B-133487, NOV. 5, 1957

B-133487: Nov 5, 1957

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ATTORNEY AT LAW: THERE IS PRESENTED IN YOUR LETTER OF JULY 22. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12. OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THIS HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12. WAS ALLOWED TO INCLUDE. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511. IS LESS THAN THE AMOUNT OF RETIRED PAY HE IS ENTITLED TO RECEIVE AND WHICH HE HAS BEEN RECEIVING EFFECTIVE FROM OCTOBER 1.

B-133487, NOV. 5, 1957

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR LIEUTENANT COLONEL CARROLL M. GALE, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 24, 1954, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASE OF WILLIS A. HEDDEN V. UNITED STATES, C.CLS. NO. 156-55.

OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THIS HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU, B-119312, OCTOBER 14, 1957, ON THE CLAIM OF MAJOR PRICE W. BEEBE, U.S. ARMY, RETIRED. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12, 1957, THE PLAINTIFF, HEDDEN, WAS ALLOWED TO INCLUDE, FOR THE PURPOSE OF DETERMINING THE "ACTIVE SERVICE" FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE 1949 LAW, ONLY THAT PORTION OF HIS NATIONAL GUARD SERVICE PRIOR TO JUNE 3, 1916, WHICH REPRESENTED THE THREE TEN-DAY PERIODS OF ACTIVE DUTY TRAINING THAT HE PERFORMED UNDER AUTHORITY OF THE DICK ACT OF 1903. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511.

IN THE INSTANT CASE THE DEPARTMENT OF THE ARMY HAS REPORTED TO THIS OFFICE THAT LIEUTENANT COLONEL GALE'S RETIRED PAY HAS BEEN COMPUTED FROM DATE OF HIS RETIREMENT ON THE BASIS OF 25 YEARS, 11 MONTHS, AND 21 DAYS OF ACTUAL ACTIVE SERVICE AND 9 YEARS, 8 MONTHS, AND 8 DAYS OF INACTIVE SERVICE. THUS, LIEUTENANT COLONEL GALE HAS OVER 30 CUMULATIVE YEARS OF SERVICE CREDITABLE TO HIM IN DETERMINING THE RATE OF HIS MONTHLY BASIC PAY FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, LIEUTENANT COLONEL GALE WOULD BE ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 26 (REPRESENTING HIS ACTIVE SERVICE FACTOR).

IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT LIEUTENANT COLONEL GALE HAS HAD ANY PERIOD OF ACTUAL ACTIVE SERVICE IN THE NATIONAL GUARD, EITHER PRIOR OR SUBSEQUENT TO THE NATIONAL DEFENSE ACT OF 1916, WHICH, IF ADDED TO 25 YEARS, 11 MONTHS, AND 21 DAYS, THE AMOUNT OF ACTIVE SERVICE NOW BEING CREDITABLE TO HIM, WOULD ENTITLE HIM TO USE AN ACTIVE SERVICE FACTOR GREATER THAN 26 WHEN COMPUTING HIS RETIRED PAY UNDER METHOD (B) OF SECTION 511. ALSO, IT FURTHER APPEARS THAT THE AMOUNT OF RETIRED PAY THAT WOULD ACCRUE TO LIEUTENANT COLONEL GALE, IF COMPUTED UNDER METHOD (B) OF SECTION 511, IS LESS THAN THE AMOUNT OF RETIRED PAY HE IS ENTITLED TO RECEIVE AND WHICH HE HAS BEEN RECEIVING EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AND AT THE RATES AUTHORIZED BY THE PERTINENT LAWS WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS THE RESPECTIVE SUBSEQUENT INCREASES THERETO.

ACCORDINGLY, THE DISALLOWANCES OF LIEUTENANT COLONEL GALE'S CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 24, 1954, IS SUSTAINED.