B-137338, MAY 31, 1961

B-137338: May 31, 1961

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. IT IS REPORTED THAT THE RECORDS OF THE U.S. WAS TRANSFERRED TO THE FLEET RESERVE. THAT HE WAS PLACED ON THE RETIRED LIST ON FEBRUARY 1. THAT HE WAS RELEASED THEREFROM ON SEPTEMBER 24. HIS HIGHEST RANK AT LAST RELEASE TO INACTIVE DUTY WAS LIEUTENANT (JG). THE RECORDS OF THE NAVY FINANCE CENTER FURTHER SHOW THAT THE MEMBER WAS PAID RETIRED PAY AT THE RATE OF $251.02 PER MONTH FOR THE PERIOD APRIL 1. THE PROBLEM PRESENTED IS WHETHER MR. IT APPEARING THAT SUCH ACTIVE-DUTY PAY IS $413.40 PER MONTH AND THE PERCENTAGE FACTOR IS 60 (24 TIMES 2 1/2 PERCENT). SINCE THIS IS LESS THAN HE HAS RECEIVED UNDER METHOD (A). IT APPEARS THAT HE IS NOT ENTITLED TO ANY ADDITIONAL RETIRED PAY.

B-137338, MAY 31, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1961, SUBMITTING, ON BEHALF OF YOUR CLIENT, ELBERT C. HAYES, A REVISED CLAIM FOR INCREASED RETIRED PAY UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, AND SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS INTERPRETED BY THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL.NO. 535-57, DECIDED MAY 4, 1960, AND 40 COMP. GEN. 222.

IT IS REPORTED THAT THE RECORDS OF THE U.S. NAVY FINANCE CENTER SHOW THAT LIEUTENANT (JG) ELBERT C. HAYES, UNITED STATES NAVY, RETIRED, WAS TRANSFERRED TO THE FLEET RESERVE, CLASS F4D ON FEBRUARY 15, 1930, IN THE RATING OF CHIEF COMMISSARY STEWARD (PA) WITH A TOTAL SERVICE OF 19 YEARS, 8 MONTHS AND 8 DAYS FOR PAY PURPOSES; THAT HE WAS PLACED ON THE RETIRED LIST ON FEBRUARY 1, 1940, AND RECALLED TO ACTIVE DUTY ON JUNE 25, 1941; AND THAT HE WAS RELEASED THEREFROM ON SEPTEMBER 24, 1945, AT WHICH TIME HE HAD COMPLETED 23 YEARS, 11 MONTHS AND 8 DAYS OF ACTIVE SERVICE. HIS HIGHEST RANK AT LAST RELEASE TO INACTIVE DUTY WAS LIEUTENANT (JG).

THE RECORDS OF THE NAVY FINANCE CENTER FURTHER SHOW THAT THE MEMBER WAS PAID RETIRED PAY AT THE RATE OF $251.02 PER MONTH FOR THE PERIOD APRIL 1, 1955, TO MAY 31, 1958, ON THE BASIS OF METHOD (A), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AND THAT HE RECEIVED AN APPROPRIATE INCREASE IN HIS RETIRED PAY ON JUNE 1, 1958.

THE PROBLEM PRESENTED IS WHETHER MR. HAYES' RETIRED PAY WOULD BE INCREASED IF COMPUTED UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT, AFTER THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955, AS FOLLOWS: 2 1/2 PERCENT MULTIPLIED BY HIS YEARS OF ACTIVE SERVICE, TIMES THE PAY OF A LIEUTENANT (JG) WITH HIS YEARS OF SERVICE AS PRESCRIBED IN THE 1955 ACT. IT APPEARING THAT SUCH ACTIVE-DUTY PAY IS $413.40 PER MONTH AND THE PERCENTAGE FACTOR IS 60 (24 TIMES 2 1/2 PERCENT), THE RATE PAYABLE UNDER METHOD (B) WOULD BE $248.04 PER MONTH. SINCE THIS IS LESS THAN HE HAS RECEIVED UNDER METHOD (A), IT APPEARS THAT HE IS NOT ENTITLED TO ANY ADDITIONAL RETIRED PAY.