B-130297, MAR. 25, 1957

B-130297, MAR. 25, 1957

TO MR. L. A. CAMPBELL, DISBURSING OFFICER, NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1956, WITH INDORSEMENTS, FORWARDED HERE JANUARY 4, 1957, BY THE DEPUTY JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION CONCERNING THE METHOD OF COMPUTING THE RETIRED PAY OF ERNEST B. PARKER, 475-09-31, CHIEF WATER TENDER, U.S. NAVY, RETIRED.

THE FACTS CONCERNING MR. PARKER'S RETIRED PAY STATUS APPEAR TO BE AS FOLLOWS:

(1) HE WAS TRANSFERRED TO THE FLEET RESERVE ON MARCH 12, 1947, AND RELEASED FROM ACTIVE DUTY ON MARCH 31, 1947, WITH CREDITABLE SERVICE FOR PURPOSES OF COMPUTING HIS RETAINER PAY TOTALING 22 YEARS, 2 MONTHS AND 5 DAYS,

(2) HE WAS RECALLED TO ACTIVE DUTY EFFECTIVE MARCH 19, 1951, AND WAS RELEASED TO INACTIVE DUTY ON MAY 31, 1954,

(3) HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY ON JUNE 1, 1954, (APPARENTLY IN THE RANK OF CHIEF MACHINIST), AND REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ON JANUARY 31, 1955, HAVING BEEN FOUND TO BE PHYSICALLY FIT,

(4) ON FEBRUARY 1, 1955, HE WAS PLACED ON THE RETIRED LIST OF THE REGULAR NAVY BY REASON OF THE COMPLETION OF 30 YEARS OF ACTIVE AND INACTIVE SERVICE AND CONTEMPORANEOUSLY ADVANCED ON THE RETIRED LIST TO THE RANK OF CHIEF WARRANT OFFICER, W-2,

(5) NO PAYMENTS OF RETIRED PAY WERE MADE TO HIM FOR THE PERIOD FROM JULY 6, 1954, TO FEBRUARY 3, 1955, INCLUSIVE, DUE TO HIS FEDERAL CIVILIAN EMPLOYMENT AT A SALARY IN EXCESS OF $3,000 PER ANNUM, AND

(6) HE WAS RESTORED TO HIS ENLISTED STATUS EFFECTIVE AS OF FEBRUARY 4, 1955, AND SINCE THAT TIME HE HAS BEEN IN RECEIPT OF RETIRED PAY BASED ON HIS ENLISTED RATING (CHIEF BOILERMAN) WITH OVER 22 YEARS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES AND 25 YEARS OF SERVICE CREDITABLE FOR PERCENTAGE MULTIPLE PURPOSES.

YOU REQUEST DECISION AS TO WHETHER MR. PARKER'S "INACTIVE SERVICE IN THE FLEET RESERVE OF 3 YEARS, 11 MONTHS, AND 18 DAYS FROM 1 APRIL 1947 THROUGH 18 MARCH 1951 MAY BE COUNTED UNDER 10 1401 IN DETERMINING HIS BASIC PAY WHILE ON THE TEMPORARY DISABILITY RETIRED LIST AND ALSO WHILE RECEIVING PAY UNDER 10 U.S.C. 1402 (A) AS A RETIRED ENLISTED MAN FROM 4 FEBRUARY 1955, THE DATE OF HIS RESTORATION TO ENLISTED STATUS.' THE CITED STATUTORY PROVISIONS DID NOT BECOME EFFECTIVE UNTIL THE APPROVAL ON AUGUST 10, 1956, OF PUBLIC LAW 1028, 84TH CONGRESS, AND BY VIRTUE OF THE SPECIFIC TERMS OF SECTION 49 (F), OF THAT ACT, 70A STAT. 640, SUCH PROVISIONS COULD NOT INCREASE OR DECREASE THE PAY OR ALLOWANCES INCLUDING RETIRED PAY AND RETAINER PAY, OF ANY PERSON. HENCE, THE DETERMINATION OF MR. PARKER'S RETIRED PAY RIGHTS WOULD NOT DEPEND ON THOSE PROVISIONS.

IT APPEARS, HOWEVER, THAT THE QUESTIONS PRESENTED BY YOU ARE WHETHER UNDER THE PROVISIONS OF LAW WHICH ARE APPLICABLE IN THIS CASE, THE PERIOD OF MR. PARKER'S INACTIVE SERVICE IN THE FLEET RESERVE, APRIL 1, 1947, TO MARCH 18, 1951, 3 YEARS, 11 MONTHS AND 18 DAYS, PROPERLY MAY BE INCLUDED IN THE COMPUTATION OF HIS RETIRED PAY DURING THE PERIOD JUNE 1, 1954, TO JANUARY 31, 1955, WHILE HE WAS ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY AND THEREAFTER FROM FEBRUARY 1, 1955, THE DATE THAT HE WAS PLACED ON THE RETIRED LIST OF THE REGULAR NAVY.

THE ESTABLISHMENT, EFFECTIVE OCTOBER 1, 1949, OF A TEMPORARY DISABILITY RETIRED LIST FOR EACH UNIFORMED SERVICE WAS AUTHORIZED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. SEE SECTION 401 (B), 63 STAT. 816. IS STATED THAT MR. PARKER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY EFFECTIVE JUNE 1, 1954, AND HIS NAME WAS REMOVED FROM THAT LIST AS OF JANUARY 31, 1955. THEREFORE, MR. PARKER'S RETIRED PAY STATUS DURING THE PERIOD FROM JUNE 1, 1954, TO JANUARY 31, 1955, INCLUSIVE, WAS GOVERNED BY THE PROVISIONS OF SECTION 402 (D) OF THAT ACT, 63 STAT. 818.

ERNEST E. PARKER IS ONE OF THE PLAINTIFFS (PLAINTIFF NO. 26) ON COURT OF CLAIMS PETITION NO. 212-56, JUAN S. AFLAGUE ET AL. V. UNITED STATES, FILED MAY 17, 1956, MAKING CLAIM UNDER SECTIONS 202 AND 402 OF THE CAREER COMPENSATION ACT OF 1949, AND OTHER PROVISIONS OF LAW, FOR ADDITIONAL RETIRED PAY BASED ON CREDIT FOR HIS YEARS OF ACTIVE DUTY, PLUS THE PERIOD OF HIS INACTIVE SERVICE IN THE FLEET RESERVE PRIOR TO THE DATE THAT HE WAS RECALLED TO ACTIVE DUTY, LESS THE AMOUNT OF RETIRED PAY RECEIVED BY HIM FROM MAY 1, 1950, TO THE DATE OF JUDGMENT. CONSEQUENTLY, JURISDICTION OF THIS ENTIRE MATTER HAS BEEN COMMITTED TO THE COURT OF CLAIMS. (SEE 28 U.S.C. 1491 AND 2501) AND HENCE, IT APPEARS THAT THERE ARE NOW PENDING BEFORE THE COURT THE IDENTICAL QUESTIONS WHICH YOU HAVE PRESENTED CONCERNING MR. PARKER'S RETIRED PAY STATUS WITH RESPECT TO THE PERIOD THAT HIS NAME WAS ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAVY, JUNE 1, 1954, TO JANUARY 31, 1955, INCLUSIVE, AND FROM FEBRUARY 1, 1955, TO DATE OF JUDGMENT AS A RETIRED ENLISTED MAN ON THE RETIRED LIST OF THE REGULAR NAVY. IT IS NOT THE PRACTICE OF THIS OFFICE TO RENDER AN ADVANCE DECISION ON ANY CLAIM WHICH IS PENDING IN THE COURT OF CLAIMS. SEE DECISION OF APRIL 19, 1954, 33 COMP. GEN. 479, 481.