B-123841, NOV. 3, 1955

B-123841: Nov 3, 1955

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF MARCH 10. YOUR CLAIM IS BASED ON OUR DECISION B- 102149. YOU WERE DETACHED FROM DUTY WITH THE ARMED SERVICES PETROLEUM BOARD. THAT YOU WERE NOT ENTITLED TO RETIREMENT WITH RETIRED PAY BY REASON OF PHYSICAL DISABILITY. YOU WERE AWARDED DISABILITY COMPENSATION BY THE VETERANS ADMINISTRATION. FOUND THAT YOU ARE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE ON ACTIVE DUTY. YOU WERE TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF CAPTAIN. YOU WERE ALLOWED $1. THAT ACTION WAS BASED ON THE CASE OF HAMRICK V. THAT ELECTION WAS FORWARDED HERE FOR CONSIDERATION AS A CLAIM FOR ANY ADDITIONAL AMOUNT WHICH MAY BE FOUND DUE YOU UNDER THAT DECISION.

B-123841, NOV. 3, 1955

TO CAPTAIN JOHN H. FORSHEW, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1955, REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 14, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL DISABILITY RETIRED PAY. YOUR CLAIM IS BASED ON OUR DECISION B- 102149, DATED AUGUST 13, 1951.

BY ORDERS OF THE SECRETARY OF THE NAVY DATED OCTOBER 12, 1948, YOU WERE DETACHED FROM DUTY WITH THE ARMED SERVICES PETROLEUM BOARD, WASHINGTON, D.C., AND DIRECTED TO REPORT TO THE NAVAL RETIRING BOARD FOR EXAMINATION FOR RETIREMENT. HOWEVER, ON APRIL 27, 1949, THE CHIEF OF NAVAL PERSONNEL ADVISED YOU THAT YOU WOULD BE RELEASED FROM ACTIVE DUTY AS OF APRIL 30, 1949. BY LETTER OF JUNE 21, 1949, THE SAME OFFICIAL ADVISED YOU THAT THE NAVAL RETIRING BOARD WHICH CONVENED IN YOUR CASE ON OCTOBER 21, 1948, FOUND THAT YOUR DEFECT DOES NOT CONSTITUTE A PHYSICAL DISABILITY OF SUCH CHARACTER AS TO DISQUALIFY YOU FOR DUTY ON THE ACTIVE LIST; THAT THE PRESIDENT OF THE UNITED STATES HAD APPROVED SUCH FINDINGS, AND THAT YOU WERE NOT ENTITLED TO RETIREMENT WITH RETIRED PAY BY REASON OF PHYSICAL DISABILITY. ON JULY 14, 1949, YOU WERE AWARDED DISABILITY COMPENSATION BY THE VETERANS ADMINISTRATION. SUBSEQUENT TO THAT AWARD OF COMPENSATION THE CHIEF OF NAVAL PERSONNEL ADVISED YOU (APPARENTLY ON MARCH 13, 1950) THAT THE NAVAL RETIRING REVIEW BOARD WHICH CONVENED IN YOUR CASE ON SEPTEMBER 7, 1949, FOUND THAT YOU ARE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE ON ACTIVE DUTY; THAT THE PRESIDENT OF THE UNITED STATES HAD APPROVED SUCH FINDING, AND THAT, ON NOVEMBER 1, 1949, YOU WERE TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF CAPTAIN.

ON JULY 10, 1950, THE DEPARTMENT OF THE NAVY OPENED YOUR RETIRED PAY ACCOUNT FOR PAYMENT OF RETIRED PAY AT THE RATE OF $371.25 PER MONTH (75 PERCENT OF YOUR LAST ACTIVE DUTY PAY AS CAPTAIN) FOR THE PERIOD NOVEMBER 1, 1949 TO JULY 31, 1950, LESS THE AMOUNTS RECEIVED BY YOU AS DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION FOR THE PERIOD NOVEMBER 1, 1949 TO JUNE 30, 1950. PURSUANT TO YOUR REQUEST OF MAY 23, 1951, YOU WERE ALLOWED $1,813.50, REPRESENTING ARREARS OF RETIRED PAY AT THE RATE OF $371.25 PER MONTH FOR THE PERIOD MAY 1 TO OCTOBER 31, 1949 ($2,227.50), LESS DISABILITY COMPENSATION RECEIVED DURING THAT PERIOD ($414). THAT ACTION WAS BASED ON THE CASE OF HAMRICK V. UNITED STATES, 120 C.CLS. 17. ON SEPTEMBER 9, 1954, YOU EXECUTED A FORM MAKING AN ELECTION TO RECEIVE RETIRED PAY OF $371.25 PER MONTH BASED ON LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, UNLESS ENTITLED TO A GREATER AMOUNT IN ACCORDANCE WITH OUR DECISION B-102149, DATED AUGUST 13, 1951 (31 COMP. GEN. 28). THAT ELECTION WAS FORWARDED HERE FOR CONSIDERATION AS A CLAIM FOR ANY ADDITIONAL AMOUNT WHICH MAY BE FOUND DUE YOU UNDER THAT DECISION. THE CLAIM WAS DENIED BY SETTLEMENT OF DECEMBER 14, 1954, IN WHICH YOU WERE ADVISED THAT SINCE YOU HAD BEEN ALLOWED DISABILITY RETIRED PAY FROM THE DATE FOLLOWING YOUR RELEASE FROM ACTIVE DUTY, APRIL 30, 1949, OR PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, NO ADDITIONAL RETIRED PAY WAS DUE. YOUR PRESENT LETTER REQUESTS REVIEW OF THAT ACTION ON THE BASIS THAT NOTWITHSTANDING YOUR RIGHTS UNDER THE HAMRICK CASE YOUR RETIREMENT REMAINED EFFECTIVE NOVEMBER 1, 1949, AND, THEREFORE, THAT YOU WERE RETIRED AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND ENTITLED TO THE RIGHTS RECOGNIZED FOR SUCH RETIRED PERSONNEL IN THE DECISION OF AUGUST 13, 1951, MENTIONED ABOVE.

THE DECISION TO WHICH YOU REFER CONCLUDED THAT AN OFFICER WHO RETIRED AFTER SEPTEMBER 30, 1949, COULD HAVE HIS DISABILITY RETIREMENT PAY COMPUTED ON THE BASIS OF THE BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 AND, IN ADDITION, RECEIVE THE BENEFIT OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THAT DECISION HELD, ALSO, THAT A MEMBER RETIRED PRIOR TO OCTOBER 1, 1949, COULD NOT RECEIVE THE BENEFIT OF THE HIGHER RATES OF PAY AUTHORIZED IN THE CAREER COMPENSATION ACT OF 1949, AND ALSO RECEIVE THE BENEFIT OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

THE HAMRICK CASE INVOLVED A RELEASE FROM ACTIVE DUTY WITHOUT PAY PURSUANT TO THE FINDINGS OF A NAVAL RETIRING BOARD AND A REVIEW OF THOSE FINDINGS BY A NAVAL RETIRING REVIEW BOARD WHICH RESULTED IN PLACING THE PLAINTIFF ON THE RETIRED LIST AS OF A CURRENT DATE. THE COURT HELD THAT, BECAUSE OF AN INCORRECT DETERMINATION BY THE RETIRING BOARD, THE PLAINTIFF WAS PLACED ON THE RETIRED LIST WITH PAY LATER THAN HE SHOULD HAVE BEEN RETIRED AND THAT FULL CORRECTION OF THE ERROR REQUIRED HIM TO BE PUT IN THE SAME POSITION HE WOULD BE IN IF THE ERRONEOUS DETERMINATION HAD NOT BEEN MADE. JUDGMENT WAS FOR RETIRED PAY FROM THE TIME ACTIVE DUTY PAY CEASED, LESS DISABILITY COMPENSATION PAID BY THE VETERANS ADMINISTRATION FOR THE SAME PERIOD. SINCE THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF RETIRED PAY FOR ANY PERIOD PRIOR TO RETIREMENT, THE EFFECT OF THAT DECISION WAS TO PLACE THE PLAINTIFF OFFICER IN A RETIRED STATUS THE DAY AFTER HIS ACTIVE DUTY PAY CEASED.

SINCE UNDER THE HAMRICK DECISION YOU BECAME ENTITLED TO RETIRED PAY BEGINNING MAY 1, 1949, IT MUST BE CONSIDERED THAT YOUR RETIREMENT BEGAN ON THAT DATE OR PRIOR TO THE EFFECTIVE DATE (OCTOBER 1, 1949) OF THE CAREER COMPENSATION ACT OF 1949. THEREFORE, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF THE ADDITIONAL RETIRED PAY CLAIMED. THE FACT THAT YOU CLAIMED THE BENEFITS OF THE HAMRICK DECISION PRIOR TO CONSIDERATION OF YOUR CLAIM UNDER THE DECISION OF AUGUST 13, 1951, DID NOT AFFECT YOUR ULTIMATE RIGHTS SINCE, OF COURSE, ANY AMOUNT RECEIVED ON THE BASIS OF THE DECISION OF AUGUST 13, WOULD HAVE BEEN FOR DEDUCTION WHEN YOUR ACCOUNT WAS ADJUSTED IN ACCORDANCE WITH THE HAMRICK DECISION.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 14, 1954, WAS CORRECT, AND IS SUSTAINED.