B-129880, FEBRUARY 6, 1957, 36 COMP. GEN. 579
Highlights
WAS NOT INTENDED TO PRECLUDE TRANSFER TO THE FLEET RESERVE OF A NAVAL ENLISTED MAN WHO HAD EXACTLY 16 YEARS' SERVICE IS A TENABLE ONE AND WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CLAIMS. 26 COMP. THE COURT OF CLAIMS STATED THAT THE LIBERTY CASE WAS WRONGLY DECIDED AND HELD THAT IN VIEW OF THE GENERAL PURPOSE AND EFFECT SOUGHT TO BE ATTAINED BY CONGRESS IN ENACTING SECTION 208. THE USE OF THE PHRASE "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WAS INADVERTENT AND THAT EXACTLY 16 YEARS' SERVICE. WE HAVE BEEN FURNISHED A COPY OF A LETTER TO THE DEPARTMENT OF THE NAVY FROM THE ASSISTANT ATTORNEY GENERAL. IN WHICH IT IS STATED THAT " NO FURTHER PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE JUDGMENT ENTERED IN THE ABOVE ENTITLED ( BRACHER) CASE ON OCTOBER 2.
B-129880, FEBRUARY 6, 1957, 36 COMP. GEN. 579
MILITARY PERSONNEL - PAY - RETIRED - FLEET RESERVE - ABAD ET AL. V. UNITED STATES THE INTERPRETATION BY THE COURT OF CLAIMS IN ABAD ET AL. V. UNITED STATES, DECIDED OCTOBER 2, 1956, THAT THE PHRASE "AFTER MORE THAN 16 YEARS OF SERVICE" IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854G, WAS NOT INTENDED TO PRECLUDE TRANSFER TO THE FLEET RESERVE OF A NAVAL ENLISTED MAN WHO HAD EXACTLY 16 YEARS' SERVICE IS A TENABLE ONE AND WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CLAIMS. 26 COMP. GEN. 804, MODIFIED.
TO THE SECRETARY OF THE NAVY, FEBRUARY 6, 1957:
IN OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 809, WE HELD THAT A NAVY ENLISTED MAN WHO HAD TRANSFERRED TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854B, WITH EXACTLY 16 YEARS' NAVAL SERVICE MAY NOT BE CONSIDERED AS HAVING TRANSFERRED THERETO ,AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE MEANING OF SECTION 208 OF THAT ACT AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. 854G, SO AS TO BE ENTITLED TO COUNT THEREUNDER ACTIVE DUTY PERFORMED AS A FLEET RESERVIST AFTER JULY 1, 1925, IN THE COMPUTATION OF RETAINER OR RETIRED PAY WHEN IN AN INACTIVE DUTY STATUS. THE COURT OF CLAIMS, IN THE CASE OF LIBERTY V. UNITED STATES, 120 C.1CLS 274, SIMILARLY HELD THAT SECTION 208 APPLIED ONLY TO MEMBERS OF THE FLEET RESERVE WHO HAD COMPLETED MORE THAN 16 YEARS OF ACTIVE SERVICE WHEN THEY TRANSFERRED TO THE RESERVE AND NOT TO THOSE WHO TRANSFERRED WITH EXACTLY 16 YEARS' SERVICE.
RECENTLY, IN THE CASE OF HERMOGENES ABAD ET AL. V. UNITED STATES (CASE OF MARY AGNES BRACHER, ADMINISTRATRIX OF THE ESTATE OF WALTER EVANS BRACHER, PLAINTIFF NO. 43), NO. 49667, DECIDED OCTOBER 2, 1956, THE COURT OF CLAIMS STATED THAT THE LIBERTY CASE WAS WRONGLY DECIDED AND HELD THAT IN VIEW OF THE GENERAL PURPOSE AND EFFECT SOUGHT TO BE ATTAINED BY CONGRESS IN ENACTING SECTION 208, CITED ABOVE, THE USE OF THE PHRASE "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WAS INADVERTENT AND THAT EXACTLY 16 YEARS' SERVICE, BEING SUFFICIENT FOR TRANSFER TO THE FLEET RESERVE, ALSO MET THE REQUIREMENTS OF SECTION 208.
WE HAVE BEEN FURNISHED A COPY OF A LETTER TO THE DEPARTMENT OF THE NAVY FROM THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DATED NOVEMBER 23, 1956, IN WHICH IT IS STATED THAT " NO FURTHER PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE JUDGMENT ENTERED IN THE ABOVE ENTITLED ( BRACHER) CASE ON OCTOBER 2, 1956, TO THE EFFECT THAT THE PLAINTIFF IS ENTITLED TO RECOVER.' IN VIEW OF SUCH STATEMENT AND SINCE THE CONCLUSION REACHED IN THE COURT'S OPINION IN THE BRACHER CASE IS NOT AN UNTENABLE ONE, WE WILL FOLLOW THE COURT'S DECISION OF OCTOBER 2, 1956, AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS, AND THE PORTION OF THE DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 809, RELATING TO THIS MATTER, WILL NO LONGER BE FOLLOWED.