B-128309, DEC. 1, 1965

B-128309: Dec 1, 1965

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTERS OF MAY 11. A JUDGMENT BASED ON A STIPULATION AGREEMENT WAS ENTERED APRIL 7. TO DATE OF JUDGMENT WAS DISMISSED ON ITS MERITS JULY 12. 1960 (DATE OF WOOD'S DEATH) IS NOW OPEN FOR CONSIDERATION OF THE CLAIM FOR ADDITIONAL RETIRED PAY BENEFITS UNDER THE CALLAHAN RULE. SHOWS THAT WOOD'S TRANSFER TO THE FLEET NAVAL RESERVE WAS ACCOMPLISHED ON SEPTEMBER 14. ON THAT BASIS HIS CALLAHAN RATE OF RETIRED PAY IS LESS THAN THE AMOUNT OF RETIRED PAY PAID TO HIM BY THE DEPARTMENT OF THE NAVY UNDER METHOD (B). WAS A "DURATION OF WAR" ENLISTMENT WHICH WOOD. THAT STATEMENT OF SERVICE CREDITABLE FOR TRANSFER IS INCONSISTENT WITH THE AMOUNT OF SERVICE CREDITED TO WOOD ON N.NAV. 395 AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE ON SEPTEMBER 14.

B-128309, DEC. 1, 1965

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 11, 1965, AND MAY 26, 1965, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED OCTOBER 21, 1964, DISALLOWING THE CLAIM OF ALYCE W. GRANTHAM, FOR INCREASED RETIRED PAY IN THE CASE OF TERRELLR. WOOD, USN, RETIRED, DECEASED, BY REASON OF ADDITIONAL CONSTRUCTIVE SERVICE BELIEVED CREDITABLE UNDER THE HOLDING IN CALLAHAN V. UNITED STATES, CT.CL. NO. 349-62, DECIDED FEBRUARY 14, 1964.

IN AGUINALDO, ET AL. V. UNITED STATES, CT.CL. NO. 49726, A JUDGMENT BASED ON A STIPULATION AGREEMENT WAS ENTERED APRIL 7, 1953, IN FAVOR OF WOOD (PLAINTIFF NO. 127 IN THAT CASE) ALLOWING HIM INCREASED RETIRED PAY UNDER THE BASIC RULE OF THE SANDERS CASE, 120 CT.CL. 501 (1951), PLUS 5 PERCENTUM ON GOOD CONDUCT MARK (BY COMPROMISE) FOR THE PERIOD MAY 20, 1945, TO JUNE 30, 1952, INCLUSIVE. WOOD'S CLAIM AS PLAINTIFF NO. 145 IN ARMSTRONG, ET AL. V. UNITED STATES, CT.CL. NO. 249-56, FOR 10 PERCENTUM INCREASE IN RETIRED PAY BY REASON OF GOOD CONDUCT MARK FOR THE PERIOD JULY 1, 1952, TO DATE OF JUDGMENT WAS DISMISSED ON ITS MERITS JULY 12, 1957, 139 CT.CL. 748, THEREBY RAISING THE BAR OF RES JUDICATA AS TO THE PERIOD COVERED BY THAT JUDGMENT. CONSEQUENTLY, ONLY THE PERIOD JULY 13, 1957, TO MAY 12, 1960 (DATE OF WOOD'S DEATH) IS NOW OPEN FOR CONSIDERATION OF THE CLAIM FOR ADDITIONAL RETIRED PAY BENEFITS UNDER THE CALLAHAN RULE.

A COPY OF N.NAV. 395, TRANSFER TO FLEET NAVAL RESERVE, RECEIVED WITH LETTER OF AUGUST 19, 1965, FROM THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, SHOWS THAT WOOD'S TRANSFER TO THE FLEET NAVAL RESERVE WAS ACCOMPLISHED ON SEPTEMBER 14, 1923, ON THE BASIS OF 17 YEARS, 6 MONTHS AND 21 DAYS OF SERVICE (INCLUDING CONSTRUCTIVE SERVICE) CREDITABLE FOR TRANSFER AS FOLLOWS:

TABLE

SERVICE CREDITED

ENLISTED DISCHARGED FOR TRANSFER

6/11/06 6/10/10 4-0-0

6/11/10 4/4/14 4-0-0

4/13/14 2/18/18 4-0-0

2/19/18 9/9/21 3-6-21

9/15/21 9/14/23 2-0-0

17-6-21

WOOD SERVED ON ACTIVE DUTY FROM JUNE 20, 1942, TO MAY 19, 1945, INCLUSIVE, A PERIOD OF 2 YEARS AND 11 MONTHS WHICH, WHEN ADDED TO THE 17 YEARS, 6 MONTHS AND 21 DAYS' SERVICE CREDITED TO HIM FOR TRANSFER PURPOSES, TOTALS 20 YEARS, 5 MONTHS AND 21 DAYS. ON THAT BASIS HIS CALLAHAN RATE OF RETIRED PAY IS LESS THAN THE AMOUNT OF RETIRED PAY PAID TO HIM BY THE DEPARTMENT OF THE NAVY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829, DURING THE PERIOD JULY 13, 1957, TO MAY 12, 1960, INCLUSIVE. SEE SETTLEMENT OF OCTOBER 21, 1964.

A STATEMENT OF WOOD'S NAVAL SERVICE SET FORTH IN BUREAU OF NAVAL PERSONNEL LETTER OF JUNE 19, 1964, ADDRESSED TO THE CLAIMS DIVISION OF THIS OFFICE DISCLOSES THAT HIS ENLISTMENT OF FEBRUARY 19, 1918, WAS A "DURATION OF WAR" ENLISTMENT WHICH WOOD, ON DECEMBER 3, 1919, EXTENDED FOR TWO YEARS. AS INDICATED IN YOUR LETTER OF MAY 11, 1965, THE DEPARTMENT OF THE NAVY, IN A LETTER DATED SEPTEMBER 30, 1952, ADDRESSED TO THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, SUBMITTING A COMPUTATION OF THE AMOUNT DUE WOOD AS PLAINTIFF NO. 127 IN AGUINALDO, ET AL. V. UNITED STATES, CT.CL. NO. 49726 (STIPULATION JUDGMENT ENTERED APRIL 7, 1953), REPORTED THAT WOOD HAD 17 YEARS, 9 MONTHS AND 14 DAYS' SERVICE, INCLUDING CONSTRUCTIVE SERVICE, FOR TRANSFER TO THE FLEET NAVAL RESERVE. HOWEVER, THAT STATEMENT OF SERVICE CREDITABLE FOR TRANSFER IS INCONSISTENT WITH THE AMOUNT OF SERVICE CREDITED TO WOOD ON N.NAV. 395 AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE ON SEPTEMBER 14, 1923.

SECTION 2, ACT OF MAY 23, 1930, CH. 311, 46 STAT. 375, PROVIDED:

"ALL TRANSFERS OF ENLISTED MEN OF THE NAVY OR MARINE CORPS TO THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE CREATED BY THE ACTS OF AUGUST 29, 1916, AND FEBRUARY 28, 1925, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE TO THE RETIRED LIST HERETOFORE OR HEREAFTER MADE BY THE NAVY DEPARTMENT SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEN SO TRANSFERRED SHALL FROM DATE OF TRANSFER BE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH THEIR RANKS OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE NAVY DEPARTMENT AT TIME OF TRANSFER.'

THE AMOUNT OF SERVICE THAT WAS CREDITED TO WOOD, 17 YEARS, 6 MONTHS AND 21 DAYS, UPON HIS TRANSFER TO THE FLEET NAVAL RESERVE, IS CONCLUSIVE FOR ALL PURPOSES. IN THAT CONNECTION THE BUREAU OF NAVAL PERSONNEL, IN LETTER OF AUGUST 19, 1965, ABOVE REFERRED TO, HAS ADVISED THIS OFFICE THAT "NO OFFICIAL CHANGE HAS BEEN MADE IN THE TOTAL SERVICE CREDITABLE FOR TRANSFER SUBSEQUENT TO THE DATES OF THE AUTHORIZATIONS.' IN THE ABSENCE OF SUCH A CHANGE (SEE 10 U.S.C. 6332) THIS OFFICE MAY RECOGNIZE ONLY THAT SERVICE WHICH WAS CREDITED TO WOOD ON N.NAV. 395 AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE.

ACCORDINGLY, SINCE THE SERVICE SET FORTH IN WOOD'S AUTHORIZATION FOR TRANSFER, TOGETHER WITH THE SUBSEQUENT PERIOD OF ACTIVE DUTY PERFORMED BY HIM, TOTALS LESS THAN 20 YEARS AND 6 MONTHS, THERE IS NO AUTHORITY TO COMPUTE WOOD'S RETIRED PAY UNDER THE CALLAHAN RULE ON THE BASIS OF 21 YEARS OF SERVICE. THE DISALLOWANCE OF THE CLAIM IN THE SETTLEMENT OF OCTOBER 21, 1964, IS SUSTAINED.