B-120234, SEP. 1, 1959

B-120234: Sep 1, 1959

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3. YOU STATE THAT YOU NEVER HAVE RECEIVED RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY PRESCRIBED BY LAW FOR A LIEUTENANT COMMANDER WITH OVER 12 YEARS' SERVICE. THE MONTHLY ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 12 YEARS' SERVICE WAS $427.50 AND 75 PERCENT THEREOF IS $320.62. SINCE YOU WERE PAID $247.50 PER MONTH COMMENCING MAY 1. YOU CONTEND THAT YOU ARE ENTITLED TO $73.12 PER MONTH FOR THE PERIOD MAY 1. UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE. WHILE IT IS SHOWN THAT YOU SERVED IN THE NAVY PRIOR TO NOVEMBER 12. NO RETIRED PAY RIGHTS ACCRUED TO YOU SOLELY BY VIRTUE OF THE QUOTED PROVISIONS OF LAW SINCE YOU WERE NOT A MEMBER OF THE REGULAR NAVY AT THE TIME OF YOUR RETIREMENT.

B-120234, SEP. 1, 1959

TO LIEUTENANT COMMANDER MARVIN C. PARK, USNR, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1959, REQUESTING REVIEW OF SETTLEMENT OF JULY 24, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AND SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820.

IN YOUR LETTER, YOU STATE THAT YOU NEVER HAVE RECEIVED RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY PRESCRIBED BY LAW FOR A LIEUTENANT COMMANDER WITH OVER 12 YEARS' SERVICE. YOU STATE FURTHER THAT ON MAY 1, 1948, THE EFFECTIVE DATE OF YOUR RETIREMENT, THE MONTHLY ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 12 YEARS' SERVICE WAS $427.50 AND 75 PERCENT THEREOF IS $320.62. SINCE YOU WERE PAID $247.50 PER MONTH COMMENCING MAY 1, 1948, YOU CONTEND THAT YOU ARE ENTITLED TO $73.12 PER MONTH FOR THE PERIOD MAY 1, 1948, TO JUNE 1, 1952 (MAY 1, 1952, EFFECTIVE DATE OF THE ACT OF MAY 19, 1952, 66 STAT. 79), AND CORRESPONDING AMOUNTS THEREAFTER AS REFLECTED BY THE INCREASED RETIRED PAY RATES PRESCRIBED BY THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, AND THE ACT OF MAY 20, 1958, 72 STAT. 122.

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, PROVIDES:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

WHILE IT IS SHOWN THAT YOU SERVED IN THE NAVY PRIOR TO NOVEMBER 12, 1918, NO RETIRED PAY RIGHTS ACCRUED TO YOU SOLELY BY VIRTUE OF THE QUOTED PROVISIONS OF LAW SINCE YOU WERE NOT A MEMBER OF THE REGULAR NAVY AT THE TIME OF YOUR RETIREMENT. BERRY V. UNITED STATES, 123 C.CLS. 53, AND REYNOLDS V. UNITED STATES, 125 C.CLS. 108. CONCERNING THE PROVISION IN SECTION 402 (I) OF THE 1949 ACT GRANTING TO RESERVISTS "HERETOFORE OR HEREAFTER" RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF DISABILITY THE SAME RETIRED PAY BENEFITS AS RETIRED MEMBERS OF THE REGULAR SERVICES, YOU ARE ADVISED THAT THE QUESTION OF WHETHER SUCH PROVISION HAS THE EFFECT OF CONFERRING ON RESERVE OFFICERS WHO, LIKE YOU, DID NOT ELECT TO QUALIFY FOR RETIRED PAY UNDER THE 1949 ACT, THE BENEFITS OF THE 1942 ACT, IS NOW PENDING BEFORE THE U.S. COURT OF CLAIMS. HOWEVER, IT WAS NOT NECESSARY FOR YOU TO QUALIFY FOR THE BENEFITS OF THE 1942 ACT IN ORDER TO HAVE YOUR RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF ACTIVE DUTY PAY AT THE TIME OF YOUR RETIREMENT. THE RECORD SHOWS THAT YOU ARE ENTITLED TO, AND YOUR RETIRED PAY HAS BEEN COMPUTED ON, THE 75 PERCENT MULTIPLE SINCE THE DATE OF YOUR RETIREMENT PURSUANT TO THE PROVISIONS OF LAW UNDER WHICH YOU WERE RETIRED. SEE 34 U.S.C. 417, 855C-1, 3509 (A) AND 350I.

YOU ARE MISTAKEN IN YOUR BELIEF THAT THE MONTHLY ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 12 YEARS' CUMULATIVE SERVICE WAS $427.50 ON MAY 1, 1948. PAY AT THAT RATE WAS FIRST PRESCRIBED FOR A LIEUTENANT COMMANDER WITH THAT LENGTH OF SERVICE BY SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND WAS EFFECTIVE FROM OCTOBER 1, 1949. YOU WERE RETIRED ON MAY 1, 1948, AND THE ACTIVE DUTY PAY OF A LIEUTENANT COMMANDER HAVING OVER 12 YEARS' SERVICE ON THAT DATE WAS $330 AS PRESCRIBED BY SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 29, 1946, 60 STAT. 345. YOU WERE PAID AT THE RATE OF 75 PERCENT OF $330, THAT IS, AT THE RATE OF $247.50, COMMENCING MAY 1, 1948. THE RECORD SHOWS THAT YOU WERE INFORMED AS TO THE AMOUNTS PAYABLE UNDER THE DIFFERENT ELECTIONS WHICH WERE OPEN TO YOU UNDER SECTION 411 OF THE 1949 ACT, AND THAT YOU ELECTED TO CONTINUE TO RECEIVE RETIRED PAY AT THE RATE OF $247.50 PER MONTH UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, SUCH ELECTION BEING THE MOST ADVANTAGEOUS TO YOU. COMMENCING MAY 1, 1952, YOUR RETIRED PAY WAS INCREASED BY 4 PERCENT TO $257.40 UNDER THE ACT OF MAY 19, 1952. ON APRIL 1, 1955, SUCH PAY WAS INCREASED AN ADDITIONAL 6 PERCENT TO $272.84 PURSUANT TO THE CAREER INCENTIVE ACT OF 1955, AND ON JUNE 1, 1958, THE FURTHER 6 PERCENT INCREASE AUTHORIZED UNDER THE ACT OF MAY 20, 1958, BROUGHT IT TO THE RATE OF $289.21 CURRENTLY BEING PAID TO YOU.

SINCE YOU HAVE BEEN PAID 75 PERCENT OF THE ACTIVE DUTY PAY OF AN OFFICER WITH YOUR RANK AND LENGTH OF SERVICE AT THE TIME OF YOUR RETIREMENT ON MAY 1, 1948, AND APPROPRIATE INCREASES AS PROVIDED BY LAW SINCE THAT TIME, IT APPEARS THAT YOU HAVE BEEN PAID THE FULL AMOUNT OF RETIRED PAY TO WHICH YOU ARE ENTITLED BY LAW.

ACCORDINGLY, THE DISALLOWANCE OF JULY 24, 1959, WAS CORRECT AND IS SUSTAINED.