B-130516, JAN. 31, 1958

B-130516: Jan 31, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4. THE CLAIM WAS MADE PURSUANT TO THE NAVAL RESERVE ACT OF JUNE 25. THE ABOVE-NAMED CLAIMANT HAS INSTRUCTED THIS OFFICE TO DISMISS HIS CLAIM WHICH IS PENDING IN THE UNITED STATES COURT OF CLAIMS AND TO OBTAIN SETTLEMENT OF HIS ENTIRE CLAIM IN THE GENERAL ACCOUNTING OFFICE. THUS WE HAVE TODAY SUBMITTED A MOTION TO DISMISS TO THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING THE SATISFACTORY SETTLEMENT OF THE ENTIRE CLAIM BY YOUR OFFICE. THE CLAIM WAS APPROVED NOVEMBER 15. IT BEING STATED THAT NO ADJUSTMENT WAS DUE FROM OCTOBER 1. WAS GREATER THAN THAT WHICH HE WOULD HAVE RECEIVED ON THE ONE-HALF BASE PAY FORMULA. THIS LETTER WAS TREATED AS A NEW CLAIM.

B-130516, JAN. 31, 1958

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1957, RELATIVE TO THE CLAIM OF MR. JAMES A. ABBY FOR ADDITIONAL RETIRED PAY AS A RETIRED FLEET RESERVIST, FOR THE PERIOD AUGUST 10, 1946, THROUGH SEPTEMBER 30, 1949.

ORIGINALLY, BY LETTER DATED NOVEMBER 1, 1954, YOU PRESENTED A CLAIM HERE IN BEHALF OF MR. JAMES ALBERT ABBY FOR THE DIFFERENCE BETWEEN RETAINER OR RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF OF HIS BASE PAY, PLUS PERMANENT ADDITIONS THERETO, PLUS TEN PERCENT ALLOWANCE FOR GOOD CONDUCT, AND RETAINER OR RETIRED PAY ACTUALLY RECEIVED BY MR. ABBY COMPUTED ON THE BASIS OF ONE-THIRD OF HIS BASE PAY PLUS PERMANENT ADDITIONS THERETO FOR THE PERIOD JANUARY 22, 1946, THROUGH OCTOBER 13,1948. THE CLAIM WAS MADE PURSUANT TO THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1175, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AND PURSUANT TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501.

ON OCTOBER 31, 1956, YOU ADDRESSED A LETTER TO OUR CLAIMS DIVISION STATING THAT,

"DUE TO THE COURT'S (COURT OF CLAIMS) ADVERSE DECISION IN THE HULSE CASE, (HULSE V. UNITED STATES, 133 C.CLS. 848), REGARDING THE PAYMENT OF THE GOOD CONDUCT INCREASE, THE ABOVE-NAMED CLAIMANT HAS INSTRUCTED THIS OFFICE TO DISMISS HIS CLAIM WHICH IS PENDING IN THE UNITED STATES COURT OF CLAIMS AND TO OBTAIN SETTLEMENT OF HIS ENTIRE CLAIM IN THE GENERAL ACCOUNTING OFFICE. THUS WE HAVE TODAY SUBMITTED A MOTION TO DISMISS TO THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING THE SATISFACTORY SETTLEMENT OF THE ENTIRE CLAIM BY YOUR OFFICE. ACCORDINGLY, WE HEREWITH SUBMIT AN AMENDED CLAIM FOR THE ENTIRE PERIOD FROM JANUARY 22, 1946 THROUGH THE DATE OF TLEMENT.'

THE CLAIM WAS APPROVED NOVEMBER 15, 1956 (D.O. VOUCHER NO. 10878, DATED DECEMBER 3, 1956), FOR ADDITIONAL PAY ON THE BASIS CLAIMED, FOR THE PERIOD JANUARY 22, 1946, TO SEPTEMBER 30, 1949, IT BEING STATED THAT NO ADJUSTMENT WAS DUE FROM OCTOBER 1, 1949, SINCE THE RETIRED PAY ALREADY RECEIVED BY THE CLAIMANT BEGINNING OCTOBER 1, 1949, WAS GREATER THAN THAT WHICH HE WOULD HAVE RECEIVED ON THE ONE-HALF BASE PAY FORMULA.

ON DECEMBER 14, 1956, YOU ADVISED US THAT YOU WISHED RECONSIDERATION OF THE SETTLEMENT MADE AND THAT THE CLAIMANT BE GIVEN THE DIFFERENCE BETWEEN THE PAY AWARDED HIM BY THE SETTLEMENT AND PAY COMPUTED AT THE RATE OF TWO AND ONE-HALF PERCENT TIMES THE NUMBER OF YEARS OF ACTIVE SERVICE TIMES BASE AND LONGEVITY PAY (SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SUPRA), AS AUTHORIZED IN THE HULSE CASE, FOR THE PERIOD COVERED BY THE SETTLEMENT. YOU ALSO STATED THAT THE HULSE CASE HAD NOT BEEN DECIDED AT THE TIME OF THE PRESENTATION OF THE ORIGINAL CLAIM. THIS LETTER WAS TREATED AS A NEW CLAIM, AND WAS DISALLOWED ON MAY 15, 1957, ON THE BASIS THAT AN ELECTION HAD BEEN MADE TO RECEIVE RETIRED PAY UNDER THE DOCTRINE OF THE SANDERS CASE, SUPRA.

YOU NOW REQUEST RECONSIDERATION OF THE DISALLOWANCE, STATING THAT ALTHOUGH THE REJECTION OF MR. ABBY'S CLAIM WAS BASED UPON THE GROUND THAT THE CLAIMANT HAD PREVIOUSLY MADE HIS ELECTION TO HAVE HIS PAY COMPUTED IN ACCORDANCE WITH SECTIONS 203 AND 208 OF THE NAVAL RESERVE ACT, AS AMENDED, RATHER THAN UNDER SECTION 204, WHICH ELECTION WE CONSIDERED FINAL, WE HAVE SINCE RECOGNIZED SIMILAR CLAIMS. IN THIS CONNECTION YOU CITE THE CASE OF WILLIAM ALPHA WOODS, SETTLED IN OUR CLAIMS DIVISION.

SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AMENDING SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, PERMITS AN ELECTION, UPON TRANSFER TO THE FLEET RESERVE, BETWEEN BENEFITS UNDER SECTION 203 OF THE 1938 ACT OR UNDER THE AMENDED SECTION 204 OF THAT ACT. THE COURT OF CLAIMS, IN THE HULSE CASE, HELD THAT A LIKE ELECTION COULD BE EXERCISED BY PERSONS WHO HAD BEEN TRANSFERRED TO THE FLEET RESERVE PRIOR TO AUGUST 10, 1946. THERE IS NOT APPARENT ANY LEGISLATIVE INTENT TO PLACE MEN TRANSFERRED TO THE FLEET RESERVE BEFORE AUGUST 10, 1946, IN A MORE FAVORABLE POSITION WITH RESPECT TO MAKING AN ELECTION BETWEEN THE BENEFITS PROVIDED BY SECTION 203 AND THESE PROVIDED BY SECTION 204 THAN MEN INITIALLY TRANSFERRED TO THE FLEET RESERVE AFTER THE EFFECTIVE DATE OF THE ACT. HENCE, IT REASONABLY MAY BE CONCLUDED THAT THE STATUTE CONTEMPLATES BUT ONE ELECTION FOR SUCH MAN. IT FOLLOWS THAT WHEN AN ELECTION DEFINITELY HAS BEEN MADE, WITH KNOWLEDGE OF THE ALTERNATIVES AVAILABLE, AN INDIVIDUAL'S RIGHTS ARE FIXED THEREBY.

IT APPEARS THAT YOUR FIRM REPRESENTED MR. HULSE IN HIS ACTION BEFORE THE COURT OF CLAIMS AND HENCE IT MUST BE CONCLUDED THAT YOU WERE WELL AWARE OF THE DECISION OF JANUARY 21, 1956, IN THAT CASE, AT THE TIME OF THE AMENDMENT TO MR. ABBY'S CLAIM BEFORE OUR OFFICE ON OCTOBER 31, 1956, SOME TEN MONTHS LATER. AS A MATTER OF FACT, THE HULSE CASE WAS MENTIONED IN YOUR LETTER OF OCTOBER 31, 1956. NO REQUEST WAS MADE AT THAT TIME THAT SETTLEMENT BE MADE ON THE BASIS OF "SECTION 204.' IN ADDITION, THE CHECK DRAWN ON THE SETTLEMENT BASED ON THE SANDERS CASE (SECTION 203) AND ISSUED BEFORE THE DATE OF YOUR LETTER OF DECEMBER 14, 1956, ASSERTING A CLAIM ON THE BASIS OF THE HULSE CASE (SECTION 204), WAS ACCEPTED AND NEGOTIATED WITHOUT PROTEST. SUCH ACCEPTANCE AND NEGOTIATION REASONABLY MAY BE CONSIDERED AS THE FINAL STEP IN PERFECTING AND COMPLETING MR. ABBY'S ELECTION TO HAVE HIS RETIRED PAY COMPUTED UNDER SECTION 203 OF THE 1938 ACT.

IN THE CASE OF WILLIAM ALPHA WOODS IT APPEARS THAT ALTHOUGH SETTLEMENT HAD BEEN STATED IN FAVOR OF MR. WOODS, PRIOR TO RECEIPT OF SUCH NOTICE OF SETTLEMENT BY THE CLAIMANT, WE WERE ADVISED IN HIS BEHALF THAT HE WISHED TO AMEND HIS CLAIM ON THE BASIS OF THE DECISION IN THE HULSE CASE, AND THE CHECK ISSUED ON THE BASIS OF THE SANDERS DECISION APPARENTLY WAS NOT RECEIVED UNTIL AFTER THE ORIGINAL CLAIM HAD BEEN MODIFIED. IN ANY EVENT, IT WAS NOT NEGOTIATED PRIOR TO ASSURANCE FROM US THAT SUCH NEGOTIATION WOULD NOT PREJUDICE CONSIDERATION OF THE MODIFIED CLAIM.

ACCORDINGLY, THE SETTLEMENTS ISSUED TO MR. ABBY ARE CORRECT, AND UPON REVIEW ARE SUSTAINED.