B-139342, NOV. 6, 1961

B-139342, NOV. 6, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 15, 1961, IN WHICH THE CLAIMS DIVISION OF OUR OFFICE DISALLOWED THE CLAIM OF WILLIAM HENRY MCGINN, A RETIRED PETTY OFFICER OF THE UNITED STATES NAVY, FOR THE DIFFERENCE BETWEEN (1) THE DISABILITY RETIRED PAY OF HIS GRADE AS INCREASED BY CREDIT FOR ALL OF HIS NAVAL SERVICE--- INCLUDING HIS ACTIVE SERVICE, HIS INACTIVE SERVICE IN THE FLEET RESERVE AND THE PERIOD HE WAS ON THE RETIRED LIST PRIOR TO HIS RECALL TO ACTIVE DUTY, AND (2) THE RETIRED PAY ACTUALLY RECEIVED BY HIM DURING THE PERIOD BEGINNING OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802). THE CLAIM IS BASED ON CERTAIN PROVISIONS OF THAT ACT AND ON THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF SELIGA V. UNITED STATES, DECIDED MARCH 6, 1957, 137 CT.CL. 710.

YOU FURNISHED WITH YOUR LETTER A COPY OF A LETTER DATED FEBRUARY 4, 1946, TO MR. MCGINN FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, WHICH READS AS FOLLOWS:

"YOUR MEDICAL RECORD ON FILE IN THE BUREAU OF MEDICINE AND SURGERY SHOWS THAT YOU WERE PLACED ON THE RETIRED LIST ON 1 DECEMBER 1939, BY REASON OF PHYSICAL DISABILITY, INCURRED IN THE LINE OF DUTY.'

MR. MCGINN IS PLAINTIFF NO. 2 IN THE CASE OF HINCKLEY, ET AL. V. UNITED STATES, CT.CL. NO. 153-59, NOW PENDING BEFORE THE COURT OF CLAIMS. MOTION TO DISMISS THAT ACTION, WITH RESPECT TO MR. MCGINN, WAS FILED IN JUNE 1961 WITH THE DEPARTMENT OF JUSTICE, TO BE HELD IN ESCROW PENDING SETTLEMENT OF THE CLAIM PRESENTED TO OUR OFFICE. IN VIEW OF YOUR REQUEST FOR RECONSIDERATION OF THE SETTLEMENT OF SEPTEMBER 15, 1961, IT IS PRESUMED THAT THE MOTION TO DISMISS REMAINS IN ESCROW.

THE DISALLOWANCE OF MR. MCGINN'S CLAIM WAS BASED ON A REPORT DATED AUGUST 3, 1961, RECEIVED BY US FROM THE CHIEF OF NAVAL PERSONNEL, WHO IS THE OFFICIAL CUSTODIAN OF THE RECORDS OF PERSONNEL OF THE UNITED STATES NAVY. IT IS SHOWN THAT AFTER SERVING SUCCESSIVE TERMS OF ENLISTMENT IN THE NAVY, MR. MCGINN WAS TRANSFERRED TO THE FLEET RESERVE ON NOVEMBER 1, 1934, BEING CREDITED WITH OVER 16 YEARS OF ACTIVE SERVICE FOR TRANSFER PURPOSES; THAT HE WAS RELEASED TO INACTIVE DUTY ON THE SAME DATE; THAT, UNDER AUTHORITY OF THE ACT OF JUNE 25, 1938, 52 STAT. 1175, HE WAS TRANSFERRED TO THE RETIRED LIST ON DECEMBER 1, 1939, BY REASON OF PHYSICAL DISABILITY; AND THAT HE AFTERWARD SERVED ON ACTIVE DUTY FROM FEBRUARY 9, 1942, TO DECEMBER 30, 1944.

IT WILL BE NOTED THAT AT THE TIME OF MR. MCGINN'S TRANSFER TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY, HE WAS IN AN INACTIVE STATUS. THIS CONNECTION, OUR RECORDS INDICATE THAT ON OCTOBER 17, 1951, MR. MCGINN WAS ADVISED BY THE CHIEF OF NAVAL PERSONNEL THAT HE WAS NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SINCE THE PHYSICAL DISABILITY WHICH RESULTED IN HIS TRANSFER TO THE RETIRED LIST WAS NOT INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY.

THE PRESENT CLAIM, BOTH HERE AND IN THE COURT OF CLAIMS, FOR DISABILITY RETIRED PAY FROM OCTOBER 1, 1949, IS STATED TO BE PREDICATED ON SECTIONS 202, 402, AND 411 OF THE CAREER COMPENSATION ACT OF 1949.

SECTION 411 OF THAT ACT PROVIDED:

"PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.'

THE QUALIFICATIONS FOR DISABILITY RETIRED PAY UNDER THE CAREER COMPENSATION ACT OF 1949 WERE SET FORTH IN SECTION 402. IN SUBSECTIONS (A) AND (B) OF THAT SECTION THERE WAS REQUIRED A DETERMINATION BY THE SECRETARY CONCERNED---

"* * * (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY

IN SUBSECTION 402 (C) IT WAS REQUIRED THAT THE SECRETARY CONCERNED SHOULD DETERMINE---

"* * * (1) THAT A MEMBER OF THE UNIFORMED SERVICES, OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF PHYSICAL DISABILITY RESULTING FROM AN INJURY; * * *(4) THAT SUCH INJURY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, FULL-TIME TRAINING DUTY, OTHER FULL-TIME DUTY, OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE * * *.'

SINCE THE CHIEF OF NAVAL PERSONNEL HAS REPORTED THAT MR. MCGINN'S PHYSICAL DISABILITY RETIREMENT WAS A RESULT OF A PHYSICAL DISABILITY WHICH OCCURRED WHILE HE WAS IN RECEIPT OF RETAINER PAY, IT MUST BE PRESUMED THAT SUCH RETIREMENT RESULTED FROM A REQUIRED PHYSICAL EXAMINATION UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AND PURSUANT TO THE SECOND PROVISO OF THAT SECTION. WE FIND NO BASIS FOR CONCLUDING THAT THE REPORT OF THE BUREAU OF MEDICINE AND SURGERY THAT THE DISABILITY "WAS INCURRED IN THE LINE OF DUTY" IS TANTAMOUNT TO A DETERMINATION BY THE SECRETARY OF THE NAVY THAT THE DISABILITY WAS INCURRED "WHILE ENTITLED TO RECEIVE BASIC PAY.'

THE INFORMATION FURNISHED MR. MCGINN THAT HE WAS NOT ENTITLED TO MAKEAN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OBVIOUSLY RELATED TO A METHOD (A) ELECTION. WHILE IT IS TRUE THAT HE COULD NOT HAVE EXERCISED A VALID METHOD (A) ELECTION, SINCE HE WAS NOT ENTITLED TO BASIC PAY WHEN HIS DISABILITY WAS INCURRED, THE RECORDS SHOW THAT HE EXERCISED A METHOD (B) ELECTION AND IT IS REPORTED BY THE NAVY FINANCE CENTER THAT HIS RETIRED PAY COMMENCING OCTOBER 1, 1949, WAS COMPUTED UNDER METHOD (B) OF SECTION 511, NAMELY, BASIC PAY UNDER THE CAREER COMPENSATION ACT WHICH THE MEMBER WOULD RECEIVE IF SERVING ON ACTIVE DUTY, MULTIPLIED BY 2 1/2 PERCENT, MULTIPLIED BY HIS YEARS OF ACTIVE SERVICE IN THIS CASE 19.

THE REPORT FROM THE NAVY FINANCE CENTER SHOWS THAT ON SEPTEMBER 30, 1949, MR. MCGINN WAS IN RECEIPT OF RETIRED PAY AT THE RATE OF $85.50 PER MONTH AND THAT FROM OCTOBER 1, 1949, TO APRIL 30, 1952, HE WAS PAID AT THE RATE OF $111.72 PER MONTH, APPARENTLY COMPUTED ON THE BASIC PAY, UNDER THE CAREER COMPENSATION ACT OF 1949, OF A PETTY OFFICER, FIRST CLASS, WITH OVER 18 YEARS OF SERVICE FOR LONGEVITY PURPOSES, $235.20, TIMES 2 1/2 PERCENT TIMES 19. CREDIT FOR INACTIVE TIME IN THE FLEET RESERVE WAS PROPERLY OMITTED SINCE THE PROVISO TO SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 FORBIDS THE INCLUSION OF CREDIT FOR SUCH INACTIVE TIME IN COMPUTING RETIRED PAY EXCEPT AS PROVIDED IN TITLE IV OF THE ACT. THE REPORT FROM THE NAVY FINANCE CENTER SHOWS THAT MR. MCGINN SUBSEQUENTLY RECEIVED MONTHLY RETIRED PAY AS FOLLOWS: MAY 1, 1952, TO MARCH 31, 1955, $116.19; APRIL 1, 1955, TO MAY 31, 1958, $129.68; AND JUNE 1, 1958, TO JULY 31, 1961, $137.46.