B-134508, JAN. 22, 1958

B-134508: Jan 22, 1958

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MICHAEL PATRICK DONNELLY: FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 5. THE FOLLOWING INFORMATION IS FURNISHED IN CONNECTION WITH SUBJECT MAN'S CLAIM: CHART TERM ENLISTED DISCHARGED DEDUCTIONS SERVICE FOR TRANSFER MIN 3-29- 10 2-11-15 4-10-13 4 YRS 2-13-15 2-12-19 4- 0- 0 4 YRS 5- 8-19 2- 9-23 4- 0- 0 4 YRS 2-23-23 7-30-26 3- 5- 8 . AVERAGE MARK IN CONDUCT FOR ALL SERVICE IS OVER 95 PERCENT.'. YOU WERE ALLOWED INCREASED RETIRED PAY FROM SEPTEMBER 2. INCREASE FOR GOOD CONDUCT WAS DISALLOWED ON THE GROUND THAT SUCH INCREASE WAS NOT AUTHORIZED BY LAW. WAS DISALLOWED ON THE GROUND THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE BUT NOT DURING A TIME OF NATIONAL EMERGENCY WAS NOT CREDITABLE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938.

B-134508, JAN. 22, 1958

TO MR. MICHAEL PATRICK DONNELLY:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 5, 1957, FROM KING AND KING, YOUR ATTORNEYS, IN REGARD TO YOUR SEVERAL CLAIMS FOR INCREASED RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, HAS REPORTED, IN CONNECTION WITH YOUR CASE, THAT:

"1. THE FOLLOWING INFORMATION IS FURNISHED IN CONNECTION WITH SUBJECT MAN'S CLAIM:

CHART TERM ENLISTED DISCHARGED DEDUCTIONS SERVICE FOR TRANSFER MIN 3-29- 10 2-11-15 4-10-13 4 YRS 2-13-15 2-12-19 4- 0- 0 4 YRS 5- 8-19 2- 9-23 4- 0- 0 4 YRS 2-23-23 7-30-26

3- 5- 8 -------- TOTAL

NAVAL SERVICE AT TIME OF TRANSFER

16- 3-21 ACTIVE DUTY 9- 8-39 TO 4-30-40 0- 7-23

1-29-42 TO 11- 3-453- 9- 5 ACTIVE DUTY AFTER TRANSFER AND PRIOR TO 8 SEPTEMBER 1939: 6-15-27 TO 10-20-28 5- 4-29 TO 4-30-31 3- 1 35 TO 9- 7-39 DATE OF RETIREMENT: 1 MAY 1940

2. HIGHEST RANK SATISFACTORILY HELD: CHIEF MACHINIST

3. AVERAGE MARK IN CONDUCT FOR ALL SERVICE IS OVER 95 PERCENT.'

ON JUNE 24, 1953, WE RECEIVED YOUR CLAIMS FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS, INCREASED TEN PERCENTUM FOR GOOD CONDUCT (SANDERS V. UNITED STATES, 120 C.CLS. 501), AND SUCH PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS FOR THE PERIODS MAY 2, 1940, TO JANUARY 28, 1942, AND SEPTEMBER 2, 1946, TO MARCH 6 (5), 1947.

BY OUR SETTLEMENT DATED JULY 15, 1954, YOU WERE ALLOWED INCREASED RETIRED PAY FROM SEPTEMBER 2, 1946, TO MARCH 5, 1947, ON THE BASIS OF ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. INCREASE FOR GOOD CONDUCT WAS DISALLOWED ON THE GROUND THAT SUCH INCREASE WAS NOT AUTHORIZED BY LAW. THE CLAIM FOR INCREASED RETIRED PAY FROM MAY 2, 1940, TO JANUARY 28, 1942, WAS DISALLOWED ON THE GROUND THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE BUT NOT DURING A TIME OF NATIONAL EMERGENCY WAS NOT CREDITABLE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, PROVIDING INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

ON JULY 28, 1954, WE RECEIVED YOUR CLAIM FOR INCREASED RETIRED PAY ON THE BASIS OF THE SANDERS DECISION FOR THE PERIOD NOVEMBER 4, 1945, TO SEPTEMBER 1, 1946. THAT CLAIM WAS ALLOWED ON SEPTEMBER 3, 1954, INSOFAR AS THE FORMULA OF ONE-HALF BASE PAY PLUS PERMANENT ADDITIONS WAS CONCERNED. INCREASE FOR GOOD CONDUCT WAS DISALLOWED FOR THE SAME REASONS AS STATED IN THE SETTLEMENT OF JULY 15, 1954.

IN THE LETTER OF NOVEMBER 5, 1957, RECEIVED BY US NOVEMBER 7, 1957, YOUR ATTORNEYS REQUEST RECONSIDERATION OF THE ABOVE TWO SETTLEMENTS ON THE BASIS OF EBINGER ET AL. V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, WHEREIN IT WAS HELD THAT, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, ALL ACTIVE DUTY PERFORMED AFTER JULY 1, 1925, AND AFTER TRANSFER TO THE FLEET RESERVE WAS CREDITABLE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 FOR INCREASED RETAINER AND RETIRED PAY.

IN THE LETTER OF NOVEMBER 5, 1957, YOUR ATTORNEYS STATE THAT: THE SETTLEMENT CERTIFICATES WHICH ARE ISSUED AT THAT TIME STATED THAT * * * NO INCREASED RETAINER PAY COULD BE INCLUDED FOR THE PERIODS MAY 1, 1931 THROUGH FEBRUARY 28, 1935, AND MAY 1, 1940 THROUGH JANUARY 28, 1942.' THE QUOTED SENTENCE IS THE FIRST NOTICE TO US OF ANY CLAIM BY YOU FOR THE PERIOD MAY 1, 1931, TO FEBRUARY 28, 1935.

ALSO, IN THE LETTER OF NOVEMBER 5, 1957, YOUR ATTORNEYS ASK THAT CONSIDERATION BE GIVEN TO RECOMPUTING YOUR PAY FOR THE PERIOD AUGUST 10, 1946, TO MARCH 5, 1947, ON THE BASIS OF 2 1/2 PERCENTUM FOR EACH YEAR OF ACTIVE SERVICE (HULSE V. UNITED STATES, 133 C.CLS. 848, DECIDED JANUARY 21, 1956).

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

YOUR CLAIMS FOR INCREASED RETIRED PAY, BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, FOR THE PERIODS MAY 1, 1931, TO FEBRUARY 28, 1935, MAY 2, 1940, TO JANUARY 28, 1942, AND NOVEMBER 4, 1945, TO AUGUST 9, 1946, ACCRUED ON AUGUST 10, 1946, THE DATE OF APPROVAL OF THE STATUTE GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 10, 1946, TO MARCH 5, 1947, SECURED DAY TO DAY FROM AUGUST 10, 1946, TO MARCH 5, 1947.

YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD MAY 1, 1931, TO FEBRUARY 28, 1935, WAS FILED WITH US ON NOVEMBER 7, 1957, MORE THAN TEN YEARS AFTER AUGUST 10, 1946, THE DATE OF ITS ACCRUAL. ACCORDINGLY, THAT CLAIM IS BARRED FROM CONSIDERATION BY THE STATUTE OF LIMITATIONS QUOTED ABOVE.

ALSO, YOUR CLAIM FOR INCREASED RETIRED PAY ON THE HULSE FORMULA FOR THE PERIOD AUGUST 10, 1946, TO MARCH 5, 1947--- PRESENTED AS AN AMENDMENT TO YOUR CLAIMS FOR INCREASED RETIRED PAY ON THE SANDERS FORMULA FOR THE PERIODS NOVEMBER 4, 1945, TO SEPTEMBER 1, 1946, AND SEPTEMBER 2, 1946, TO MARCH 5, 1947--- WAS NOT RECEIVED BY US UNTIL NOVEMBER 7, 1957, MORE THAN TEN YEARS AFTER THE EXPIRATION OF THE PERIOD COVERED BY THE AMENDMENT. AMENDMENT TO A CLAIM IS A NEW CLAIM INSOFAR AS THE ACT OF OCTOBER 9, 1940, IS CONCERNED. SEE OUR DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED. HENCE, NO PORTION OF YOUR AMENDED CLAIM MAY BE CONSIDERED BY US.

IN THE HULSE CASE THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE SANDERS CASE THAT INCREASES FOR GOOD CONDUCT MARKS COULD BE INCLUDED IN THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. ACCORDINGLY, THE DISALLOWANCE OF GOOD CONDUCT INCREASES IN THE SETTLEMENTS OF JULY 15, 1954, AND SEPTEMBER 3, 1954, IS SUSTAINED.

YOUR CLAIM FOR THE PERIOD MAY 2, 1940, TO JANUARY 28, 1942, IF OTHERWISE CORRECT, WILL BE ALLOWED ON THE BASIS OF ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. AS INDICATED ABOVE, INCREASE FOR GOOD CONDUCT IS NOT ALLOWABLE.