B-133510, NOV. 6, 1957

B-133510, NOV. 6, 1957

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

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR COLONEL HARRY M. HENDERSON, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 1, 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 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 IT APPEARS THAT COLONEL HENDERSON HAS OVER 30 CUMULATIVE YEARS OF SERVICE (ACTIVE AND INACTIVE) FOR THE PURPOSE OF DETERMINING THE RATE OF HIS MONTHLY BASIC PAY. THE RECORD INDICATES THAT HE HAS 27 YEARS, 11 MONTHS, AND 1 DAY OF ACTIVE SERVICE. UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, COLONEL HENDERSON IS 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 COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 28 (REPRESENTING HIS "ACTIVE SERVICE" FACTOR). THE DEPARTMENT OF THE ARMY REPORTS THAT COLONEL HENDERSON HAS BEEN PAID RETIRED PAY COMPUTED ON THAT BASIS, EFFECTIVE FROM OCTOBER 1, 1949, PURSUANT TO THE ELECTION MADE BY HIM UNDER THE AUTHORITY OF SECTION 411 OF THE 1949 LAW, 63 STAT. 823.

YOU DO NOT ALLEGE IN YOUR LETTER OF JULY 22, 1957, THAT COLONEL HENDERSON HAD ANY PERIOD OR PERIODS OF ACTIVE SERVICE IN THE NATIONAL GUARD FOR WHICH HE HAS NOT BEEN GIVEN FULL CREDIT IN THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949. ACCORDINGLY, THE DISALLOWANCE OF HIS CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 1, 1954, IS SUSTAINED.