B-141995, MAR. 9, 1960

B-141995: Mar 9, 1960

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 27 AND JANUARY 28. WHEREIN WE HELD THAT THE CLAIMANTS WERE NOT ENTITLED BY REASON OF ACTIVE DUTY PERFORMED BY THEM AFTER TRANSFER TO THE FLEET NAVAL RESERVE WITH LESS THAN 16 YEARS' SERVICE. WAS TRANSFERRED TO THE FLEET NAVAL RESERVE PURSUANT TO PROVISIONS OF THE ACT OF JULY 1. WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON DECEMBER 28. 120 C.CLS. 501) WAS DENIED BY SETTLEMENT DATED MARCH 15. THE DISALLOWANCE WAS SUSTAINED ON REVIEW BY DECISION B-130313. IT WAS APPARENT THAT THE SANDERS CASE GAVE NO CONSIDERATION TO A STATE OF FACTS SUCH AS IS HERE INVOLVED AND THAT THE CONCLUSIONS REACHED IN THAT CASE COULD NOT BE ACCEPTED AS AUTHORITY FOR THE VIEW THAT THE MEMBER'S TOTAL ACTIVE SERVICE PRIOR AND SUBSEQUENT TO TRANSFER.

B-141995, MAR. 9, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 27 AND JANUARY 28, 1960, WRITTEN ON BEHALF OF ROY BAXTER ALEXANDER, ALFRED T. A. BONNER, CHARLES CLAYTON BRENNER, JOHN JAMES DANIELS, FRANK T. HALLMANN, PETER JAMES HUNT, MARCIA W. KERSHAW, DESIGNATED BENEFICIARY OF JOHN C. KERSHAW, DECEASED, CHARLES MCDONALD, MONTE CRISTO MCLAREN, THOMAS R. PACKER, JR., ONE OF THE HEIRS OF THE ESTATE OF THOMAS R. PACKER, SR., DECEASED, GEORGE H. ST. CLAIR, LOUIS NELSON SHANK, WILLIAM J. M. SPROUSE AND JOHANNES SVEE.

SAID LETTER REQUESTED THAT WE REVIEW OUR SETTLEMENTS OF VARIOUS DATES IN THE ABOVE CASES, WHEREIN WE HELD THAT THE CLAIMANTS WERE NOT ENTITLED BY REASON OF ACTIVE DUTY PERFORMED BY THEM AFTER TRANSFER TO THE FLEET NAVAL RESERVE WITH LESS THAN 16 YEARS' SERVICE, TO THE DIFFERENCE BETWEEN RETAINER OR RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED ON THE ONE THIRD PAY RATE FORMULA. EACH OF YOUR LETTERS CITES THE RECENT DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF MOJICA, ET AL. V. UNITED STATES, C.CLS.NO. 264-52 (SADIE L. SENST AND PEGGY MAE WILSON, BENEFICIARIES OF THE ESTATE OF WALTER CARR SENST, DECEASED, PLAINTIFF NO. 60), DECIDED JANUARY 20, 1960, AS FURNISHING AUTHORITY FOR ALLOWANCE OF YOUR CLIENTS' CLAIMS.

EACH OF THE CLAIMANTS, WITH THE EXCEPTION OF LOUIS NELSON SHANK, WAS TRANSFERRED TO THE FLEET NAVAL RESERVE PURSUANT TO PROVISIONS OF THE ACT OF JULY 1, 1922, 42 STAT. 786, 799. MR. SHANK, HOWEVER, WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON DECEMBER 28, 1918, UNDER PERTINENT PROVISION OF THE ACT OF AUGUST 29, 1916, 39 STAT. 589. WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, THAT STATUTE MADE NO PROVISION FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER LESS THAN 16 YEARS' NAVAL SERVICE.

MR. SHANK'S CLAIM FOR SANDERS TYPE BENEFITS (SANDERS V. UNITED STATES, 120 C.CLS. 501) WAS DENIED BY SETTLEMENT DATED MARCH 15, 1956. THE DISALLOWANCE WAS SUSTAINED ON REVIEW BY DECISION B-130313, DATED APRIL 5, 1957, FOR THE REASON THAT WHILE WE WOULD NOT QUESTION HIS MEMBERSHIP IN THE FLEET NAVAL RESERVE DESPITE THE FACT THAT, FOR TRANSFER PURPOSE, HE HAD BEEN CREDITED WITH A PERIOD OF UNAUTHORIZED ABSENCE OF FOUR MONTHS AND ONE DAY FROM DECEMBER 6, 1907, TO APRIL 4, 1908, IT WAS APPARENT THAT THE SANDERS CASE GAVE NO CONSIDERATION TO A STATE OF FACTS SUCH AS IS HERE INVOLVED AND THAT THE CONCLUSIONS REACHED IN THAT CASE COULD NOT BE ACCEPTED AS AUTHORITY FOR THE VIEW THAT THE MEMBER'S TOTAL ACTIVE SERVICE PRIOR AND SUBSEQUENT TO TRANSFER, CONSTITUTED SUFFICIENT SERVICE TO ENTITLE HIM TO RETAINER OR RETIRED PAY AT THE ONE-HALF OF BASE PAY RATE. WHILE IT APPEARS THAT YOU RECENTLY HAVE WITHDRAWN AN APPLICATION FOR CORRECTION OF MR. SHANK'S RECORD WHICH HAD BEEN FILED WITH THE BOARD FOR CORRECTION OF NAVAL RECORDS, FOR THE REASON THAT THE DEPARTMENT OF THE NAVY REGARDS HIM AS HAVING BEEN PROPERLY TRANSFERRED TO THE FLEET NAVAL RESERVE IN 1918, THAT POINT OF VIEW FURNISHES NO BASIS FOR A CONCLUSION THAT HIS LESS THAN 16 YEARS' ACTIVE SERVICE AT THAT TIME PLUS 3 YEARS, 7 MONTHS AND 1 DAY OF ACTIVE SERVICE ON AND AFTER FEBRUARY 20, 1942, ENTITLES HIM TO SANDERS CASE BENEFITS WHICH ARE PAYABLE TO MEN HAVING AT LEAST 19 YEARS AND 6 MONTHS OF SUCH SERVICE.

OUR REASONS FOR NOT FOLLOWING THE SENST DECISION AT THIS TIME IN THE SETTLEMENT OF SIMILAR CLAIMS ARE SET FORTH IN DECISION TO YOU OF EVEN DATE, B-141999, IN THE CASE OF WILLIAM BASTON, JR. ..END :