B-142207, APR. 7, 1960

B-142207, APR. 7, 1960

TO MR. FRANCIS MCCARTY:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE DEPARTMENT OF THE NAVY YOUR LETTER OF JANUARY 28, 1960, ADDRESSED TO THE U. S. NAVY FINANCE CENTER AT CLEVELAND, OHIO, ENCLOSING A COPY OF A CLAIM VOUCHER CERTIFIED BY OUR CLAIMS DIVISION UNDER DATE OF DECEMBER 8, 1959, TOGETHER WITH THE RELATED WITHHOLDING TAX FORM W-2.

YOUR CLAIM WAS SETTLED ON THE BASIS THAT YOU WERE RETIRED ON OCTOBER 2, 1958, WHEREAS IT WAS STATED IN YOUR LETTER, AMONG OTHER THINGS, THAT ACCORDING TO THE RECORDS OF THE NAVAL AMPHIBIOUS BASE, LITTLE CREEK, NORFOLK, VIRGINIA, YOU WERE NOT OFFICIALLY RETIRED UNTIL MARCH 1, 1959. YOU REQUESTED, IN EFFECT, TO BE ADVISED AS TO THE CORRECTNESS OF THE ADMINISTRATIVE ACTION TAKEN IN YOUR CASE.

OUR RECORDS SHOW THAT BY LETTER OF AUGUST 7, 1958, THE BUREAU OF NAVAL PERSONNEL ACKNOWLEDGED RECEIPT OF YOUR APPLICATION FOR RETIREMENT DATED JULY 31, 1958, AND ADVISED YOU THAT THE SAME WOULD BE FORWARDED TO THE SECRETARY OF THE NAVY FOR APPROVAL TO BE EFFECTIVE OCTOBER 1, 1958. YOU WERE FURTHER ADVISED THAT YOUR RETIREMENT REQUEST COULD NOT BE FORWARDED TO THE SECRETARY OF THE NAVY FOR APPROVAL UNTIL A REPORT OF PHYSICAL EXAMINATION WAS RECEIVED. BY ORDERS DATED OCTOBER 1, 1958, ISSUED BY THE COMMANDING OFFICER, NAVAL AMPHIBIOUS BASE, LITTLE CREEK, NORFOLK, YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO INACTIVE DUTY ON THE RETIRED LIST OF THE UNITED STATES NAVY, IT BEING SHOWN ON SUCH ORDERS THAT ON SEPTEMBER 28, 1958, YOU HAD BEEN EXAMINED AND FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY. ON THE BASIS OF SUCH RECORD YOUR RETIRED PAY ACCOUNT WAS ESTABLISHED EFFECTIVE OCTOBER 2, 1958, AND YOU WERE PAID RETIRED PAY AT THE RATE OF $262.50 PER MONTH THROUGH DECEMBER 31, 1958, AMOUNTING TO $778.75.

THERE APPEARS TO HAVE BEEN SOME CONFUSION OR MISUNDERSTANDING BY NAVAL PERSONNEL AS TO THE ACTION TAKEN IN CONNECTION WITH YOUR RETIREMENT SINCE THE BUREAU OF NAVAL PERSONNEL SUBSEQUENTLY ADVISED THE COMMANDING OFFICER OF THE NAVAL AMPHIBIOUS BASE AT LITTLE CREEK TO REQUEST YOUR RETURN TO THE BASE, COMPLETE YOUR PHYSICAL TEST FOR RETIREMENT SINCE THE BUREAU OF NAVAL PERSONNEL SUBSEQUENTLY ADVISED THE COMMANDING OFFICER OF THE NAVAL AMPHIBIOUS BASE AT LITTLE CREEK TO REQUEST YOUR RETURN TO THE/BASE, COMPLETE YOUR PHYSICAL TEST FOR RETIREMENT AND TO RESUME YOUR DUTIES "UNTIL RETIRED.' THAT ACTION APPEARS TO HAVE BEEN ERRONEOUS SINCE THE RECORD SHOWS THAT YOU WERE EXAMINED UNDER DATE OF SEPTEMBER 28, 1958, AND FOUND PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY. HOWEVER, BY LETTER OF FEBRUARY 18, 1959, THE BUREAU OF NAVAL PERSONNEL ADVISED YOU THAT YOUR APPLICATION FOR TRANSFER TO THE RETIRED LIST HAD BEEN APPROVED, EFFECTIVE MARCH 1, 1959.

THE RECORD INDICATES FURTHER THAT YOU REPORTED FOR ACTIVE DUTY ON FEBRUARY 4, 1959, AND REMAINED ON SUCH DUTY THROUGH FEBRUARY 28, 1959. THE U. S. NAVY FINANCE CENTER AT CLEVELAND, OHIO, REPORTS THAT CLASS "N" ALLOTMENT AT THE RATE OF $7.60 PER MONTH WAS PAID DURING THE PERIOD OCTOBER 1958 THROUGH FEBRUARY 1959 FOR A TOTAL OF $38, AND THAT CLASS "Q" ALLOTMENT AT THE RATE OF $157.10 PER MONTH WAS PAID DURING THE SAME PERIOD FOR A TOTAL OF $785.50. THERE WAS NO CORRESPONDING DEDUCTIONS FROM YOUR PAY.

IN DECISION DATED DECEMBER 19, 1956, B-129742, WE HELD, REFERRING TO 32 COMP. GEN. 558, 559, THAT IF A MEMBER IS LEGALLY RETIRED HIS CHANGE OF STATUS BECOMES AN ACCOMPLISHED FACT AND CANNOT BE UNDONE RETROACTIVELY. CF. 39 COMP. GEN. 312. AS PREVIOUSLY STATED, THE RECORD SHOWS YOU WERE EFFECTIVELY RETIRED ON OCTOBER 1, 1958, SINCE YOU HAD MET THE REQUIREMENTS FOR RETIREMENT AND THE NECESSARY ORDERS WERE ISSUED. THAT YOU ACCEPTED SUCH ORDERS AS EFFECTIVE IS SHOWN BY THE FACT THAT YOU PROCEEDED TO YOUR HOME AND APPARENTLY REMAINED THERE UNTIL YOUR RECALL TO ACTIVE DUTY ON FEBRUARY 4, 1959. IN OTHER WORDS, IT SEEMS CLEAR THAT FOR THE PERIOD FROM OCTOBER 2, 1958, THROUGH FEBRUARY 3, 1959, YOU WERE NOT IN AN ACTIVE DUTY STATUS AND ARE NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR SUCH PERIOD.

THERE ARE RETURNED HEREWITH THE ENCLOSURES TO YOUR LETTER OF JANUARY 28, AND YOU WILL NOTE FROM THE COPY OF THE CERTIFIED VOUCHER THAT YOU WERE CREDITED WITH RETIRED PAY FOR THE PERIOD JANUARY 1 THROUGH FEBRUARY 3, 1959, FOR A TOTAL OF $288.75, AND WITH ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FEBRUARY 4 THROUGH FEBRUARY 28, 1959, FOR A TOTAL OF $390.87--- TOTAL AMOUNT OF $679.62. THAT AMOUNT REPRESENTS THE TOTAL ALLOWABLE CREDITS IN YOUR ACCOUNT, IT BEING POINTED OUT IN THE VOUCHER THAT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES IS NOT AUTHORIZED FOR THE PERIOD OCTOBER 2, 1958, THROUGH FEBRUARY 3, 1959. COLLECTIONS WERE EFFECTED ON THE VOUCHER FOR SUMS AGGREGATING $563.06 AND ADDING THERETO THE TAXES WITHHELD IN AMOUNTS AGGREGATING $116.56, IT WILL BE SEEN THAT THE TOTAL COLLECTIONS WERE EQUAL TO THE CREDITS. THE STATED INDEBTEDNESS OF $260.44 REPRESENTS THE DIFFERENCE BETWEEN THE SUM OF $785.50, COVERING THE CLASS "Q" ALLOTMENT PAID DURING THE INDICATED PERIOD FROM OCTOBER 1958 THROUGH FEBRUARY 1959, AND THE AMOUNT OF $525.06 COLLECTED ON THE VOUCHER ON ACCOUNT OF THAT ALLOTMENT. IN ADDITION THE SUM OF $38 WAS COLLECTED TO COVER THE CLASS "N" ALLOTMENT FOR THE AFOREMENTIONED PERIOD. THE AMOUNT OF $260.44 SHOULD BE PROMPTLY REMITTED TO OUR OFFICE.