B-140527, DEC. 19, 1962

B-140527, DEC. 19, 1962

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1962, REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED OCTOBER 8, 1962, WHICH DENIED THE CLAIM OF ELEANOR P. SMITH, EXECUTRIX OF THE ESTATE OF RAYMOND ALONSO SMITH, DECEASED, FOR INCREASED RETIRED PAY BELIEVED TO BE DUE THE DECEDENT COMMENCING APRIL 1, 1955, UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, CH. 20, 69 STAT. 18, ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (GOVER) V. UNITED STATES, 149 CT.CL. 716. SUCH CLAIM WAS DISALLOWED FOR REASONS SIMILAR TO THOSE STATED IN OUR DECISIONS OF MARCH 27, JULY 11 AND SEPTEMBER 21, 1962, B-147928, IN THE CASE OF DIONICIO MANUEL, WITH WHICH YOU APPEAR TO BE FAMILIAR AND HENCE WILL NOT BE REPEATED HERE.

YOU STATE THAT IT IS THE CLAIMANT'S POSITION IN THIS CASE, AS IT WAS IN THE MANUEL CASE, THAT THE DECEDENT WAS NEVER AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT, CH. 681, 63 STAT. 823; THAT HIS RIGHTS WERE DETERMINED BY THE NAVY DEPARTMENT TO BE CONTROLLED SOLELY BY SECTION 511 OF THAT ACT; AND THAT CONSEQUENTLY THE FOLLOWING STATEMENT IN OUR LETTER OF MARCH 27, 1962, TO MANUEL IS FOR APPLICATION TO THIS CLAIM:

"ALL OTHER MEMBERS RETIRED BEFORE OCTOBER 1, 1949, CAME UNDER THE PROVISIONS OF SECTION 511 WITHOUT CHOICE AND THEY RECEIVED RETIRED PAY UNDER THE METHOD INDICATED IN SECTION 511 WHICH GAVE THEM THE MOST FAVORABLE RETURN. THE GOVER CASE HOLDS THAT A MEMBER COVERED BY SECTION 511 HAD A RIGHT TO RECOMPUTATION BETWEEN THE TWO METHODS THERE PRESCRIBED AND THAT THIS RIGHT CONTINUED TO EXIST UNTIL CUT OFF BY THE ACT OF MAY 20, 1953, 72 STAT. 122.'

YOU ENCLOSED A COPY OF A LETTER DATED AUGUST 30, 1951, FROM THE BUREAU OF NAVAL PERSONNEL TO THE DECEDENT WHICH STATES THAT THE MEMBER WAS NOT ENTITLED TO THE ELECTION AS TO RETIREMENT PAY BENEFITS CONTEMPLATED BY SECTION 411 OF THAT ACT, SINCE THE PHYSICAL DISABILITY WHICH RESULTED IN HIS TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY. YOU ALSO INCLOSED A COPY OF FIRST ENDORSEMENT THEREON BY THE BUREAU OF SUPPLIES AND ACCOUNTS DATED NOVEMBER 1, 1951, STATING THAT THE DECEDENT WAS CURRENTLY RECEIVING THE MAXIMUM RATE OF RETIRED PAY DUE HIM PURSUANT TO SECTION 511 OF THAT ACT.

IT APPEARS UNNECESSARY TO DISCUSS THE MATTER OF WHETHER THE DECEDENT WAS AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411, SINCE A RIGHT TO THE BENEFITS OF SUCH ELECTION CAN ACCRUE ONLY IF THE ELECTION WAS MADE WITHIN THE FIVE-YEAR PERIOD THERE PRESCRIBED (SEE AFLAGUE, ET AL. (FORSTER, PLAINTIFF NO. 13), V. UNITED STATES, CT.CL.NO. 212-56, AND COBB, ET AL. (ELLIS, PLAINTIFF NO. 2), V. UNITED STATES, CT.CL.NO. 430-56, DECIDED NOVEMBER 7, 1962), OR UNLESS THE PERSON CONCERNED FAILED TO MAKE AN ELECTION--- WHICH WOULD HAVE RESULTED IN INCREASED RETIRED PAY UNDER LAWS THEN IN EFFECT--- BECAUSE OF ERRONEOUS INFORMATION FURNISHED BY THE ADMINISTRATIVE DEPARTMENT CONCERNED. THE INFORMATION CONTAINED IN THE LETTER OF AUGUST 30, 1951, DID NOT INDUCE MR. SMITH TO REFRAIN FROM MAKING AN ELECTION UNDER SECTION 411 (B) SINCE SUCH INFORMATION CLEARLY RELATED TO AN ELECTION UNDER SECTION 411 (A), THE MATTER OF WHETHER HIS PHYSICAL DISABILITY WAS INCURRED WHILE IN RECEIPT OF BASIC PAY BEING A RELEVANT FACTOR ONLY UNDER SECTION 411 (A). IT IS CLEAR THAT HE WOULD NOT HAVE MADE A SECTION 411 (B) ELECTION IN ANY EVENT SINCE THE SAVED RETIRED PAY PAYABLE UNDER SECTION 519 OF THE 1949 ACT AND WHICH HAS BEEN PAID TO HIM UNDER THE SANDERS RULE--- $147.26 COMMENCING OCTOBER 1, 1949, AND $153.15 COMMENCING APRIL 1, 1952 (REDUCED TO $145.86 COMMENCING JULY 1, 1952/--- EXCEEDS THAT WHICH WOULD HAVE BEEN PAYABLE PURSUANT TO METHOD (B) OF SECTION 511 UNDER A SECTION 411 (B) ELECTION (2 1/2 TIMES 21 YEARS OR 52 1/2 PERCENT OF ACTIVE DUTY PAY), $138.92 COMMENCING OCTOBER 1, 1949, AND $144.48 BEGINNING APRIL 1, 1952.

THE ARGUMENT THAT SINCE THE BUREAU OF SUPPLIES AND ACCOUNTS INFORMED HIM THAT HE WAS BEING PAID THE MAXIMUM AMOUNT TO WHICH HE WAS ENTITLED PURSUANT TO SECTION 511, HE SHOULD BE REGARDED AS BEING COVERED AUTOMATICALLY BY THE PROVISIONS OF THAT SECTION, IS WITHOUT SUBSTANCE. THAT SECTION APPLIES ONLY TO MEMBERS WHO WERE "RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY.' MR. SMITH WAS PLACED ON THE RETIRED LIST FOR DISABILITY. HE COULD HAVE SECURED THE BENEFITS OF THAT SECTION ONLY BY MEANS OF A TIMELY SECTION 411 (B) ELECTION.