B-133514, NOV. 13, 1957

B-133514: Nov 13, 1957

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ATTORNEY AT LAW: YOU HAVE PRESENTED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12. COLONEL SPEECE IS SHOWN TO HAVE DIED ON SEPTEMBER 3. THE AUTHORITY THAT WAS VESTED IN YOU BY THE POWER OF ATTORNEY EXECUTED BY THE DECEDENT ON DECEMBER 4. DOES NOT DISCLOSE THE BASIS ON WHICH YOU ARE NOW ACTING ON BEHALF OF THE LATE COLONEL SPEECE. 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-133514, NOV. 13, 1957

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

YOU HAVE PRESENTED, IN YOUR LETTER OF JULY 22, 1957, A REQUEST IN THE CASE OF THE LATE COLONEL NEWTON W. SPEECE, U.S. ARMY, RETIRED, WHO DIED SEPTEMBER 3, 1956, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 30, 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.

AS ABOVE STATED, COLONEL SPEECE IS SHOWN TO HAVE DIED ON SEPTEMBER 3, 1956. THE AUTHORITY THAT WAS VESTED IN YOU BY THE POWER OF ATTORNEY EXECUTED BY THE DECEDENT ON DECEMBER 4, 1953, TERMINATED UPON HIS DEATH ON SEPTEMBER 3, 1956, AND YOUR LETTER OF JULY 22, 1957, DOES NOT DISCLOSE THE BASIS ON WHICH YOU ARE NOW ACTING ON BEHALF OF THE LATE COLONEL SPEECE. 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 COLONEL SPEECE'S RETIRED PAY WAS COMPUTED FROM THE DATE OF HIS RELEASE TO INACTIVE DUTY, APRIL 13, 1946, ON THE BASIS OF 27 YEARS AND 10 DAYS' ACTIVE SERVICE. IT APPEARS THAT HE ALSO HAD 2 YEARS, 7 MONTHS, AND 14 DAYS OF INACTIVE SERVICE. THUS, COLONEL SPEECE HAD OVER 29 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, COLONEL SPEECE WOULD 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 COLONEL WITH OVER 29 CUMULATIVE YEARS OF SERVICE TIMES 27 (REPRESENTING HIS ACTIVE SERVICE FACTOR).

IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT COLONEL SPEECE HAD ANY PERIOD OF ACTIVE SERVICE IN THE NATIONAL GUARD WHICH, IF ADDED TO THE 27 YEARS AND 10 DAYS' ACTIVE SERVICE WITH WHICH HE WAS CREDITED WOULD HAVE ENTITLED HIM TO USE AN ACTIVE SERVICE FACTOR GREATER THAN 27 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 COLONEL SPEECE COMPUTED UNDER METHOD (B) OF SECTION 511 OF THE 1949 LAW WAS NO GREATER THAN THE AMOUNT OF RETIRED PAY WHICH HE WAS ENTITLED TO RECEIVE AND WHICH HE WAS PAID EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AUTHORIZED IN TITLE IV, CAREER COMPENSATION ACT OF 1949, PURSUANT TO AN ELECTION MADE BY HIM ON THE AUTHORITY OF SECTION 411 OF THAT ACT, 63 STAT. 823.

ACCORDINGLY, THE DISALLOWANCE OF THE LATE COLONEL SPEECE'S CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 30, 1954, IS SUSTAINED.