B-121940, JUL. 31, 1956

B-121940, JUL. 31, 1956

TO MR. DAVID JAWITZ:

REFERENCE IS MADE TO LETTER DATED JUNE 18, 1956, FROM YOUR ATTORNEY, MR. FRED W. SHIELDS, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 13, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY INCIDENT TO YOUR SERVICE IN THE ARMED FORCES OF THE UNITED STATES.

THIS IDENTICAL CLAIM IS THE SUBJECT OF THE CASE OF JAWITZ V. UNITED STATES, C.CLS. NO. 409-54, PENDING IN THE COURT OF CLAIMS. YOU HAVE, HOWEVER, FURNISHED TO THE ATTORNEY GENERAL OF THE UNITED STATES A MOTION TO DISMISS THE ACTION IN THE COURT OF CLAIMS, TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF YOUR CLAIM BY OUR OFFICE. THE CASE OF HULSE V. UNITED STATES, C.CLS. NO. 408-52, DECIDED JANUARY 31, 1956, IS CITED AS A BASIS FOR FAVORABLE ACTION BY US ON YOUR CLAIM.

IT APPEARS THAT YOU SERVED AS AN ENLISTED MAN IN THE ARMY FROM AUGUST 25, 1912, TO MARCH 20, 1920, AND THAT YOU FIRST ENLISTED IN THE NAVY ON JUNE 21, 1920. AFTER HAVING SERVED THROUGH SUCCESSIVE ENLISTMENTS YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON AUGUST 1, 1936. ON NOVEMBER 1, 1939, YOU WERE PLACED ON THE RETIRED LIST OF THE NAVY FOR PHYSICAL DISABILITY AND, THEREAFTER, YOU SERVED ON ACTIVE DUTY FROM JULY 8, 1941, TO NOVEMBER 2, 1944. YOUR ACTIVE NAVAL SERVICE, BOTH BEFORE AND AFTER YOUR TRANSFER TO THE FLEET NAVAL RESERVE AMOUNTS TO LESS THAN 19 YEARS AND 6 MONTHS.

HAVING FIRST ENLISTED IN THE REGULAR NAVY PRIOR TO FEBRUARY 28, 1925, YOUR RIGHT TO TRANSFER TO FLEET NAVAL RESERVE WITH MORE THAN 16 AND LESS THAN 20 YEARS OF ACTIVE NAVAL SERVICE UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 590, WAS SAVED TO YOU BY SECTION 26 OF THE NAVAL RESERVE ACT OF 1925, 43 STAT. 1087. UNDER SECTION 1 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, YOU WERE ENTITLED TO CONTINUE TO RECEIVE THE SAME PAY, ETC., THAT YOU WERE ENTITLED TO RECEIVE AT THE TIME OF THE APPROVAL OF THE 1938 ACT.

IT WAS HELD IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT BY VIRTUE OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, MEMBERS TRANSFERRED TO THE FLEET RESERVE AFTER 16 YEARS' SERVICE, WHO WERE RECALLED TO ACTIVE DUTY DURING WORLD WAR II AND WHOSE PERIOD OF SUCH ACTIVE DUTY WHEN ADDED TO THEIR PRIOR ACTIVE NAVAL SERVICE TOTALED MORE THAN 20 YEARS OF ACTIVE NAVAL SERVICE, WERE ENTITLED, UPON RETURN TO AN INACTIVE STATUS, TO THE PAY PROVIDED BY SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 FOR MEMBERS WHO ENLISTED IN THE NAVY ON, OR PRIOR TO JULY 1, 1925, AND WERE TRANSFERRED TO THE FLEET RESERVE AFTER 20 OR MORE YEARS OF NAVAL SERVICE. SINCE, HOWEVER, YOUR TOTAL ACTIVE NAVAL SERVICE IS LESS THAN 19 1/2 YEARS, YOU DO NOT QUALIFY FOR PAY AS A 20-YEAR MAN UNDER SECTION 208.

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993; PROVIDES THAT MEMBERS WHO FIRST ENLISTED IN THE NAVY AFTER JULY 1, 1925, OR WHO REENLISTED SUBSEQUENT TO THAT DATE AFTER BEING OUT OF THE NAVY FOR MORE THAN 3 MONTHS AND WERE TRANSFERRED TO THE FLEET RESERVE AFTER AT LEAST 20 YEARS OF ACTIVE FEDERAL SERVICE, ARE ENTITLED TO RETAINER AND RETIRED PAY AT THE ANNUAL RATE OF 2 1/2 PERCENT OF THEIR BASE AND LONGEVITY PAY MULTIPLIED BY THE NUMBER OF YEARS OF THEIR ACTIVE FEDERAL SERVICE. ALSO, SECTION 204 PROVIDES THAT NOTHING CONTAINED IN THE SECTION SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 FROM BEING TRANSFERRED UNDER SECTION 204 IF THEY SO ELECT. SECTION 204 APPLIES TO ALL PERSONS OF THE CLASS DESCRIBED IN THE SECTION TRANSFERRED BEFORE OR AFTER AUGUST 10, 1946, TO THE FLEET RESERVE.

WHILE SECTION 204 CONTAINS A PROVISION TO THE EFFECT THAT NOTHING CONTAINED THEREIN SHALL BE CONSTRUED TO PREVENT PERSONS WHO QUALIFY FOR TRANSFER TO THE FLEET RESERVE UNDER THE PROVISIONS OF SECTION 203FROM BEING TRANSFERRED IN ACCORDANCE WITH SECTION 204, IF THEY SO ELECT, NOTHING IS FOUND IN THE ACT OF AUGUST 10, 1946, TO INDICATE THAT THE CONGRESS INTENDED TO GIVE TO 16-YEAR MEN, WHO CANNOT NOW QUALIFY UNDER THE ADDED SECTION 208 AS 20-YEAR MAN, THE BENEFITS PROVIDED BY SECTION 204.

IN THE SANDERS CASE THE COURT EMPHASIZED THE FACT THAT THE RIGHT UNDER SECTION 208 OF THE 1946 ACT TO COMBINE SERVICE FOR THE PURPOSE OF SECTION 203 BENEFITS WAS THE SAME AS THOUGH THE MAN'S ACTIVE DUTY STATUS HAD BEEN CONTINUOUS. CONSEQUENTLY, IT IS OUR VIEW THAT IN ITS MOST LIBERAL INTERPRETATION THE ELECTIVE PROVISO REASONABLY MUST BE REGARDED AS HAVING REFERENCE ONLY TO PERSONS WHO MAY QUALIFY FOR THE PAY PROVIDED FOR A 20- YEAR MAN BY SECTION 203.

THE HULSE CASE, DECIDED SUBSEQUENT TO THE DATE OF YOUR PENDING PETITION IN THE COURT OF CLAIMS, DOES NOT REQUIRE A DIFFERENT VIEW. THE PLAINTIFF IN THAT CASE HAD COMPLETED OVER 30 YEARS' ACTIVE NAVAL SERVICE. QUALIFIED AS A 20-YEAR MAN UNDER SECTION 208 AND, IN APPLYING THE ELECTIVE PROVISO, THE COURT SAID:

"CONGRESS PUT SECTION 204 ON AN ELECTIVE BASIS FOR THE SECTION 203 MEN BECAUSE, UNDER CERTAIN CIRCUMSTANCES, A MAN WITH 20 YEARS OR MORE OF SERVICE WOULD GET MORE ON THE SECTION 203 BASIS OF ONE-HALF OF THE BASE PAY PLUS PERMANENT ADDITIONS, PLUS 10 PERCENT FOR GOOD CONDUCT, THAN HE WOULD GET ON THE SECTION 204 BASIS OF 2 1/2 PERCENT OF BASE AND LONGEVITY PAY MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE. SEE 92 CONG. REC. 10354, WHERE A PROPOSAL TO MAKE SECTION 204 MANDATORY FOR MEN WITH 20 YEARS OF SERVICE WAS STRICKEN OUT OF THE BILL, THE SENATOR IN CHARGE OF THE BILL SAYING, AS TO THE OFFERED AMENDMENTS, "THEY MERELY SEEK TO PRESERVE EXISTING RIGHTS.'"

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.