B-138767, JUN 2, 1959

B-138767: Jun 2, 1959

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YOU STATE THAT FARRIS WAS TRANSFERRED TO THE UNITED STATES FLEET RESERVE ON NOVEMBER 6. WAS RELEASED TO INACTIVE DUTY ON THE SAME DATE. HE WAS PLACED ON THE RETIRED LIST OF THE UNITED STATES NAVY IN ACCORDANCE WITH THE NAVAL RESERVE ACT OF 1938 ON APRIL 1. HE WAS RESTORED TO HIS FORMER ENLISTED RATING UPON APPROVAL OF THE SECRETARY OF THE NAVY ON APRIL 14. NO PAYMENT WAS MADE DURING THE PERIOD APRIL 1 TO 13. SINCE HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY IN EXCESS OF $3. SINCE SUCH AMOUNT IS GREATER THAN $191.42 COMPUTED UNDER THE PERCENTAGE MULTIPLE FACTOR OF SECTION 511(B) OF THE CAREER COMPENSATION ACT OF 1949. HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON A SAVED-PAY BASIS.

B-138767, JUN 2, 1959

PRECIS-UNAVAILABLE

R. A. WILSON, DEPARTMENT OF THE NAVY:

BY SECOND ENDORSEMENT DATED FEBRUARY 17, 1959, THE OFFICE OF THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF FEBRUARY 2, 1959, REQUESTING A DECISION (ASSIGNED SUBMISSION NO. DO-N-400) AS TO THE PROPER RATES OF RETIRED PAY PAYABLE TO RAYMOND FARRIS, BMGC, USN (RETIRED), 310 66 50 (FORMERLY CHBOSN, 365 540) - ONE OF FOUR RETIRED MEMBERS REFERRED TO IN YOUR LETTER - IN THE CIRCUMSTANCES DISCLOSED.

YOU REFER TO OUR DECISION OF MARCH 7, 1958, B-129777, 37 COMP. GEN. 591, HOLDING THAT WE WOULD FOLLOW THE COURT OF CLAIMS DECISION IN THE CASE OF TATO V. UNITED STATES, 136 C. CLS. 651.

YOU STATE THAT FARRIS WAS TRANSFERRED TO THE UNITED STATES FLEET RESERVE ON NOVEMBER 6, 1946, AND WAS RELEASED TO INACTIVE DUTY ON THE SAME DATE. ON THAT DATE HE HAD COMPLETED 22 YEARS, 6 MONTHS, 5 DAYS' SERVICE. HE WAS PLACED ON THE RETIRED LIST OF THE UNITED STATES NAVY IN ACCORDANCE WITH THE NAVAL RESERVE ACT OF 1938 ON APRIL 1, 1954, AND ADVANCED TO THE RANK OF CHIEF BOATSWAIN PURSUANT TO SECTION 8(A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, FROM HIS DATE OF RETIREMENT. HE WAS RESTORED TO HIS FORMER ENLISTED RATING UPON APPROVAL OF THE SECRETARY OF THE NAVY ON APRIL 14, 1954. FARRIS COMPLETED 30 YEARS' ACTIVE AND INACTIVE SERVICE WITHIN THE MEANING OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, ON APRIL 30, 1954. YOU STATE THAT HE RECEIVED RETIRED PAY AS FOLLOWS FROM APRIL 1, 1954:

PERIOD GROSS MONTHLY RATE

4/1/54 - 4/13/54 NONE

4/14/54 - 3/31/55 $167.02

4/1/55 - 5/31/58 183.89

6/1/58 - 6/30/58 194.92

YOU POINT OUT THAT BECAUSE OF THE LIMITATIONS IMPOSED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, NO PAYMENT WAS MADE DURING THE PERIOD APRIL 1 TO 13, 1954, SINCE HE WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY IN EXCESS OF $3,000 PER ANNUM.

BASED ON OUR DECISION OF MARCH 7, 1958, FARRIS BECAME ENTITLED TO THE DIFFERENCE IN RETIRED PAY AS FOLLOWS:

PERIOD GROSS MONTHLY RATES TOTAL AMOUNT

4/1/54 - 4/13/54 $204.20 VS. NONE $ 88.49

4/14/54 - 3/31/55 204.20 VS. 167.02 430.05

4/1/55 - 5/31/58 216.45 VS. 183.89 1,237.28

6/1/58 - 6/30/58 229.44 VS. 194.92 34.52

$1,790.34

IN SETTLEMENT OF AUGUST 21, 1958, OUR CLAIMS DIVISION COMPUTED MR. FARRIS'S RETIRED PAY AS FOLLOWS:

PERIOD GROSS MONTHLY RATES

4/1/54 - 3/31/55 $191.42 VS. $167.02

4/1/55 - 5/31/58 223.68 VS. 183.89

6/1/58 - 6/30/58 237.10 VS. 194.92

SINCE UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, FARRIS'S RETIRED PAY COMPUTED UNDER THE ONE-HALF FORMULA, PLUS 10 PERCENT FOR GOOD CONDUCT, AMOUNTED TO $204.20, AND SINCE SUCH AMOUNT IS GREATER THAN $191.42 COMPUTED UNDER THE PERCENTAGE MULTIPLE FACTOR OF SECTION 511(B) OF THE CAREER COMPENSATION ACT OF 1949, HE IS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON A SAVED-PAY BASIS. HENCE, COMMENCING APRIL 1, 1954, HE IS ENTITLED TO RETIRED PAY AT THE MONTHLY RATE OF $204.20, AT THE RATE OF $216.45 COMMENCING APRIL 1, 1955 ($204.20 PLUS 6 PERCENT), AND AT THE RATE OF $229.44 COMMENCING JUNE 1, 1958 ($216.45 PLUS 6 PERCENT).

ON THE BASIS SHOWN ABOVE, IT APPEARS THAT MR. FARRIS IS ENTITLED TO AN ADDITIONAL $153.36 FOR THE PERIOD APRIL 1, 1954, TO MARCH 31, 1955 (DIFFERENCE BETWEEN $204.20 AND $191.42, $12.78 FOR 12 MONTHS).

HOWEVER, SINCE OUR SETTLEMENT OF AUGUST 21, 1958, COMPUTED HIS RETIRED PAY AT THE MONTHLY RATE OF $223.68 RATHER THAN $216.45, FOR THE PERIOD APRIL 1, 1955, TO MARCH 31, 1958 (38 MONTHS AT $7.23), AND AT THE RATE OF $237.10, RATHER THAN $229.44, FOR THE PERIOD JUNE 1 TO 30, 1958 (1 MONTH AT $7.66), IT APPEARS THAT HE WAS OVERPAID THE SUM OF $129.04 (DIFFERENCE BETWEEN $282.40 AND $153.36). ACCORDINGLY, THE DIFFERENCE IN PAY DUE HIM FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1958, $103.56 (DIFFERENCE BETWEEN $229.44 AND $194.92) SHOULD BE APPLIED TO HIS INDEBTEDNESS OF $129.04, LEAVING A BALANCE DUE THE UNITED STATES OF $25.48. OUR CLAIMS DIVISION WILL ISSUE A SUPPLEMENTAL SETTLEMENT TO ADJUST THE RETIRED PAY AND REQUEST MR. FARRIS TO REFUND THE REMAINING BALANCE OF THE OVERPAYMENT IN THE AMOUNT OF $25.46.