B-104379, NOV. 25, 1964

B-104379: Nov 25, 1964

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WAS BASED ON THE STATEMENTS CONTAINED IN BUREAU OF MEDICINE AND SURGERY LETTER OF MAY 15. GOMES WAS RETIRED ON JULY 1. WAS NOT INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY. ARE CONSIDERED AS ESTABLISHING THAT MR. GOMES WAS RELEASED FROM ACTIVE DUTY ON JULY 21. THAT IS. WAS ALLOWED INCREASED RETIRED PAY FOR THE PERIOD JULY 22. COMPUTED ON THE BASIS OF THE LAWS AND RATES OF PAY THAT WERE IN EFFECT ON SEPTEMBER 30. WAS BASED UPON THE PROVISIONS OF METHOD (A) IN SECTION 511. HE WAS PAID ON THAT BASIS TO SEPTEMBER 16. WILL BE APPLIED BY THIS OFFICE AS A REASONABLE PERIOD OF TIME AFTER RECEIPT OF MISINFORMATION DURING WHICH A BASIC ELECTION MAY BE FILED UNDER SECTION 411 OF THE 1949 LAW.

B-104379, NOV. 25, 1964

TO KING AND KING:

IN LETTER DATED JUNE 9, 1964, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF AUGUST 15, 1963, B-104379, IN THE CASE OF ANTONE ELARIO GOMES, A RETIRED ENLISTED MAN OF THE UNITED STATES NAVY, NOW DECEASED. THE DECISION OF AUGUST 15, 1963, SUSTAINED THE ACTION TAKEN IN CLAIMS DIVISION SETTLEMENT DATED MAY 22, 1963, DISALLOWING THE SUBJECT MAN'S CLAIM WHICH HAD BEEN PRESENTED HERE IN YOUR LETTER OF JANUARY 22, 1963 (RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JANUARY 23, 1963), FOR INCREASED RETIRED PAY COMMENCING JANUARY 1, 1953, COMPUTED IN ACCORDANCE WITH THE HOLDING IN SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957).

THE CONCLUSION REACHED IN THE SETTLEMENT OF MAY 22, 1963, AND THE DECISION OF AUGUST 15, 1963, WAS BASED ON THE STATEMENTS CONTAINED IN BUREAU OF MEDICINE AND SURGERY LETTER OF MAY 15, 1963, ADDRESSED TO OUR CLAIMS DIVISION STATING THAT THE DISABILITY FOR WHICH MR. GOMES WAS RETIRED ON JULY 1, 1939, WAS NOT INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY. HOWEVER, THE ENCLOSURES RECEIVED WITH YOUR LETTER OF JUNE 9, 1964, ARE CONSIDERED AS ESTABLISHING THAT MR. GOMES WAS RELEASED FROM ACTIVE DUTY ON JULY 21, 1945, AND RE-RETIRED EFFECTIVE JULY 22, 1945, BY REASON OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY.

THE RECORD BEFORE US ALSO CONTAINS A COPY OF THE SECTION 411 ELECTION EXECUTED BY MR. GOMES ON APRIL 30, 1951, IN WHICH HE ELECTED OPTION (B) RETIRED PAY, THAT IS, HE ELECTED TO RECEIVE RETIRED PAY AT THE RATE PAYABLE ($138.92 PER MONTH) UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829. HOWEVER, IN A STIPULATED JUDGMENT ENTERED IN HIS FAVOR BY THE COURT OF CLAIMS MAY 5, 1953, MR. GOMES, AS PLAINTIFF NO. 136 IN PETER ADAMS, ET AL. V. UNITED STATES, CT.CL. NO. 50204, WAS ALLOWED INCREASED RETIRED PAY FOR THE PERIOD JULY 22, 1945, TO JUNE 30, 1952, INCLUSIVE, COMPUTED ON THE BASIS OF THE LAWS AND RATES OF PAY THAT WERE IN EFFECT ON SEPTEMBER 30, 1949. SINCE MR. GOMES ELECTED TO RECEIVE RETIRED PAY COMPUTED IN ACCORDANCE WITH OPTION (B) OF SECTION 411, THEREBY PLACING HIMSELF WITHIN THE PURVIEW OF SECTION 511, THE INCREASED RETIRED PAY FOUND DUE HIM UNDER THE STIPULATED JUDGMENT OF MAY 5, 1953, FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1952, WAS BASED UPON THE PROVISIONS OF METHOD (A) IN SECTION 511. THE RECORD SHOWS THAT THE DEPARTMENT OF THE NAVY ADJUSTED MR. GOMES' RETIRED PAY TO THE METHOD (A), SECTION 511 BASIS, RETROACTIVELY TO JULY 1, 1952, AND HE WAS PAID ON THAT BASIS TO SEPTEMBER 16, 1962, THE DATE OF HIS DEATH.

UNDER THE VIEWS RECENTLY EXPRESSED BY US IN THE CASE OF JOHN SILAS UPTON- -- SEE B-110493, OCTOBER 8, 1964--- AND IN THE ABSENCE OF A PRECEDENT ESTABLISHING A DEFINITE PERIOD FOR TAKING ACTION TO EFFECT A PROPER ELECTION UNDER SECTION 411 OF THE 1949 LAW, A 10-YEAR PERIOD SIMILAR TO THAT PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WILL BE APPLIED BY THIS OFFICE AS A REASONABLE PERIOD OF TIME AFTER RECEIPT OF MISINFORMATION DURING WHICH A BASIC ELECTION MAY BE FILED UNDER SECTION 411 OF THE 1949 LAW. THE SAME PERIOD OF TIME, 10 YEARS, WOULD SEEM APPLICABLE IN A CASE, SUCH AS THIS, WHERE THERE IS INVOLVED AN ENDEAVOR TO CHANGE AN ELECTION OF OPTION (B) TO AN ELECTION OF OPTION (A) UNDER SECTION 411.

MR. GOMES' RIGHT TO ELECT TO RECEIVE THE BENEFITS NOW CLAIMED--- ON THE BASIS THAT HE WAS FURNISHED ERRONEOUS INFORMATION--- ACCRUED NOT LATER THAN APRIL 30, 1951, THE DATE HE EXECUTED HIS ELECTION OF OPTION (B), SECTION 411, TO RECEIVE RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 511. THE RECORD SHOWS THAT THE RIGHT TO FILE AN ELECTION (CLAIM) FOR SECTION 402/D) BENEFITS UNDER THE SELIGA RULE WAS NOT EXERCISED PRIOR TO JANUARY 22, 1963, THE DATE OF YOUR LETTER SUBMITTING SUCH CLAIM TO THIS OFFICE ON HIS BEHALF. SINCE MORE THAN 10 YEARS AFTER THE RIGHT TO MAKE THE ELECTION NOW DESIRED HAD EXPIRED BEFORE JANUARY 22, 1963, WE MUST CONCLUDE THAT THERE HAS NOT BEEN FILED A TIMELY ELECTION OF OPTION (A) UNDER SECTION 411 TO RECEIVE RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402/D) OF THE 1949 LAW AS CONSTRUED BY THE COURT OF CLAIMS IN THE SELIGA CASE. ACCORDINGLY, THE DISALLOWANCE OF THE CLAIM FOR SELIGA BENEFITS IS UPHELD.

AS PREVIOUSLY STATED, MR. GOMES BROUGHT HIMSELF WITHIN THE PURVIEW OF SECTION 511 OF THE 1949 LAW ON APRIL 30, 1951, BY MAKING AN ELECTION OF OPTION (B) UNDER SECTION 411. UNDER SECTION 511 HE WAS ENTITLED TO RECEIVE RETIRED PAY COMPUTED UNDER METHOD (A) OR METHOD (B), WHICHEVER WAS THE GREATER. WHILE HIS RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1952, WAS FIRST COMPUTED UNDER METHOD (B), THE STIPULATED JUDGMENT OF MAY 5, 1953, ABOVE REFERRED TO, ALLOWED HIM INCREASED RETIRED PAY FOR THE PERIOD STATED UNDER METHOD (A). ALSO, AS PREVIOUSLY STATED, THE RECORD SHOWS THAT HE WAS PAID RETIRED PAY ON THAT BASIS BY THE DEPARTMENT OF THE NAVY DURING THE PERIOD JULY 1, 1952, TO SEPTEMBER 16, 1962, DATE OF HIS DEATH.

EFFECTIVE APRIL 1, 1955, HOWEVER, METHOD (B) SECTION 511 RETIRED PAY, IN HIS CASE, EXCEEDS THE AMOUNT OF RETIRED PAY HE WAS PAID UNDER METHOD (A). ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED THIS DATE TO OUR CLAIMS DIVISION TO ALLOW INCREASED RETIRED PAY, IF OTHERWISE CORRECT, FOR THE PERIOD APRIL 1, 1955, TO SEPTEMBER 16, 1962, INCLUSIVE, REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED UNDER METHOD (B) AND RETIRED PAY THAT MR. GOMES RECEIVED UNDER METHOD (A) OF SECTION 511.

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Nov 21, 2017

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    We deny the protest in part and dismiss the protest in part.
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Nov 20, 2017

Nov 16, 2017

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    We deny the protest.
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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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Nov 15, 2017

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