B-141999, MAR. 9, 1960

B-141999: Mar 9, 1960

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. THE CLAIM WAS DENIED FOR THE STATED REASON THAT SINCE MR. - HE WAS NOT QUALIFIED FOR RETIRED PAY COMPUTED ON THE SAME BASIS AS MEMBERS WHO ORIGINALLY TRANSFERRED TO THE FLEET RESERVE AFTER THE COMPLETION OF 20 OR MORE YEARS OF SERVICE. IT WAS HELD IN THAT CASE THAT MEN TRANSFERRED TO THE FLEET RESERVE PURSUANT TO THE PROVISION OF THE ACT OF JULY 1. WERE THEREBY GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBER COULD ADD HIS YEARS OF SUBSEQUENT ACTIVE SERVICE PURSUANT TO SECTION 208 OF THE ACT OF AUGUST 10. IT IS THE VIEW OF THIS OFFICE THAT THE ENTITLEMENT OF A FLEET RESERVIST TO INCREASED PAY UNDER THE SANDERS DECISION MUST BE DETERMINED ON THE BASIS OF WHETHER.

B-141999, MAR. 9, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1960, REQUESTING ON BEHALF OF YOUR CLIENT, MR. WILLIAM BASTON, JR., THAT WE REVIEW OUR SETTLEMENT DATED JANUARY 21, 1958, WHICH DISALLOWED HIS CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE CLAIM WAS DENIED FOR THE STATED REASON THAT SINCE MR. BASTON'S TOTAL NAVAL SERVICE FOR TRANSFER TO THE FLEET NAVAL RESERVE ON JULY 10, 1922, PLUS ACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER, DID NOT EQUAL OR EXCEED 19 YEARS, 6 MONTHS' SERVICE--- SEE SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993--- HE WAS NOT QUALIFIED FOR RETIRED PAY COMPUTED ON THE SAME BASIS AS MEMBERS WHO ORIGINALLY TRANSFERRED TO THE FLEET RESERVE AFTER THE COMPLETION OF 20 OR MORE YEARS OF SERVICE.

YOU CITE THE CASE OF PABLO 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 AUTHORITY FOR ALLOWANCE OF YOUR CLIENT'S CLAIM. IT WAS HELD IN THAT CASE THAT MEN TRANSFERRED TO THE FLEET RESERVE PURSUANT TO THE PROVISION OF THE ACT OF JULY 1, 1922, 42 STAT. 786, 799, WITH LESS THAN 16 YEARS' SERVICE, WERE THEREBY GRANTED CONSTRUCTIVE SERVICE OF 16 YEARS TO WHICH THE MEMBER COULD ADD HIS YEARS OF SUBSEQUENT ACTIVE SERVICE PURSUANT TO SECTION 208 OF THE ACT OF AUGUST 10, 1946, IN ORDER TO COMPUTE HIS RETIRED OR RETAINER PAY ON THE ONE-HALF BASE PAY FORMULA UNDER THE RULING OF THE COURT IN THE CASE OF SANDERS V. UNITED STATES, 120 C.CLS. 501. YOU ALSO CITE 14 COMP. GEN. 689, 691, AS HAVING SOME BEARING ON THE ,CLAIMANT'S ENTITLEMENT TO LONGEVITY PAY.'

IT IS THE VIEW OF THIS OFFICE THAT THE ENTITLEMENT OF A FLEET RESERVIST TO INCREASED PAY UNDER THE SANDERS DECISION MUST BE DETERMINED ON THE BASIS OF WHETHER, ON THE DATE OF HIS RELEASE FROM ACTIVE DUTY PERFORMED AFTER HIS TRANSFER TO THE FLEET RESERVE AS A 16 YEAR MAN, HE HAD TOTAL SERVICE WHICH WOULD HAVE ENTITLED HIM--- BUT FOR THE FACT THAT HE ALREADY WAS A TRANSFERRED MEMBER--- TO TRANSFER TO THE FLEET RESERVE ON THAT DAY UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, AS A 20 -YEAR MAN (A MINIMUM OF 19 YEARS, 6 MONTHS). SEE 37 COMP. GEN. 383, AND OUR DECISION TO YOU DATED JANUARY 29, 1958, B-134160, IN THE CASE OF GEORGE L. O-NEAL.

THE DECISION IN THE SENST CASE HAS NOT YET BECOME FINAL AND WE HAVE RECOMMENDED TO THE DEPARTMENT OF JUSTICE THAT THE COURT BE REQUESTED TO RECONSIDER THE MATTER. IN SUCH CIRCUMSTANCES, THE SENST DECISION WILL NOT BE FOLLOWED AT THIS TIME BY THIS OFFICE IN THE SETTLEMENT OF OTHER CLAIMS OF A SIMILAR NATURE.

YOUR REFERENCE TO THE CASE REPORTED IN 14 COMP. GEN. 689, IS NOT UNDERSTOOD. IT WAS RECOGNIZED IN THAT CASE, AS WELL AS IN THE PRESENT ONE, THAT THE CLAIMANTS WERE ENTITLED TO THE SAME RETAINER PAY AS MEN "TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT WITH OVER SIXTEEN YEARS' SERVICE" FOR TRANSFER PURPOSES, EVEN THOUGH THEY HAD LESS SERVICE AT THE TIME THEY WERE SO TRANSFERRED. THE CLAIMANT IN THE CASE CITED BY YOUR WAS ALLOWED NO CONSTRUCTIVE CREDIT FOR THE PURPOSE OF COMPUTING THE PERMANENT (LONGEVITY) ADDITIONS TO WHICH HE WAS ENTITLED. SECTION 10 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630, RELATING TO THE PAY OF ENLISTED MEN OF THE NAVY AND COAST GUARD, ENTITLED SUCH MEMBERS TO LONGEVITY INCREASES BASED ON ACTUAL SERVICE FOR THE PURPOSE OF DETERMINING PERMANENT ADDITIONS TO BASIC PAY. THE RATE OF INCREASE PROVIDED WAS TEN PERCENT UPON COMPLETION OF THE FIRST FOUR YEARS OF ENLISTED SERVICE AND AN ADDITIONAL INCREASE OF FIVE PERCENT FOR EACH FOUR YEARS' SERVICE THEREAFTER, THE TOTAL NOT TO EXCEED 25 PERCENT. ALTHOUGH THE CLAIMANT IN THAT CASE HAD OVER 15 YEARS' ACTIVE SERVICE AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE, HIS LONGEVITY INCREASE WAS LIMITED TO 20 PERCENT OF HIS BASE PAY. THE PROBLEM INVOLVED IN THE PRESENT CASE IS THE ADDITIONAL AMOUNT OF ACTIVE SERVICE WHICH MUST BE PERFORMED BY SUCH "SHORT 16-YEAR" FLEET RESERVISTS TO ENTITLE THEM TO INCREASED RETAINER OR RETIRED PAY UNDER THE SANDERS CASE. THERE APPEARS TO BE NOTHING IN THE CITED DECISION WHICH THROWS ANY LIGHT ON THAT PROBLEM.