B-135391, APR. 16, 1958

B-135391, APR. 16, 1958

TO REAR ADMIRAL HAROLD F. FICK, USN, RET.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1958, WITH ENCLOSURE, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THE AMOUNT OF $358.88 PER MONTH APPARENTLY RECEIVED BY YOU DURING THE PERIOD FROM DECEMBER 1, 1946, TO AUGUST 6, 1947, INCLUSIVE, AND THE AMOUNT OF $398.75 PER MONTH TO WHICH YOU CLAIM TO BE ENTITLED FOR THAT PERIOD.

BY AN UNDATED COMMUNICATION RECEIVED IN OUR OFFICE ON OCTOBER 7, 1957, THE U.S. NAVY FINANCE CENTER, CLEVELAND, FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT YOUR CLAIM FOR AN ADJUSTMENT IN YOUR RETIRED PAY, AS INDICATED ABOVE, AND AMONG THE PAPERS TRANSMITTED THEREWITH WAS A LETTER DATED DECEMBER 22, 1949, FROM THE CHIEF OF NAVAL PERSONNEL TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, REPORTING THAT YOU HAD ACTIVE SERVICE AS A MIDSHIPMAN FROM JUNE 15, 1916, TO JUNE 6, 1919; ACTIVE SERVICE AS A COMMISSIONED OFFICER FROM JUNE 7, 1919, TO NOVEMBER 30, 1946; AND THAT YOU WERE RETIRED DECEMBER 1, 1946, AS A CAPTAIN, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410 (B) AND 410 (C). THE RECORD INDICATES THAT UNDER DATE OF NOVEMBER 20, 1957, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU FOR THE REASON THAT CONSIDERATION THEREOF BY OUR OFFICE APPEARED TO BE BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

AS A BASIS FOR REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, YOUR LETTER OF FEBRUARY 18, 1958, CONTAINS THE FOLLOWING PARAGRAPH:

"AS I UNDERSTAND THE COMP. GEN. DECISION B-131700 OF 17 JULY 1957, AS IT RELATES TO MY CASE, IT DECIDES THAT MY MONTHLY PAY SHOULD HAVE BEEN $398.75 (75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH OVER 27 YEARS) FROM THE DATE OF MY RETIREMENT ON 1 DECEMBER 1946, IN VIEW OF MY ADVANCEMENT IN RANK FOR COMBAT DUTY.'

SECTION 410 (B), INSOFAR AS IT IS APPLICABLE TO YOUR CLAIM, PROVIDES THAT WHERE ANY COMMISSIONED OFFICER OF THE REGULAR NAVY HAS COMPLETED MORE THAN TWENTY YEARS OF SERVICE IN THE NAVY, MARINE CORPS, ARMY, AIR FORCE, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME HEREAFTER, UPON HIS APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED ON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE. SECTION 410 (C) PROVIDES, AMONG OTHER THINGS, THAT EACH OFFICER RETIRED PURSUANT TO CERTAIN LAWS--- INCLUDING SECTION 410 (B/-- SHALL BE PLACED ON THE RETIRED LIST IN THE HIGHEST RANK, PERMANENT OR TEMPORARY, HELD BY HIM WHILE ON ACTIVE DUTY, IF HIS PERFORMANCE OF DUTY IN SUCH RANK AS DETERMINED BY THE SECRETARY OF THE NAVY HAS BEEN SATISFACTORY.

BY LETTER OF MARCH 24, 1958, THE CHIEF OF NAVAL PERSONNEL ADVISED OUR OFFICE THAT UNDER DATE OF SEPTEMBER 19, 1949, YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF REAR ADMIRAL, EFFECTIVE FROM AUGUST 7, 1947, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 410 (N), AND THAT THE COMMISSION FOR YOUR ADVANCEMENT WAS ISSUED TO YOU ON OCTOBER 14, 1949. SECTION 410 (C) CONTAINS THE FOLLOWING PROVISO:

"PROVIDED FURTHER, THAT OFFICERS OF THE CLASSES DESCRIBED IN THIS SUBSECTION WHO HAVE BEEN RETIRED PRIOR TO AUGUST 7, 1947, SHALL BE ENTITLED TO THE BENEFITS OF THIS SUBSECTION FROM AUGUST 7, 1947: * * *"

IT SEEMS CLEAR THAT YOUR RETIRED PAY WAS INCREASED FROM THE REPORTED AMOUNT OF $358.88 PER MONTH TO $398.75 PER MONTH, EFFECTIVE AUGUST 7, 1947, PURSUANT TO THE AUTHORITY CONTAINED IN THE ABOVE-QUOTED PROVISO. OTHER WORDS, THE BENEFITS OF SUBSECTION 410 (C) COULD NOT BE MADE RETROACTIVE BEYOND THE INDICATED DATED OF AUGUST 7, 1947.

THE CITED DECISION OF JULY 17, 1957, HAS BEEN CONSIDERED AND IT DOES NOT APPEAR THAT ANYTHING CONTAINED THEREIN RELATES TO ANY BENEFITS WHICH MAY HAVE ACCRUED TO YOU BY REASON OF YOUR ADVANCEMENT IN RANK FOR COMBAT DUTY. HOWEVER, ONE OF THE QUESTIONS CONSIDERED WAS WHETHER SERVICE AS A CADET IN THE UNITED STATES MILITARY OR THE UNITED STATES NAVAL ACADEMY PRIOR TO NOVEMBER 12, 1918, MAY BE CONSIDERED AS SERVICE IN A MILITARY CAPACITY WITHIN THE MEANING OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 368. THE CITED PARAGRAPH PROVIDES AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OF A HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

IN AN OPINION RENDERED DECEMBER 5, 1956, BY THE COURT OF CLAIMS IN THE CASE OF HARRISON G. TRAVIS V. UNITED STATES, 137 C.CLS. 148, IT WAS HELD, IN EFFECT, THAT TIME SPENT AS A CADET IN THE MILITARY ACADEMY IS SERVICE IN THE MILITARY FORCES WITHIN THE MEANING OF PARAGRAPH 4, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED. FOR READY REFERENCE, THERE IS ENCLOSED A COPY OF THE DECISION OF JULY 17, 1957, YOUR ATTENTION BEING INVITED TO QUESTION 2 ON PAGE TWO THEREOF. HOWEVER, IT IS TO BE NOTED THAT ANY RIGHT YOU MAY HAVE TO RETIRED PAY UNDER THAT SECTION ACCRUED TO YOU ON A DAY TO DAY BASIS COMMENCING DECEMBER 1, 1946, AND CONTINUING THEREAFTER THROUGH AUGUST 6, 1947. SINCE YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON OCTOBER 7, 1957, CONSIDERATION THEREOF BY OUR OFFICE IS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, CITED IN THE SETTLEMENT OF FEBRUARY 12, 1958. ACCORDINGLY, THE ACTION TAKEN IN CONNECTION WITH YOUR CLAIM WAS PROPER AND IS SUSTAINED.