B-124303, APR. 9, 1957

B-124303, APR. 9, 1957

TO KING AND KING, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 10, 1956, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF MR. FOXWORTH STOVALL FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE FOR THE PERIOD DECEMBER 1, 1945 TO SEPTEMBER 30, 1949, INCLUSIVE. BY OUR CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 9, 1956, MR. STOVALL'S CLAIM WAS CERTIFIED FOR PAYMENT IN THE AMOUNT OF $1,233.50, COMPUTED UPON CREDITABLE SERVICE FOR PAY PURPOSES OF 23 YEARS, RATHER THAN 24 YEARS AS CLAIMED.

IT APPEARS THAT MR. STOVALL WAS TRANSFERRED TO THE FLEET RESERVE ON AUGUST 4, 1938. THE AUTHORIZATION FOR HIS TRANSFER TO THE FLEET NAVAL RESERVE CONTAINS A TRANSCRIPT OF SERVICE AS FOLLOWS:

"TRANSCRIPT OF SERVICE

DEDUCTIONS SERVICE FOR SERVICE FOR ENLISTED DISCHARGED

REASON TRANSFER PAY

YR. MO. DA. YR. MO. DA. YR. MO. DA. 2/17/20 3/6/24 0 0 19 SKMC 4 0 20 4 0 0 3/12/24 3/11/30 0 2 12 SKMC 6 0 0 5 9 18 3/12/30 3/11/37 --------------- - 7 0 0 7 0 0 3/12/37 TO 7/14/38 0 -2- 2 SKMC 1 4 3 1 2 1

18 4 23 17 11 19

* ENLISTMENT EXTENDED FOR 2 YEARS.

** ENLISTMENT EXTENDED FOR 2 YEARS. *** ENLISTMENT EXTENDED FOR 3 YEARS. SKMC - 1/3/24 TO 1/22/24 - 19 DAYS.

4/21/29 TO 7/2/29 - 72 DAYS.

6/25/37 TO 7/3/37 - 8 DAYS.

12/1/37 TO 12/24/37 - 23 DAYS.

5/13/38 TO 6/13/38 - 31 DAYS.'

SINCE MR. STOVALL'S FINAL DISCHARGE WAS NOT ACCOMPLISHED UNTIL AUGUST 4, 1938, 20 ADDITIONAL DAYS ARE TO BE ADDED TO "SERVICE FOR TRANSFER" AND "SERVICE FOR PAY.' THIS AUTHORIZATION FOR TRANSFER WAS PREPARED IN THE BUREAU OF NAVIGATION, AND AS SUCH CONSTITUTES THE ACTION BY THE SECRETARY OF THE NAVY REQUIRED BY THE STATUTE. IN ADDITION TO THE SERVICE ABOVE SET FORTH, MR. STOVALL HAD ACTIVE SERVICE OF 5 YEARS, 5 MONTHS AND 19 DAYS DURING THE PERIOD JUNE 12, 1940, THROUGH NOVEMBER 30, 1945. UPON THE ABOVE RECORD, IT APPEARS THAT MR. STOVALL HAD ACCUMULATED, AS OF NOVEMBER 30, 1945, ACTIVE SERVICE FOR PAY PURPOSES, A TOTAL OF 23 YEARS, 5 MONTHS AND 28 DAYS.

IT IS NOW CONTENDED THAT THE ORIGINAL COMPUTATION WAS IN ERROR AND THAT, AT YOUR REQUEST, THE NAVY DEPARTMENT RECOMPUTED THE CLAIMANT'S SERVICE AND DETERMINED THAT HE HAD INADVERTENTLY BEEN OVERCHARGED WITH "BAD TIME" RESULTING FROM SICKNESS DUE TO HIS OWN MISCONDUCT. IN SUPPORT OF YOUR POSITION, YOU HAVE SUBMITTED A COPY OF A NAVY DEPARTMENT MESSAGE TO THE FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, U.S. NAVY, AT CLEVELAND, TOGETHER WITH A RECOMPUTATION OF SERVICE FOR PAY PURPOSES, STATED TO HAVE BEEN SENT TO YOU AT THE TIME THE "ERROR" WAS DISCOVERED. THE MESSAGE, IN PERTINENT PART, IS AS FOLLOWS:

"* * * PETITION 218-55 X COMPUTATION CERTIFICATE SHOWS SERVICE CREDITABLE FOR BASIC PAY PURPOSES AT TIME OF TRANSFER TOTALING 18-0-10 X APPARENTLY BASED ON DATA SHOWN ON NAVPERS 395 OF 7/12/38 X SUCH STATEMENT IS CORRECT EXCEPT WITH RESPECT OF SKMC FOR PERIOD 5/13 - 6/13/38 X MEMBER WAS ADMITTED TO HOSPITAL ON 5/13/38 AND WAS DISCHARGED ON 6/13/38 X BUPERS COMPUTED PERIOD AS 31 DAYS INSTEAD OF 30 X ON SUCH BASIS MEMBER HAD 18-0- 10 WHICH PLUS ACTIVE SERVICE AFTER TRANSFER FROM 6/12/40 TO 11/30/45 - 5-5 -19 TOTALS 23-6 X ADDITIONAL 1 DAY AFFECTS PAY FROM DATE OF RELEASE * *

THE STATEMENT OF SERVICE IS NOW STATED TO BE AS FOLLOWS:

"STOVALL, FOXWORTH (N), 276 66 00

PAY PURPOSES

ENL. USN - 17 FEBRUARY 1920

DISCH. - 6 MARCH 1924 4-0-1

SKMC 1/3/24 - 1/22/24 - 19 DAYS

ENL. USN - 12 MARCH 1924

DISCH. 11 MARCH 1930 5-9-18

SKMC 4/21/29 - 7/2/29 - 72 DAYS

ENL. USN - 12 MARCH 1930

DISCH. - 11 MARCH 1937 - 7-0-0

NO TIME LOST.

ENL. USN - 12 MARCH 1937

TRANSF. FR. - 4 AUGUST 1938 - 1-2-22

SKMC 12/1/37 - 12/23/37 (INC.) - 23 DAYS

SKMC 5/13/38 - 6/12/38 (INC.) - 30 DAYS

SKMC 6/25/37 - 7/2/37 (INC.) - 8 DAYS

61 18-0-11

RECALLED ACTIVE DUTY - 12 JUNE 1940

RELEASED FROM AD - 30 NOVEMBER 1945 5-5-19

TOTAL -------

23-6-0

TRANSFER PURPOSES

4-0-20

6-0-0

7-0-0

1-4-23

18-5-13"

THE DIFFERENCE BETWEEN THE TWO COMPUTATIONS OCCURS AS TO THE PERIODS FEBRUARY 17, 1920, TO MARCH 6, 1924 AND MAY 13, TO JUNE 13, 1938.

IT WILL BE OBSERVED THAT THE ORIGINAL DETERMINATION OF TIME FOR PAY PURPOSES FOR THE FIRST ENLISTMENT IS ONE DAY LESS THAN THE CURRENT STATEMENT OF SUCH SERVICE. OBVIOUSLY MR. STOVALL WAS REQUIRED TO MAKE GOOD TIME LOST ON A DAY FOR DAY BASIS. MR. STOVALL THUS COMPLETED HIS ENLISTMENT TO THE DAY AND WAS GIVEN CREDIT FOR EXACTLY 4 YEARS' SERVICE. AS TO THE LAST PERIOD OF ENLISTMENT IT APPEARS THAT MR. STOVALL ENTERED THE HOSPITAL ON MAY 13, 1938. AT THAT TIME, THE NAVY REGULATIONS PROVIDED THAT "FOR TIME ON THE SICK LIST DUE TO MISCONDUCT, THE DATE ADMITTED TO THE SICK LIST WILL BE COUNTED AS A DAY OF ABSENCE AND PAY FOR THAT DAY WILL BE CHECKED, WHILE THE DATE DISCHARGED FROM THE SICK LIST WILL NOT BE COUNTED AS A DAY OF ABSENCE AND CHECK AGE OF PAY FOR THAT DAY WILL NOT BE MADE.' CF. 14 COMP. GEN. 111. BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, ARTICLE 2140, PAR. 11, CHANGE 16, JULY 1, 1937. HENCE IT APPEARS THAT THE TWO STATEMENTS OF SERVICE ARE ALIKE IN EVERY RESPECT, INSOFAR AS THE DATES OF SERVICE ARE CONCERNED. THEY DIFFER ONLY IN THE INTERPRETATION OF CREDITABLE TIME, OR CONVERSELY, DEDUCTION FOR TIME LOST.

THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, PROVIDES THAT ALL TRANSFERS OF ENLISTED MEN OF THE NAVY TO THE FLEET NAVAL RESERVE OR TO THE FLEET RESERVE AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR OF THE FLEET RESERVE TO THE RETIRED LIST THERETOFORE OR THEREAFTER MADE BY THE SECRETARY OF THE NAVY ARE CONCLUSIVE FOR ALL PURPOSES, AND STATED THAT ALL MEN SO TRANSFERRED SHALL FROM DATE OF TRANSFER BE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH THEIR RANKS OR RATINGS AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY AT THE TIME OF TRANSFER. PROVISION IS MADE FOR THE SECRETARY OF THE NAVY, UPON DISCOVERY OF ANY ERROR OR OMISSION IN THE SERVICE, RANK OR RATING FOR TRANSFER OR RETIREMENT, TO CORRECT SUCH RECORD AND THE PERSON TRANSFERRED OR RETIRED, IS ENTITLED TO PAY AND ALLOWANCES, IN ACCORDANCE WITH HIS RANK OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE SECRETARY OF THE NAVY.

SUBSTANTIALLY THE SAME LANGUAGE, AS TO THE CONCLUSIVENESS OF THE DETERMINATIONS AT TIME OF TRANSFER, WAS INCLUDED IN THE ACT OF MAY 23, 1930, 46 STAT. 375, WHICH WAS REPEALED BY THE NAVAL RESERVE ACT OF 1938.

THE "CORRECTED" STATEMENT OF SERVICE SUBMITTED DOES NOT APPEAR TO BE THE ACTION OF THE SECRETARY OF THE NAVY NOR DOES IT APPEAR TO BE THE ACTION OF THE BUREAU OF NAVAL PERSONNEL, WHICH WE HAVE VIEWED AS ACTION BY THE SECRETARY OF THE NAVY.

IN VIEW OF THE FOREGOING IT IS OUR VIEW THAT THE STATEMENT OF SERVICE "FOR PAY PURPOSES" AS CONTAINED IN THE AUTHORIZATION FOR TRANSFER TO THE NAVAL FLEET RESERVE, IN THE ABSENCE OF A CORRECTION PURSUANT TO THE PROVISIONS OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, MUST BE CONSIDERED CONCLUSIVE. ACCORDINGLY, SINCE THE SERVICE STATED IN THE AUTHORIZATION FOR TRANSFER TOGETHER WITH SUBSEQUENT ACTIVE DUTY TOTAL LESS THAN 23 YEARS 6 MONTHS, THERE IS NO AUTHORITY FOR CREDITING MR. STOVALL WITH 24 YEARS' SERVICE FOR PAY PURPOSES, AS REQUESTED. THE SETTLEMENT OF NOVEMBER 9, 1956, UPON REVIEW, IS SUSTAINED.