B-136160, JUL. 23, 1958

B-136160, JUL. 23, 1958

TO MR. MARCELO TUBI:

YOUR LETTER OF APRIL 19, 1958, REQUESTS, IN EFFECT, RECONSIDERATION OF YOUR CLAIM, WHICH WAS DENIED BY LETTER OF OUR CLAIMS DIVISION DATED SEPTEMBER 25, 1957. YOU WERE THERE INFORMED THAT YOU WERE NOT ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY YOU AFTER TRANSFER TO THE FLEET NAVAL RESERVE, TO AN ADJUSTMENT OF RETIRED OR RETAINER PAY REPRESENTING THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY AND SUCH PAY COMPUTED AS ONE-THIRD OF BASE PAY.

YOU STATE THAT AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE ON OCTOBER 29, 1937, YOU HAD COMPLETED 16 YEARS, 3 MONTHS, AND 8 DAYS NAVAL SERVICE, AND THAT YOU RETURNED TO ACTIVE SERVICE ON NOVEMBER 6, 1944, AND WERE DISCHARGED ON NOVEMBER 29, 1945, MAKING A TOTAL ACTIVE NAVAL SERVICE OF 17 YEARS, 4 MONTHS, AND 1 DAY. YOU STATE FURTHER THAT YOU CLEARLY UNDERSTOOD OUR LETTER ADVISING THAT YOUR TOTAL RECORDED ACTIVE DUTY NAVAL SERVICE DID NOT EQUAL THE 20 YEARS SERVICE NECESSARY TO QUALIFY FOR RETIREMENT BENEFITS BASED UPON THE HALF PAY FORMULA.

YOU NOW ASK, IN EFFECT, WHETHER THE FACT THAT YOU WERE ORDERED TO REPORT FOR ACTIVE DUTY AT THE RECEIVING SHIP, CAVITE, IN DECEMBER 1941, BUT TO WHICH DUTY YOU WERE PREVENTED FROM REPORTING DUE TO THE OUTBREAK OF HOSTILITIES, PLUS THE FACT THAT YOU SERVED TWO PERIODS OF TIME IN GUERRILLA ORGANIZATIONS OF THE SAMAR AND LEYTE AREA COMMANDS, ALLEGEDLY RECOGNIZED BY THE UNITED STATES GOVERNMENT, WILL ENTITLE YOU TO ACTIVE DUTY SERVICE CREDIT SUFFICIENT TO QUALIFY YOU AS A 20-YEAR MAN WITH RETIREMENT PAY COMPUTED AT HALF PAY.

IT WAS HELD IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT MEMBERS TRANSFERRED TO THE FLEET RESERVE AFTER 16 YEARS SERVICE, WHO WERE RECALLED TO ACTIVE DUTY IN WORLD WAR II AND WHOSE PERIOD OF SUCH ACTIVE DUTY, WHEN ADDED TO THEIR PRIOR ACTIVE NAVAL SERVICE, TOTALED 20 OR MORE YEARS OF ACTIVE NAVAL SERVICE, WERE ENTITLED, UPON RETURN TO AN INACTIVE STATUS, TO THE PAY PROVIDED FOR MEMBERS WHO ENLISTED IN THE NAVY ON OR PRIOR TO JULY 1, 1925, AND WERE TRANSFERRED TO THE FLEET RESERVE AFTER 20 OR MORE YEARS OF NAVAL SERVICE. HOWEVER, NOTHING IN THE LANGUAGE OF THE LAW OR IN ITS LEGISLATIVE HISTORY SUGGESTS THAT IT WAS INTENDED TO AUTHORIZE ADDITIONAL CREDITS FOR OTHER THAN ACTUAL NAVAL SERVICE SO THAT NEITHER MERELY POTENTIAL NAVAL SERVICE NOR YOUR SERVICE WITH GUERRILLA COMPONENTS OF THE PHILIPPINE ARMY COULD BE ADDED TO YOUR ACTUAL ACTIVE NAVAL SERVICE IN ORDER TO INCREASE NAVY RETIREMENT BENEFITS.

IN DECISION OF JUNE 19, 1947, B-55823, TO THE SECRETARY OF THE NAVY, COPY ENCLOSED, WE HELD THAT TRANSFERRED MEMBERS OF THE FLEET RESERVE WHO HAD SERVED WITH THE GUERRILLA FORCES IN THE PHILIPPINES AND LATER WITH THE PHILIPPINE ARMY MAY NOT BE REGARDED, BY REASON OF THE PROHIBITION CONTAINED IN THE NAVAL RESERVE ACT OF 1938, AGAINST NAVAL RESERVISTS BEING MEMBERS OF OTHER MILITARY OR NAVAL ORGANIZATIONS, AS HAVING RELINQUISHED THEIR LEGAL STATUS AS NAVAL RESERVISTS, AND THAT THOSE MEMBERS WHO HAD SERVED WITH THE GUERRILLA FORCES IN THE PHILIPPINES AND WITH THE PHILIPPINE ARMY AND WHOSE PAY FOR SUCH SERVICES WAS CHARGED, DIRECTLY OR INDIRECTLY TO APPROPRIATED FUNDS MADE AVAILABLE TO THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINES FOR THE EXPENSES OF MAINTENANCE AND OPERATION OF ITS ARMY MAY NOT BE REGARDED AS ENTITLED TO PAYMENT OF RETIRED OR RETAINER PAY FOR ANY PERIOD DURING WHICH THEY RECEIVED PAY FOR SERVICES WITH THE GUERRILLAS OR WITH THE PHILIPPINE ARMY.

THEREFORE, IT MUST BE CONCLUDED THAT, BEING INCONSISTENT WITH YOUR LEGAL STATUS AS A MEMBER OF THE FLEET RESERVE, YOUR GUERRILLA SERVICE IS NOT WITHIN THE CONTEMPLATION OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, SO AS TO PERMIT ITS BEING ADDED TO YOUR ACTIVE NAVAL SERVICE TO INCREASE RETIRED PAY BENEFITS.

ACCORDINGLY, THE DENIAL OF YOUR CLAIM FOR SUCH BENEFITS WAS CORRECT AND MUST BE SUSTAINED.