B-141884, MAR. 30, 1960

B-141884, MAR. 30, 1960

TO COMMANDER LLOYD E. CLIFFORD, 17107, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 6, 1960, AND PRIOR CORRESPONDENCE, REQUESTING, IN EFFECT, REVIEW OF OFFICE SETTLEMENT DATED AUGUST 31, 1959, OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY.

IT APPEARS THAT YOU DO NOT QUESTION THE 27 YEARS' SERVICE USED IN DETERMINING YOUR BASIC PAY, BUT DO QUESTION THE USE OF 28 YEARS' ACTIVE SERVICE (28 TIMES 2 1/2 PERCENT, OR 70 PERCENT) AS THE MULTIPLIER IN COMPUTING YOUR RETIRED PAY FROM 1946 (DATE OF RELEASE TO INACTIVE DUTY). YOU STATE THAT IT IS YOUR UNDERSTANDING THAT YOU ARE ENTITLED TO CREDIT FOR THE SEVEN AND ONE-HALF MONTHS' TIME SPENT ON THE RETIRED LIST FOLLOWING YOUR RETIREMENT ON JUNE 30, 1939, AND PRIOR TO YOUR RECALL TO ACTIVE DUTY ON FEBRUARY 15, 1940, IN THE COMPUTATION OF YOUR RETIRED PAY RATE, AND YOU CITE OFFICE DECISION B-131700, DATED SEPTEMBER 3, 1959, AS FURTHER AUTHORITY FOR THE CREDITING OF SUCH INACTIVE TIME SPENT ON THE RETIRED LIST.

THAT DECISION CONCERNED THE ADDITIONAL RETIRED PAY RIGHTS ACQUIRED BY A MEMBER RETIRED FOR PHYSICAL DISABILITY, UPON HIS RELEASE FROM A PERIOD OF ACTIVE DUTY PERFORMED SUBSEQUENT TO RETIREMENT. SUCH ADDITIONAL RIGHTS WERE ACQUIRED ON THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF DANIELSON V. UNITED STATES, 121 C.CLS. 533; BAILEY V. UNITED STATES, 134 C.CLS. 471, AND TRAVIS V. UNITED STATES, 137 C.CLS. 148. IN THE LATTER TWO CASES THE COURT BROADENED THE DANIELSON CONCEPT TO INCLUDE, IN CASES OF RETIREMENT FOR DISABILITY AND SUBSEQUENT ACTIVE DUTY PERFORMED PRIOR TO OCTOBER 1, 1949, ENTITLEMENT TO LONGEVITY CREDIT FOR INACTIVE RETIRED TIME IN COMPUTATIONS OF RETIRED PAY ON AND AFTER OCTOBER 1, 1949, ON THE ACTIVE DUTY PAY RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818.

SINCE THOSE CASES RELATED TO THE CREDITING OF INACTIVE SERVICE ON THE RETIRED LIST IN THE BASIC PAY FACTOR AND NOT IN THE MULTIPLIER FACTOR, THE APPLICATION OF THE DECISION CITED BY YOU, EVEN IF PERTINENT TO YOUR CASE, WOULD NOT RESULT IN THE INCLUSION OF THE INACTIVE SERVICE ON THE RETIRED LIST IN THE MULTIPLIER FACTOR IN COMPUTING YOUR RETIRED PAY.

SINCE YOU WERE RETIRED PRIOR TO OCTOBER 1, 1949, NOT FOR DISABILITY, AND SINCE YOUR RETIRED PAY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 EXCEEDS THE AMOUNT OF YOUR RETIRED PAY UNDER PRIOR LAW, YOUR RETIRED PAY IS COMPUTED UNDER SECTION 511 OF THAT ACT WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION (1) MEMBERS OF THE UNIFORMED SERVICES HERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY * * * SHALL BE ENTITLED TO RECEIVE RETIRED PAY * * * IN THE AMOUNT WHICHEVER IS THE GREATER, COMPUTED BY ONE OF THE FOLLOWING METHODS: (A) THE MONTHLY RETIRED PAY * * *IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF THIS ACT, OR (B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD, BY SUCH MEMBER OR FORMER MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM: PROVIDED, THAT FOR THE PURPOSE OF THE COMPUTATION OF (B) ABOVE, FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR: * * *.'

SINCE SECTION 511 (B) PROVIDES THAT ONLY ACTIVE SERVICE MAY BE INCLUDED IN THE MULTIPLIER FACTOR, THERE IS NO BASIS FOR INCLUDING YOUR INACTIVE RETIRED SERVICE IN COMPUTING YOUR FACTOR UNDER THAT SECTION. IT FOLLOWS THAT THE CONCLUSION REACHED IN THE SETTLEMENT OF AUGUST 31, 1959, THAT YOU WERE DUE NO ADDITIONAL AMOUNT OF RETIRED PAY, WAS CORRECT AND IS SUSTAINED.