B-133502, NOV. 20, 1957

B-133502: Nov 20, 1957

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ATTORNEY AT LAW: YOU HAVE PRESENTED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12. MAJOR RANDALL IS SHOWN TO HAVE DIED ON JUNE 30. THE AUTHORITY THAT WAS VESTED IN YOU BY THE POWER OF ATTORNEY EXECUTED BY THE DECEDENT ON NOVEMBER 24. DOES NOT DISCLOSE THE BASIS ON WHICH YOU ARE NOW ACTING ON BEHALF OF THE LATE MAJOR RANDALL. YOUR REQUEST WILL BE CONSIDERED AS PROPER. 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.

B-133502, NOV. 20, 1957

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

YOU HAVE PRESENTED, IN YOUR LETTER OF JULY 22, 1957, A CLAIM ON BEHALF OF THE LATE MAJOR HOWARD M. RANDALL, U.S. ARMY, RETIRED, WHO DIED JUNE 30, 1954, 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.

AS ABOVE STATED, MAJOR RANDALL IS SHOWN TO HAVE DIED ON JUNE 30, 1954. THE AUTHORITY THAT WAS VESTED IN YOU BY THE POWER OF ATTORNEY EXECUTED BY THE DECEDENT ON NOVEMBER 24, 1953, TERMINATED UPON HIS DEATH ON JUNE 30, 1954, AND YOUR LETTER OF JULY 22, 1957, DOES NOT DISCLOSE THE BASIS ON WHICH YOU ARE NOW ACTING ON BEHALF OF THE LATE MAJOR RANDALL. HOWEVER, IN VIEW OF THE PARTICULAR CIRCUMSTANCES, YOUR REQUEST WILL BE CONSIDERED AS PROPER.

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.

IN THE INSTANT CASE THE DEPARTMENT OF THE ARMY HAS REPORTED TO THIS OFFICE THAT MAJOR RANDALL'S RETIRED PAY WAS COMPUTED FROM THE DATE OF HIS RELEASE TO INACTIVE DUTY, FEBRUARY 1, 1946, ON THE BASIS OF A TOTAL OF 23 YEARS, 8 MONTHS, AND 23 DAYS' CUMULATIVE SERVICE (ACTIVE AND INACTIVE) FOR BASIC PAY. IT APPEARS THAT HE HAD 9 YEARS, 6 MONTHS, AND 29 DAYS OF ACTIVE SERVICE. THUS, ON THE BASIS OF THE CUMULATIVE YEARS OF SERVICE AS REPORTED BY THE DEPARTMENT OF THE ARMY TO BE CREDITABLE TO HIM AND APPLYING THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, MAJOR RANDALL WOULD APPEAR TO HAVE BEEN 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 MAJOR WITH OVER 22 BUT NOT OVER 26 CUMULATIVE YEARS OF SERVICE TIMES 10 (REPRESENTING HIS "ACTIVE SERVICE" FACTOR).

IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT MAJOR RANDALL HAD ANY PERIOD OR PERIODS OF ACTIVE SERVICE IN THE NATIONAL GUARD WHICH, IF ADDED TO THE ACTIVE SERVICE ABOVE REFERRED TO, WOULD HAVE ENTITLED HIM TO USE AN ACTIVE SERVICE FACTOR GREATER THAN 10 WHEN COMPUTING HIS RETIRED PAY UNDER METHOD (B) OF SECTION 511. ALSO, IT FURTHER APPEARS THAT THE AMOUNT OF RETIRED PAY THAT WOULD HAVE ACCRUED TO HIM COMPUTED UNDER METHOD (B) OF SECTION 511 WAS FAR LESS THAN THE AMOUNT HE WAS ENTITLED TO RECEIVE AND WHICH HE WAS PAID EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AND AT THE RATES AUTHORIZED BY PERTINENT LAWS WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL SUBSEQUENT INCREASES THERETO.