B-143580, MAR. 31, 1961

B-143580: Mar 31, 1961

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DEPARTMENT OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28. A DECISION IS REQUESTED AS TO WHETHER OR NOT SYARSE IS ENTITLED. "IF YOUR REPLY TO THE FOREGOING QUESTION IS IN THE NEGATIVE. IS SYARSE ENTITLED TO MAKE AN ELECTION TO RECEIVE PAY UNDER METHOD (1) OF SECTION 402 (D) OF PUBLIC LAW 351 AND RECEIVE RETIRED PAY BASED ON SUCH ELECTION FROM 1 DECEMBER 1959. THE DAY FOLLOWING THE DATE THROUGH WHICH CREDIT WAS EFFECTED BY THE GENERAL ACCOUNTING OFFICE? YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE DECISION OF SEPTEMBER 3. OF INACTIVE TIME ON THE RETIRED LIST OR IN THE FLEET RESERVE IN THE CASES OF CERTAIN RETIRED MEMBERS WAS AUTHORIZED IN THE COMPUTATION OF THEIR DISABILITY RETIRED PAY UNDER SECTIONS 411 AND 402 (D) OF THE CAREER COMPENSATION ACT OF 1949.

B-143580, MAR. 31, 1961

TO DISBURSING OFFICER, THROUGH COMPTROLLER OF THE NAVY, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1960, PRESENTING FOR DECISION, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-555, THE FOLLOWING QUESTIONS AS TO CORRECT COMPUTATION OF RETIRED PAY IN THE CASE OF BRUCE J. SYARSE, CHIEF YEOMAN, 174 59 59, U.S. NAVY, RETIRED:

"IN ACCORDANCE WITH REFERENCE (A), A DECISION IS REQUESTED AS TO WHETHER OR NOT SYARSE IS ENTITLED, UNDER YOUR DECISION B-131700 OF 3 SEPTEMBER 1959, AND SUBJECT TO THE ACT OF 9 OCTOBER 1940, AS AMENDED, 31 U.S.C. 71A, TO RETAINER AND RETIRED PAY FROM 16 SEPTEMBER 1944, BASED ON 29 YEARS 6 MONTHS AND 9 DAYS SERVICE, WHICH INCLUDES CREDIT FOR HIS INACTIVE SERVICE IN THE FLEET RESERVE.

"IF YOUR REPLY TO THE FOREGOING QUESTION IS IN THE NEGATIVE, IS SYARSE ENTITLED TO MAKE AN ELECTION TO RECEIVE PAY UNDER METHOD (1) OF SECTION 402 (D) OF PUBLIC LAW 351 AND RECEIVE RETIRED PAY BASED ON SUCH ELECTION FROM 1 DECEMBER 1959, THE DAY FOLLOWING THE DATE THROUGH WHICH CREDIT WAS EFFECTED BY THE GENERAL ACCOUNTING OFFICE?

WITH RESPECT TO YOUR FIRST QUESTION, YOUR ATTENTION IS DIRECTED TO THE FACT THAT THE DECISION OF SEPTEMBER 3, 1959, CITED BY YOU, RELATED SOLELY TO RETIRED PAY ACCRUING AFTER OCTOBER 1, 1949, IT BEING STATED THAT THE COUNTING, FOR BASIC PAY PURPOSES, OF INACTIVE TIME ON THE RETIRED LIST OR IN THE FLEET RESERVE IN THE CASES OF CERTAIN RETIRED MEMBERS WAS AUTHORIZED IN THE COMPUTATION OF THEIR DISABILITY RETIRED PAY UNDER SECTIONS 411 AND 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 280, 272 (D) (1952 ED.). THAT DECISION FURNISHES NO BASIS FOR THE COUNTING OF INACTIVE TIME FOR THE PURPOSE OF INCREASING RETAINER OR RETIRED PAY FOR PERIODS PRIOR TO OCTOBER 1, 1949. IT LONG HAS BEEN HELD THAT INACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST MAY NOT BE COUNTED IN DETERMINING THE PERMANENT ADDITIONS TO WHICH ENTITLED IN THE COMPUTATION OF RETAINER OR RETIRED PAY AT THE TIME OF RELEASE FROM ACTIVE DUTY (26 COMP. GEN. 804, 810, ANSWER TO QUESTION (F) ( AND WE KNOW OF NO COURT DECISION WHICH HAS QUESTIONED THE CORRECTNESS OF THAT CONCLUSION. THE COURT STATED IN THE SELIGA CASE, 137 CT.CL. 710, THAT THE PLAINTIFF (A FLEET RESERVIST WHO HAD BEEN PLACED ON THE RETIRED LIST) DID NOT QUESTION THE RETIRED PAY HE HAD RECEIVED PRIOR TO OCTOBER 1, 1949. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR ALTERNATIVE QUESTION DEALS WITH THE MATTER OF AFFORDING MR. SYARSE AT THIS TIME AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTIONS 411 AND 402 (D) OF THE CAREER COMPENSATION ACT. THE RECORD SHOWS THAT HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST ON OCTOBER 1, 1944, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ON ACTIVE DUTY PURSUANT TO THE PROVISIONS OF SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 854E (1952 ED). HIS PERCENTAGE OF DISABILITY IS SHOWN AS ZERO.

A LETTER TO MR. SYARSE FROM THE BUREAU OF NAVAL PERSONNEL DATED JANUARY 22, 1952, INDICATES THAT HE ATTEMPTED TO MAKE A SECTION 411 ELECTION BUT THAT HIS APPLICATION WAS DENIED ON THE MISTAKEN BELIEF THAT HIS DISABILITY WAS NOT INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY. HE SHOULD NOT BE DEPRIVED OF THE BENEFITS OF SUCH ELECTION, SINCE THE DENIAL WAS CLEARLY IMPROPER. THE SETTLEMENT VOUCHER OF OUR CLAIMS DIVISION DATED MAY 9, 1960, PROPERLY ALLOWED MR. SYARSE THE BENEFITS OF SUCH ELECTION FOR THE PERIOD OCTOBER 1, 1949, TO NOVEMBER 30, 1959, INCLUSIVE, BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE SELIGA CASE, INCLUDING BASIC PAY CREDIT FOR INACTIVE TIME IN THE FLEET RESERVE PRIOR TO RETIREMENT. HIS RETIRED PAY SUBSEQUENT TO NOVEMBER 30, 1959, SHOULD BE COMPUTED ON THE SAME BASIS WITHOUT ANY FURTHER ACTION ON HIS PART.