE "RETROACTIVE" CHANGE IN MALONEY'S STATUS FROM RETIREMENT FOR YEARS OF SERVICE TO RETIREMENT, AT AN EARLIER DATE, FOR PHYSICAL DISABILITY, THE EVIDENCE REASONABLY SUPPORTS THE ACTION TAKEN MAY 10, 1962. ACCORDINGLY, THAT SETTLEMENT WILL NOT BE DISTURBED. HOWEVER, EVEN IF IT BE ASSUMED THAT THE CHANGE MADE IN APRIL 1962 IN THE CHARACTER OF MALONEY'S RETIREMENT WAS PROPER AND RETROACTIVELY EFFECTIVE SO AS TO BRING HIM WITHIN THE SCOPE OF SECTION 411, THE HOLDING IN THE FORSTER AND ELLIS DECISION OF NOVEMBER 7, 1962, PRECLUDES ANY FURTHER ACTION IN THE MATTER. THEREFORE, MALONEY'S RETIRED PAY STATUS SHOULD REMAIN, EFFECTIVE FROM SEPTEMBER 1, 1961, THE DATE FOLLOWING THE PERIOD COVERED IN THE CERTIFICATION OF MAY 10, 1962, AT THE MONTHLY BASIC RATE OF PAY THAT HE WAS BEING PAID BY THE DEPARTMENT OF THE NAVY PRIOR TO THE ACTION TAKEN ON MAY 10, 1962. JOHN T. OWENS, CLAIMS FILE NO. Z-1409008, GAO CERTIFICATION DATED OCTOBER 19, 1962, WAS RETIRED FOR A PHYSICAL DISABILITY ON JUNE 1, 1941, WHICH THE BUREAU OF MEDICINE AND SURGERY IN LETTER OF OCTOBER 1, 1962, INDICATES WAS INCURRED WHILE IN RECEIPT OF BASIC PAY. OWENS AGAIN SERVED ON ACTIVE DUTY FROM MARCH 30, 1942, TO AUGUST 9, 1945, INCLUSIVE, AND HIS DISABILITY WAS RATED AT ,ZERO" PERCENTAGE IN MARCH 1951 PURSUANT TO SECTION 411. IT APPEARS THAT BY BUREAU OF NAVAL PERSONNEL LETTER OF OCTOBER 17, 1951, HE WAS ADVISED THAT HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 411. ALSO, IT APPEARS THAT HE WAS FURTHER ADVISED THAT ANY SECTION 411 ACTION THERETOFORE TAKEN BY HIM UNDER AUTHORITY OF BUREAU OF NAVAL PERSONNEL LETTER ON JUNE 28, 1951, WAS CANCELED. IN A LETTER DATED AUGUST 30, 1962, THE NAVY FINANCE CENTER REPORTS THAT OWENS DID NOT MAKE A SECTION 411 ELECTION.

EFFECTIVE OCTOBER 1, 1949, OWENS WAS ENTITLED UNDER THE SELIGA RULE (HE HAD OVER 20 YEARS OF ACTIVE SERVICE--- SEE SECTION 402 (F), 63 STAT. 820, 37 U.S.C. 272 (F) (1952 ED.) ( TO GREATER RETIRED PAY, $154.35 PER MONTH COMPUTED ON HIS YEARS OF SERVICE AS PRESCRIBED IN SECTION 402 (D) (1), 63 STAT. 818, 37 U.S.C. 272 (D) (1) (1952 ED.), THAN THE METHOD (B) SECTION 511 PAY WHICH THE NAVY PAID HIM AT $146.63 PER MONTH OR THE SANDERS RATE OF PAY, $140.25 PER MONTH ($147.26 PER MONTH FOR THE PERIOD COVERED IN THE STIPULATED JUDGMENT OF APRIL 15, 1953, RENDERED IN HIS FAVOR AS PLAINTIFF NO. 45, IN THE CASE OF MIMS, ET AL. V. UNITED STATES, CT.CL.NO. 49645, WHICH INCLUDED THE COMPROMISE 5 PERCENT FOR GOOD CONDUCT). SINCE IT CLEARLY APPEARS FROM THE RECORD THAT HE WAS MISINFORMED AS TO HIS SECTION 411 STATUS, THE ACTION TAKEN IN THE CERTIFICATION OF OCTOBER 19, 1962, ALLOWING SELIGA BENEFITS FOR THE PERIOD JULY 1, 1952, TO JULY 31, 1962, INCLUSIVE, WAS PROPER AND NOT INCONSISTENT WITH THE HOLDING IN THE FORSTER AND ELLIS CASES.