B-100187, SEP. 24, 1962

B-100187: Sep 24, 1962

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. WAS DISALLOWED. THE RECORD SHOWS THAT SUBSEQUENT TO RUDRIGUES' TRANSFER TO THE FLEET RESERVE IN 1935 HE WAS RECALLED AND SERVED ON ACTIVE DUTY DURING WORLD WAR II AND AGAIN FOR A FEW DAYS IN 1948. HE WAS AWARDED A SANDERS-TYPE JUDGMENT AS A PLAINTIFF IN THE CASE OF MCCARTHY. PRESUMABLY FOR THE REASON THAT THE FILING OF THAT ACTION AND ACCEPTANCE OF THE AMOUNT ALLOWED IN THE JUDGMENT ENTERED IN THAT CASE WAS REGARDED AS HAVING THE EFFECT OF TAKING HIS RETIRED PAY OUT OF THE PURVIEW OF SECTION 402 (D) AND ESTABLISHING IT ON A SAVED PAY BASIS. SINCE HE WAS NOT INFORMED AT THAT TIME OF THE RATE OF RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER SECTION 402 (D) BY INCLUDING CREDIT FOR INACTIVE TIME ON THE FLEET RESERVE AND THE RETIRED LIST IN DETERMINING THE BASIC PAY FACTOR.

B-100187, SEP. 24, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1962, REQUESTING REVIEW OF THE SETTLEMENT MADE BY OUR CLAIMS DIVISION IN THE CASE OF FLORENCIO RUDRIGUES, A RETIRED FLEET RESERVIST, IN WHICH HIS CLAIM FOR ADJUSTMENT IN RETIRED PAY BASED ON THE DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), WAS DISALLOWED.

THE RECORD SHOWS THAT SUBSEQUENT TO RUDRIGUES' TRANSFER TO THE FLEET RESERVE IN 1935 HE WAS RECALLED AND SERVED ON ACTIVE DUTY DURING WORLD WAR II AND AGAIN FOR A FEW DAYS IN 1948, COMPLETING OVER 21 YEARS OF ACTIVE SERVICE.

IN 1951 THE CLAIMANT DULY ELECTED UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 823, 37 U.S.C. 281, TO QUALIFY FOR DISABILITY RETIRED PAY UNDER TITLE IV OF THAT ACT AND TO RECEIVE HIS RETIRED PAY COMPUTED UNDER THE YEARS OF- SERVICE FORMULA AS PRESCRIBED IN SECTION 402 (D). ON MARCH 2, 1954, HE WAS AWARDED A SANDERS-TYPE JUDGMENT AS A PLAINTIFF IN THE CASE OF MCCARTHY, ET AL. V. UNITED STATES, CT.CL. NO. 49959, BASED ON A STIPULATION OF THE PARTIES. THE DEPARTMENT OF THE NAVY PAID RUDRIGUES RETIRED PAY COMPUTED UNDER THE SANDERS FORMULA BEGINNING OCTOBER 1, 1952, PRESUMABLY FOR THE REASON THAT THE FILING OF THAT ACTION AND ACCEPTANCE OF THE AMOUNT ALLOWED IN THE JUDGMENT ENTERED IN THAT CASE WAS REGARDED AS HAVING THE EFFECT OF TAKING HIS RETIRED PAY OUT OF THE PURVIEW OF SECTION 402 (D) AND ESTABLISHING IT ON A SAVED PAY BASIS. SINCE HE WAS NOT INFORMED AT THAT TIME OF THE RATE OF RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER SECTION 402 (D) BY INCLUDING CREDIT FOR INACTIVE TIME ON THE FLEET RESERVE AND THE RETIRED LIST IN DETERMINING THE BASIC PAY FACTOR, AS LATER ESTABLISHED IN THE SELIGA CASE, HIS ORIGINAL ELECTION MAY BE VIEWED AS CONTINUING IN EFFECT.

IN THE CLAIMS DIVISION SETTLEMENT OF JUNE 20, 1962, RUDRIGUES WAS ALLOWED AN ADJUSTMENT IN RETIRED PAY BASED ON THE DECISION IN THE CASE OF FAGEN, ET AL. (LEWIS L. GOVER) V. UNITED STATES, CT.CL. NO. 535-57, DECIDED MAY 4, 1960, AS A MEMBER WHOSE RETIRED PAY IS GOVERNED BY SECTION 511 OF THE CAREER COMPENSATION ACT. THAT ADJUSTMENT WAS COMPUTED ON 22 YEARS OF ACTIVE SERVICE FOR PERCENTAGE MULTIPLE PURPOSES IN ACCORDANCE WITH THE REPORT OF CREDITABLE SERVICE FURNISHED BY THE DEPARTMENT OF THE NAVY. ARE NOW IN RECEIPT OF A CORRECTED REPORT FROM THE DEPARTMENT OF THE NAVY WHICH SHOWS ACTIVE SERVICE TOTALING OVER 21 YEARS BUT LESS THAN 21 YEARS AND 6 MONTHS. THEREFORE THE CORRECT PERCENTAGE MULTIPLE BASED ON ACTIVE FEDERAL SERVICE IS 52 1/2 RATHER THAN 55.

IN THE ABSENCE OF AN AMENDMENT TO THE JUDGMENT CITED ABOVE, ENTERED IN RUDRIGUES' FAVOR ON MARCH 2, 1954, TO LIMIT THE PERIOD COVERED BY THAT JUDGMENT, THERE IS NO AUTHORITY FOR ALLOWANCE OF AN ADDITIONAL AMOUNT FOR ANY PERIOD PRIOR TO MARCH 3, 1954. SEE ARMSTRONG ET AL. (JOSEPH A. HERBERT) V. UNITED STATES, CT.CL. NO. 431 56, DECIDED JULY 19, 1961, B- 95090, SEPTEMBER 11, 1961, AND B-140734, NOVEMBER 29, 1961.

A SETTLEMENT WILL BE ISSUED IN THE NEAR FUTURE ADJUSTING RUDRIGUES' RETIRED PAY IN ACCORDANCE WITH THE SELIGA DECISION FOR THE PERIOD BEGINNING MARCH 3, 1954.