B-158035, JAN. 10, 1966

B-158035, JAN. 10, 1966

TO MR. FRED W. SHIELDS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 7, 1965, REQUESTING REVIEW OF THE DISALLOWANCE BY THE CLAIMS DIVISION OF OUR OFFICE ON DECEMBER 15, 1964, OF THE CLAIM OF WILLIAM CATO SELLS FOR ADJUSTMENT OF HIS RETIRED PAY ON THE BASIS OF THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF CALLAHAN V. UNITED STATES, CT.CL. NO. 349-62, DECIDED FEBRUARY 14, 1964. YOU SAY THAT IF MR. SELLS IS CREDITED WITH HIS ACTIVE DUTY DURING "THE KOREAN WAR" AND WITH THE CONSTRUCTIVE SERVICE WHICH YOU BELIEVE CREDITABLE TO HIM UNDER THE HOLDING IN THE CALLAHAN CASE, HIS RETIRED PAY SHOULD BE COMPUTED ON THE BASIS OF OVER 23 1/2 YEARS OF SERVICE AND THAT THE RETIRED PAY HE HAS RECEIVED IS LESS THAN THE RETIRED PAY TO WHICH HE IS ENTITLED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30,1949.

THE REPORT FURNISHED US BY THE BUREAU OF NAVAL PERSONNEL INDICATES THAT WHEN MR. SELLS TRANSFERRED TO THE FLEET RESERVE ON FEBRUARY 25, 1946, HE WAS CREDITED WITH 21 YEARS, 4 MONTHS, AND 19 DAYS OF SERVICE FOR PAY PURPOSES AND 21 YEARS, 8 MONTHS, AND 1 DAY OF SERVICE FOR TRANSFER PURPOSES, INCLUDING 1 YEAR, 1 MONTH, AND 3 DAYS OF CONSTRUCTIVE SERVICE. HE SERVED ON ACTIVE DUTY FROM FEBRUARY 6, 1951, TO MARCH 5, 1953, A PERIOD OF 2 YEARS AND 1 MONTH, WHICH, WHEN ADDED TO THE 21 YEARS, 8 MONTHS, AND 1 DAY OF SERVICE CREDITED TO HIM FOR TRANSFER PURPOSES, TOTALS 23 YEARS, 9 MONTHS AND 1 DAY. IT IS SHOWN THAT HE HELD THE GRADE OF LIEUTENANT (WHICH WAS THE HIGHEST GRADE SATISFACTORILY HELD BY HIM) WHEN HE WAS RELEASED FROM ACTIVE DUTY ON MARCH 5, 1953, AND IT APPEARS THAT AT THAT TIME HE WAS RECEIVING BASIC PAY AT THE MONTHLY RATE OF $459.42, WHICH WAS THE RATE PROVIDED BY THE ACT OF MAY 19, 1952, CH. 310, 66 STAT. 79, FOR LIEUTENANTS OF THE NAVY (0-3) WHO HAD COMPLETED OVER 22 YEARS OF SERVICE. HE WAS PLACED ON THE RETIRED LIST ON NOVEMBER 1, 1953, AND ADVANCED TO THE RANK OF LIEUTENANT.

THE RULE OF THE CALLAHAN CASE--- ALLOWING CREDIT FOR CERTAIN "CONSTRUCTIVE" SERVICE AS DISTINGUISHED FROM "ACTUAL" SERVICE IN THE COMPUTATION OF RETIRED PAY--- APPLIES ONLY TO THE COMPUTATION OF RETIRED OR RETAINER PAY UNDER THE PROVISIONS OF TITLE II OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1178-1180. IN OUR DECISION OF JUNE 7, 1962, B- 148824, COPY HEREWITH, WE HELD THAT A MEMBER WHO WAS TRANSFERRED TO THE FLEET RESERVE PRIOR TO OCTOBER 1, 1949, MAY NOT HAVE ACTIVE DUTY PERFORMED AFTER THAT DATE USED TO INCREASE RETIRED PAY OR RETAINER PAY UNLESS SUCH PAY IS COMPUTED AS PROVIDED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 832.

IN OUR DECISION OF AUGUST 5, 1958, B-135771, 38 COMP. GEN. 110, WE HELD THAT, IN CONSONANCE WITH THE CONCLUSION IN THE CASE OF WHITE V. UNITED STATES, 121 CT.CL. 1 (1951), ENLISTED MEMBERS OF THE NAVY WERE ENTITLED, UNDER AUTHORITY OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, TO COUNT THE CONSTRUCTIVE TIME RESULTING FROM MINORITY ENLISTMENTS AND SHORT TERM ENLISTMENTS NOT ONLY IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 204 OF THAT ACT, BUT ALSO IN DETERMINING THE MULTIPLIER FACTOR (BASED UPON THE NUMBER OF YEARS OF CREDITABLE "ACTIVE FEDERAL SERVICE") TO BE USED IN COMPUTING RETAINER PAY PURSUANT TO THE FORMULA PRESCRIBED IN SECTION 204, AS AMENDED. WE HAVE CONSIDERED, THEREFORE, THAT WHERE THE YEARS OF SERVICE CREDITED TO AN ENLISTED MAN AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE INCLUDE SUCH PERIODS OF CONSTRUCTIVE SERVICE, THIS IS THE BASE TO WHICH ACTIVE SERVICE PERFORMED AFTER TRANSFER SHOULD BE ADDED IN ORDER TO OBTAIN A NEW MULTIPLIER FACTOR UNDER SECTION 516 OF THE CAREER COMPENSATION ACT. APPEARS THAT, ON SUCH BASIS, MR. SELLS HAS COMPLETED 23 YEARS, 9 MONTHS, AND 1 DAY OF SERVICE (COUNTED AS 24 YEARS) FOR THE PURPOSE OF DETERMINING THE MULTIPLIER FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER SECTION 516 AND IT FURTHER APPEARS THAT HIS RETIRED PAY COMPUTED UNDER THAT SECTION EXCEEDS THE RETIRED PAY WHICH HE HAS RECEIVED.

MR. SELLS' CLAIM FOR INCREASED RETIRED PAY BASED ON CREDIT FOR CONSTRUCTIVE TIME WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MAY 15, 1964. THEREFORE, ANY ADJUSTMENT OTHERWISE DUE HIM UNDER SECTION 516 FOR THE PERIOD PRIOR TO MAY 15, 1954, IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061. HIS RETIRED PAY FOR THE PERIOD BEGINNING MAY 15, 1954, WILL BE RECOMPUTED BY THE CLAIMS DIVISION OF OUR OFFICE. IT IS NOTED, HOWEVER, THAT THE POWER OF ATTORNEY IN THIS CASE IS ADDRESSED TO BOTH KING AND KING AND SHIELDS AND SHIELDS. SETTLEMENT WILL ISSUE IN THIS CASE, THEREFORE, UNTIL THE CLAIMS DIVISION OF OUR OFFICE IS ADVISED BY MR. SELLS AS TO WHOM THE CHECK IS TO BE SENT. ANY COMMUNICATION REGARDING THIS MATTER SHOULD REFER TO CLAIM NO. Z- 859526. THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY, B-158035, TRANSMITTING A COPY OF THIS DECISION TO KING AND KING.