B-133493, NOV. 18, 1957

B-133493: Nov 18, 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 THE 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. INSTRUCTIONS ARE BEING ISSUED THIS DATE TO THE CLAIMS DIVISION OF THIS OFFICE TO REQUEST COMPLETE INFORMATION FROM THE DEPARTMENT OF THE ARMY WITH RESPECT TO MAJOR COWEN'S MILITARY SERVICE AND HIS RETIRED PAY STATUS.

B-133493, NOV. 18, 1957

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

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR MAJOR GUY G. COWEN, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 10, 1955, 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 THE 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.

IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT MAJOR COWEN HAD ANY PERIOD OR PERIODS OF ACTIVE SERVICE IN THE NATIONAL GUARD FOR WHICH HE HAS NOT BEEN GIVEN FULL CREDIT IN COMPUTING THE RATE OF HIS RETIRED PAY. HOWEVER, THE TOTAL NUMBER OF CUMULATIVE YEARS OF SERVICE (ACTIVE AND INACTIVE) TO BE USED IN DETERMINING THE PROPER RATE OF HIS MONTHLY BASIC PAY (LONGEVITY) UNDER SECTION 511 OF THE 1949 LAW CANNOT BE DETERMINED ON THE BASIS OF THE RECORD NOW BEFORE THIS OFFICE. THEREFORE, INSTRUCTIONS ARE BEING ISSUED THIS DATE TO THE CLAIMS DIVISION OF THIS OFFICE TO REQUEST COMPLETE INFORMATION FROM THE DEPARTMENT OF THE ARMY WITH RESPECT TO MAJOR COWEN'S MILITARY SERVICE AND HIS RETIRED PAY STATUS, TOGETHER WITH FURTHER INSTRUCTIONS DIRECTING SUCH ADJUSTMENT ACTION AS MAY BE FOUND APPROPRIATE AND IN ACCORDANCE WITH ANY NEW EVIDENCE.

YOU WILL BE DULY NOTIFIED WHEN FINAL ACTION IS TAKEN BY THIS OFFICE IN THE MATTER.