B-139443, B-139444, JUL 27, 1959

B-139443, B-139444, JUL 27, 1959

PRECIS-UNAVAILABLE

FRED A. BANTZ, UNDER SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER FROM YOUR OFFICE DATED APRIL 13, 1959 (NCA213), REQUESTING CLARIFICATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN GENERAL ACCOUNTING OFFICE SETTLEMENTS DATED DECEMBER 16, 1958, AND JANUARY 15, 1959, IN THE CASES OF LIEUTENANT CHARLIE SHERROD EAST AND LIEUTENANT COMMANDER CLARENCE EARL WILLIAMS, RESPECTIVELY, BOTH RETIRED OFFICERS OF THE UNITED STATES NAVY.

LIEUTENANT EAST WAS ALLOWED ADDITIONAL RETIRED PAY UNDER THE RULE OF THE GORDON, FIELD AND SHERFEY CASES IN THE SETTLEMENT OF DECEMBER 16, 1958, FOR THE ALLOWABLE PERIOD PRECEDING OCTOBER 1, 1949, ONLY, WHEREAS IN THE SETTLEMENT OF JANUARY 15, 1959, ADDITIONAL RETIRED PAY DUE UNDER THE RULE OF THE GORDON, FIELD AND SHERFEY CASES WAS ALLOWED TO LIEUTENANT COMMANDER WILLIAMS FOR THE PERIOD OCTOBER 1, 1949, TO OCTOBER 31, 1958, INCLUSIVE, AS WELL AS FOR THE ALLOWABLE PERIOD PRECEDING OCTOBER 1, 1949. THE INQUIRY PRESENTED IN THE LETTER OF APRIL 13, 1959, RELATES TO THE REASON WHY LIEUTENANT COMMANDER WILLIAMS' CLAIM WAS ALLOWED AND THE CLAIM OF LIEUTENANT EAST WAS DENIED FOR THE PERIOD COMMENCING OCTOBER 1, 1949.

BOTH OFFICERS WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, AND BOTH OF THEM ELECTED, UNDER OPTION (A) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, TO QUALIFY FOR DISABILITY RETIRED PAY PURSUANT TO THE PROVISIONS OF THE 1949 LAW. THEY THEREBY BECAME ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, BY FURTHER ELECTING AS PRESCRIBED IN SECTION 402(D) OF THE 1949 LAW, 63 STAT. 818, TO COMPUTE THEIR RETIRED PAY (1) ON THE BASIS OF THE CREDITABLE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH ENTITLED UNDER SECTION 412 OF THE ACT, 63 STAT. 824, OR (2) ON THE PERCENTAGE OF THEIR DISABILITY AT THE TIME OF RETIREMENT. IN BOTH CASES THE GREATER AMOUNT OF RETIRED PAY RESULTED FROM THE PERCENTAGE OF DISABILITY - 60 PERCENT IN THE CASE OF LIEUTENANT COMMANDER WILLIAMS, AND 75 PERCENT (THE MAXIMUM FOR A 100 PERCENT DISABILITY RATING) IN THE CASE OF LIEUTENANT EAST.

THE RIGHT TO RECEIVE THE BENEFITS PRESCRIBED IN THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368 ("75 PER CENTUM OF *** ACTIVE DUTY PAY AT THE TIME OF *** RETIREMENT") AS A RESULT OF THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CLAIMS IN THE GORDON, FIELD AND SHERFEY DECISIONS OF APRIL 3, 1956, AND JANUARY 15, 1958, NECESSARILY ARISES, RETROACTIVELY EFFECTIVE, FROM A DATE PRIOR TO OCTOBER 1, 1949. IN B-137364, SEPTEMBER 30, 1958, IT WAS CONCLUDED THAT THIS OFFICE WOULD FOLLOW THE RULE ESTABLISHED IN THE GORDON, FIELD AND SHERFEY DECISIONS.

IN THE CASE OF LIEUTENANT COMMANDER WILLIAMS (GENERAL ACCOUNTING OFFICE CLAIMS FILE Z-1903772), THE AMOUNT OF RETIRED PAY WHICH HE ELECTED TO RECEIVE UNDER OPTION (A) OF SECTION 411 IS LESS THAN THAT WHICH HE HAS LEGALLY BEEN ENTITLED TO RECEIVE EFFECTIVE FROM OCTOBER 1, 1949, UNDER OPTION (B) OF SECTION 411 PURSUANT TO THE RULE OF THE GORDON, FIELD AND SHERFEY CASES. BECAUSE OF THAT SITUATION, WILLIAMS WAS ALLOWED THE PAY TO WHICH HE WAS ENTITLED NOTWITHSTANDING HIS ELECTION. COMPARE 33 COMP. GEN. 71, TRAVIS V. UNITED STATES, 137 C. CLS. 148, AND PHELAN V. UNITED STATES, C. CLS. NO. 50-57, DECIDED JUNE 3, 1959.

THE FACTS IN THE CASE OF LIEUTENANT EAST (GENERAL ACCOUNTING OFFICE CLAIMS DIVISION FILE Z-1906026) ARE DIFFERENT FOR THE REASON THAT, WHILE THE RATE OF HIS RETIRED PAY UNDER THE RULE OF THE GORDON, FIELD AND SHERFEY CASES IS GREATER DURING THE PERIOD OCTOBER 1, 1949, TO MARCH 31, 1955, INCLUSIVE, THAN THAT RECEIVED BY HIM DURING THAT SAME PERIOD PURSUANT TO HIS ELECTION OF OPTION (A) IN SECTION 411, THE RATE OF HIS RETIRED PAY UNDER OPTION (A) EFFECTIVE APRIL 1, 1955, EXCEEDED THE AMOUNT DUE HIM UNDER THE GORDON, FIELD AND SHERFEY RULE. IN THE ABSENCE OF AN EXPRESS AND SPECIFIC RESCISSION BY LIEUTENANT EAST OF HIS VALID ELECTION (MADE IN THE MONTH OF SEPTEMBER 1950) TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER OPTION (A) OF SECTION 411, THE SETTLEMENT OF DECEMBER 16, 1958, ALLOWED ADDITIONAL RETIRED PAY UNDER THE RULE OF THE GORDON, FIELD AND SHERFEY CASES FOR THE PERIOD FROM SEPTEMBER 8, 1948, TO SEPTEMBER 30, 1949, ONLY, SUCH ACTION APPEARING TO BE THE MOST ADVANTAGEOUS TO THE CLAIMANT AT THAT TIME. MR. EAST HAS NOW FILED AN ACTION IN THE COURT OF CLAIMS FOR FURTHER ADJUSTMENT OF HIS RETIRED PAY. SEE PETITION FILED JULY 9, 1959, IN EAST V. UNITED STATES, C. CLS. NO. 301 -59.

THE ENCLOSURES RECEIVED WITH THE LETTER OF APRIL 13, 1959, ARE RETURNED HEREWITH.