B-140123, JUL. 28, 1959

B-140123: Jul 28, 1959

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USN: REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. THE RECORD INDICATES THAT YOU WERE RETIRED AS A LIEUTENANT COMMANDER ON JUNE 30. THAT YOU WERE RECALLED TO ACTIVE DUTY ON SEPTEMBER 27. THAT YOU WERE RELEASED TO INACTIVE DUTY ON NOVEMBER 2. YOUR CIRCUMSTANCES ARE SIMILAR TO THOSE CONSIDERED IN THE GORDON. THE PLAINTIFFS IN THOSE CASES WERE ENTITLED TO RETIRED PAY COMPUTED BY THE METHOD THERE EXPLAINED "PLUS THE SUBSEQUENT INCREASES IN RETIRED PAY WHICH HAVE BEEN PROVIDED BY LAW.'. 63 STAT. 802 AND NONE WAS AWARDED THEM UNDER THE DECISIONS IN THOSE CASES. THE INCREASES IN RETIRED PAY THEY HAVE RECEIVED ON AND AFTER THAT DATE WERE THE PERCENTAGE INCREASES AUTHORIZED BY THE ACTS OF MAY 19.

B-140123, JUL. 28, 1959

TO COMMANDER EDWARD W. WUNCH., USN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1959, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 23, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY ON AND AFTER OCTOBER 1, 1949, BASED ON THE HOLDINGS IN THE CASES OF GORDON V. UNITED STATES, 134 C.CLS. 840; FIELD V. UNITED STATES, C.CLS.NO. 525-53, DECIDED JANUARY 15, 1958; AND SHERFEY V. UNITED STATES, C.CLS.NO. 324-56, DECIDED JANUARY 15, 1958.

THE RECORD INDICATES THAT YOU WERE RETIRED AS A LIEUTENANT COMMANDER ON JUNE 30, 1939, THAT YOU WERE RECALLED TO ACTIVE DUTY ON SEPTEMBER 27, 1940, AND THAT YOU WERE RELEASED TO INACTIVE DUTY ON NOVEMBER 2, 1946,AND ADVANCED TO THE RANK OF COMMANDER, AT WHICH TIME YOU HAD COMPLETED 28 YEARS, 1 MONTH AND 7 DAYS OF ACTIVE SERVICE.

IT APPEARS THAT WITH ONE IMPORTANT EXCEPTION, YOUR CIRCUMSTANCES ARE SIMILAR TO THOSE CONSIDERED IN THE GORDON, FIELD AND SHERFEY CASES. STATED IN THE COPY OF THE RETIRED NAVAL PERSONNEL NEWSLETTER ENCLOSED WITH YOUR LETTER, THE PLAINTIFFS IN THOSE CASES WERE ENTITLED TO RETIRED PAY COMPUTED BY THE METHOD THERE EXPLAINED "PLUS THE SUBSEQUENT INCREASES IN RETIRED PAY WHICH HAVE BEEN PROVIDED BY LAW.' NO RIGHT TO INCREASED RETIRED PAY ACCRUED TO THEM UNDER THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802 AND NONE WAS AWARDED THEM UNDER THE DECISIONS IN THOSE CASES. THEIR RE-RETIREMENTS PRIOR TO OCTOBER 1, 1949, ENTITLED THEM TO INCREASES UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, COMPUTED AT RATES OF PAY PRESCRIBED BY LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. THE INCREASES IN RETIRED PAY THEY HAVE RECEIVED ON AND AFTER THAT DATE WERE THE PERCENTAGE INCREASES AUTHORIZED BY THE ACTS OF MAY 19, 1952, 66 STAT. 79, MARCH 31, 1955, 69 STAT. 18, AND MAY 20, 1958, 72 STAT. 122, FOR MEMBERS ENTITLED TO RETIRED PAY UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949.

YOU HAVE OVER 28 YEARS OF ACTIVE SERVICE TO YOUR CREDIT AND THAT FACT PLACED YOU IN A MORE FAVORABLE POSITION THAN THE PLAINTIFFS IN THE CITED CASES WHO HAD LESS, SINCE IT ENABLED YOU TO QUALIFY FOR AN INCREASE IN RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT. IF SUCH PLAINTIFFS HAD HAD SUFFICIENT ACTIVE SERVICE TO QUALIFY FOR INCREASED RETIRED PAY UNDER SECTION 511, NO ADDITIONAL RETIRED PAY WOULD HAVE BEEN AWARDED THEM BY THE COURT ON AND AFTER OCTOBER 1, 1949, SINCE IN THAT EVENT, THEY ALREADY WOULD HAVE RECEIVED MORE THAN WAS PAYABLE UNDER THE RE-RETIREMENT RULE OF THOSE CASES.

DURING THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1952, YOU WERE PAID AT THE RATE OF $408.98 PER MONTH, COMPUTED AS FOLLOWS: $584.25 (PAY OF A COMMANDER WITH OVER 26 YEARS' SERVICE) TIMES 2 1/2 PERCENT TIMES 28 (YEARS OF ACTIVE SERVICE). IT APPEARS THAT YOU HAVE RECEIVED APPROPRIATE INCREASES IN RETIRED PAY SINCE THE LATTER DATE AS PROVIDED BY LAW. THE RATE PAYABLE UNDER THE CITED CASES FROM THE TIME OF YOUR RE-RETIREMENT TO APRIL 30, 1952--- YOU WERE PAID AT THAT RATE UP TO OCTOBER 1, 1949--- WAS $348.91 OR 75 PERCENT OF $465.21, THE ACTIVE DUTY PAY TO WHICH YOU WERE ENTITLED AT THE TIME OF YOUR RE-RETIREMENT, UNDER THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF JUNE 29, 1946, 60 STAT. 343.

IT IS CLEAR THAT DURING THE PERIOD OCTOBER 1, 1949, THROUGH MARCH 31, 1959, YOU HAVE RECEIVED RETIRED PAY IN EXCESS OF THAT PAYABLE UNDER THE THEORY OF THE GORDON, FIELD AND SHERFEY CASES. ACCORDINGLY, NO ADDITIONAL RETIRED PAY IS DUE TO YOU AND OUR SETTLEMENT OF APRIL 29, 1959, IS SUSTAINED.