B-135158, MAR. 17, 1958

B-135158: Mar 17, 1958

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CHARLES HOWARD SILVIA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 13. YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938. THAT YOU WERE DISCHARGED DECEMBER 4. WERE DISCHARGED MARCH 10. WERE DISCHARGED DECEMBER 31. WERE TRANSFERRED TO THE FLEET NAVAL RESERVE JULY 11. SUCH TRANSFER WAS EFFECTED UNDER THE ACT OF JULY 1. OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE. IT WAS SAID. - THAT THE PRACTICAL EFFECT OF SECTION 208 "IS TO ADD THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO SUCH TRANSFER TO THE SERVICE CREDITED TO HIM PRIOR TO SUCH TRANSFER AND ANY FRACTIONAL YEAR OF SIX MONTHS OR MORE APPEARING IN SUCH TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR'S SERVICE.'.

B-135158, MAR. 17, 1958

TO MR. CHARLES HOWARD SILVIA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1958, IN REGARD TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.

YOUR CLAIM FOR SUCH INCREASE IN PAY FOR THE PERIOD SEPTEMBER 6, 1947, TO SEPTEMBER 30, 1949, WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 13, 1958, ON THE GROUND THAT SINCE YOUR CREDITABLE SERVICE BEFORE AND AFTER TRANSFER TO THE FLEET NAVAL RESERVE AGGREGATED ONLY 16 YEARS, 9 MONTHS, AND 12 DAYS, YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994--- SUCH BENEFITS BEING CONTINGENT UPON AN AGGREGATE OF AT LEAST 19 YEARS AND 6 MONTHS' SERVICE.

IT APPEARS THAT YOU ENLISTED IN THE NAVY ON DECEMBER 8, 1908, FOR MINORITY; THAT YOU WERE DISCHARGED DECEMBER 4, 1912, CREDITABLE SERVICE 4 YEARS; THAT YOU REENLISTED MARCH 11, 1913, AND WERE DISCHARGED MARCH 10, 1917, CREDITABLE SERVICE 4 YEARS; THAT YOU REENLISTED MAY 12, 1917, AND WERE DISCHARGED DECEMBER 31, 1921, CREDITABLE SERVICE 4 YEARS, 7 MONTHS, AND 19 DAYS; AND THAT YOU REENLISTED JANUARY 2, 1922, AND WERE TRANSFERRED TO THE FLEET NAVAL RESERVE JULY 11, 1922, CREDITABLE SERVICE 6 MONTHS AND 10 DAYS. THUS, UPON YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU HAD CREDITABLE SERVICE TOTALLING 13 YEARS, 1 MONTH AND 29 DAYS. APPARENTLY, SUCH TRANSFER WAS EFFECTED UNDER THE ACT OF JULY 1, 1922, 42 STAT. 799, 800, WHICH PROVIDED, IN PERTINENT PART:

"* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE

IT FURTHER APPEARS THAT YOU PERFORMED ACTIVE DUTY FROM MAY 21, 1942, TO JANUARY 3, 1946, 3 YEARS, 7 MONTHS, AND 13 DAYS. THAT SERVICE ADDED TO YOUR SERVICE AT TIME OF TRANSFER, 13 YEARS, 1 MONTH, AND 29 DAYS, AGGREGATED 16 YEARS, 9 MONTHS, AND 12 DAYS.

IN OUR DECISION OF OCTOBER 3, 1952, 32 COMP. GEN. 159, 161, IT WAS SAID-- - IN ANSWER TO A QUESTION CONCERNING MEN TRANSFERRED TO THE FLEET RESERVE UPON COMPLETION OF A MINIMUM OF 16 YEARS AND 1 DAYS' SERVICE CREDITABLE IN DETERMINING ELIGIBILITY FOR SUCH TRANSFERS--- THAT THE PRACTICAL EFFECT OF SECTION 208 "IS TO ADD THE ACTIVE SERVICE PERFORMED SUBSEQUENT TO SUCH TRANSFER TO THE SERVICE CREDITED TO HIM PRIOR TO SUCH TRANSFER AND ANY FRACTIONAL YEAR OF SIX MONTHS OR MORE APPEARING IN SUCH TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR'S SERVICE.'

YOU REFER TO THE DISALLOWANCE OF YOUR CLAIM AS BEING AT VARIANCE WITH THE ABOVE STATEMENT, IT BEING YOUR CONTENTION THAT YOU SHOULD BE GIVEN A CONSTRUCTIVE CREDIT OF 16 YEARS AT DATE OF TRANSFER, TO WHICH SHOULD BE ADDED YOUR SUBSEQUENT ACTIVE DUTY OF 3 YEARS, 7 MONTHS, AND 13 DAYS, THUS GIVING YOU A CONSTRUCTIVE AGGREGATE OF 19 YEARS, 7 MONTHS, AND 13 DAYS' SERVICE, ENOUGH TO QUALIFY FOR INCREASED RETIRED PAY UNDER THE ABOVE SECTION 208.

THE STATEMENT QUOTED ABOVE FROM THE DECISION OF OCTOBER 3, 1952, WAS MADE IN CONNECTION WITH CASES OF TRANSFER TO THE FLEET RESERVE AFTER MORE THAN 16 YEARS' SERVICE, WHICH IS NOT THE SITUATION IN YOUR CASE. IN ANY EVENT, THE QUOTED STATEMENT IS TO THE EFFECT THAT ACTIVE SERVICE AFTER TRANSFER SHOULD BE ADDED TO THE SERVICE CREDITED AT TIME OF TRANSFER. THE ACT OF JULY 1, 1922, SUPRA, DID NOT PROVIDE THAT MEN TRANSFERRED THEREUNDER SHOULD BE CREDITED WITH 16 YEARS' SERVICE. INSTEAD, IT MERELY PROVIDED THAT SUCH MEN SHOULD RECEIVE THE SAME PAY AND ALLOWANCES AS IF THEY HAD BEEN TRANSFERRED AFTER 16 YEARS' SERVICE.

THE OTHER ARGUMENTS ADVANCED IN YOUR LETTER HAVE BEEN CONSIDERED AND DISCUSSED IN OUR DECISIONS, B-135160, DECEMBER 4, 1957, 37 COMP. GEN. - AND B-135160, JANUARY 29, 1958. A COPY OF EACH OF THOSE DECISIONS IS ENCLOSED FOR YOUR INFORMATION.