B-144446, DECEMBER 7, 1960, 40 COMP. GEN. 343

B-144446, DECEMBER 7, 1960, 40 COMP. GEN. 343

MILITARY PERSONNEL - RETIRED PAY - SERVICE CREDITS - INACTIVE FLEET RESERVE SERVICE AN ENLISTED NAVY MEMBER WHO WAS RECALLED TO ACTIVE DUTY AFTER HAVING BEEN TRANSFERRED TO THE FLEET RESERVE AND WHO WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST AFTER OCTOBER 1, 1949--- THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- UNDER AUTHORITY OF SECTION 402 (B) OF THAT ACT IS REGARDED AS A MEMBER RETIRED BECAUSE OF A DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AT TIME WHEN HE WAS ENTITLED TO HAVE COUNTED INACTIVE SERVICE IN THE FLEET RESERVE PRECEDING THE DATE OF HIS RETIREMENT IN COMPUTATION OF ACTIVE DUTY PAY IN ACCORDANCE WITH SELIGA V. UNITED STATES, 137 CT. CL. 710; THEREFORE, THE MEMBER'S DISABILITY RETIRED PAY IS PROPERLY COMPUTED ON THE BASIS OF THE MONTHLY ACTIVE DUTY BASIC PAY OF THE GRADE AT THE TIME OF RETIREMENT REFLECTING CREDIT FOR INACTIVE SERVICE IN THE FLEET RESERVE. THE SELIGA CASE, 137 CT. CL. 710, WHICH HELD, IN COMMON WITH THE BAILEY AND TRAVIS CASES, 134 CT. CL. 471 AND 137 ID. 148, THAT, IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR COMPUTATION OF RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, THERE SHOULD BE INCLUDED ALL ACTIVE AND INACTIVE SERVICE CREDITABLE FOR ACTIVE DUTY PAY AT TIME OF RETIREMENT WAS NOT A ,RE-RETIREMENT" CASE SINCE THE PLAINTIFF WAS NOT A COMMISSIONED OFFICER AND WAS RETIRED ONLY ONCE; THEREFORE, THE BASIC ISSUE IN ALL CASES COMING WITHIN THE SCOPE OF THE SELIGA CASE IS NOT THAT OF A "RE-RETIREMENT" BUT WHETHER THE MEMBER CONCERNED WAS RETIRED BECAUSE OF DISABILITY INCURRED WHILE ON ACTIVE DUTY AT A TIME WHEN HE WAS ENTITLED TO HAVE COUNTED INACTIVE SERVICE IN THE FLEET RESERVE IN COMPUTATION OF HIS ACTIVE DUTY PAY (AFTER MAY 31, 1942) SO THAT THE MEMBER'S DISABILITY RETIRED PAY MAY BE COMPUTED UNDER SECTION 402 (D), ON THE BASIS OF MONTHLY ACTIVE DUTY BASIC PAY AT THE TIME OF RETIREMENT INCLUDING CREDIT FOR INACTIVE SERVICE IN THE FLEET RESERVE.

TO E. C. DODD, DEPARTMENT OF THE NAVY, DECEMBER 17, 1960:

YOUR LETTER OF NOVEMBER 3, 1960, AND ENDORSEMENTS, PRESENTS FOR ADVANCE DECISION, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NUMBER DO-N-543, THE QUESTION WHETHER THOMAS A. GARLAND, 257 92 11, U.S. NAVY, RETIRED, IS ENTITLED TO COUNT THE PERIOD OF HIS INACTIVE SERVICE IN THE FLEET RESERVE IN THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM SEPTEMBER 14, 1951.

IT IS STATED THAT GARLAND WAS TRANSFERRED TO THE FLEET RESERVE ON MARCH 25, 1948, WITH 19 YEARS 6 MONTHS AND 5 DAYS' ACTIVE SERVICE. HE WAS RECALLED TO ACTIVE DUTY OCTOBER 18, 1950, AND HE SERVED THROUGH AUGUST 31, 1951, A PERIOD OF 10 MONTHS AND 13 DAYS. THIS INCREASED HIS TOTAL ACTIVE SERVICE TO 20 YEARS 4 MONTHS AND 18 DAYS AND COMBINED WITH THE PERIOD OF HIS INACTIVE SERVICE IN THE FLEET RESERVE ( MARCH 26, 1948, TO OCTOBER 17, 1950, INCLUSIVE, 2 YEARS 6 MONTHS AND 22 DAYS), MADE A TOTAL OF 22 YEARS 11 MONTHS AND 10 DAYS' CREDITABLE SERVICE IN COMPUTING HIS ACTIVE DUTY BASIC PAY.

ON SEPTEMBER 1, 1951, HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 30 PERCENT AS PROVIDED IN SECTION 402 (B), CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, 37 U.S.C. 272 (B), 1952 USED. GARLAND'S ACTIVE DUTY PAY STATUS APPEARS TO HAVE CONTINUED THROUGH SEPTEMBER 13, 1951 (ADJUSTED AS TO THE PERIOD SEPTEMBER 1 TO 13, 1951, INCLUSIVE, IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT DATED MAY 24, 1954) AND YOU STATE THAT HIS RETIRED PAY HAS BEEN COMPUTED EFFECTIVE FROM SEPTEMBER 14, 1951, UNDER METHOD (1), SECTION 402 (D) OF THE 1949 LAW, 63 STAT. 818, 37 U.S.C. 272 (D), 1952 USED., BASED ON 20 YEARS FOR PERCENTAGE PURPOSES (20 YEARS 4 MONTHS AND 18 DAYS OF ACTIVE SERVICE AS 20 YEARS) AND OVER 18, BUT NOT OVER 22 YEARS, FOR MONTHLY BASIC PAY.

IT WAS CONCLUDED IN DECISION OF SEPTEMBER 3, 1959, 39 COMP. GEN. 152, TO WHICH YOU MAKE REFERENCE, THAT THE "RE-RETIREMENT" CONCEPT AS APPLIED TO RETIRED MEMBERS OF THE UNIFORMED SERVICES BY THE COURT OF CLAIMS IN BAILEY V. UNITED STATES (134 CT. CL. 471), TRAVIS V. UNITED STATES (137 CT. CL. 148) AND SELIGA V. UNITED STATES (137 CT. CL. 710), WOULD BE FOLLOWED BY THIS OFFICE IN OTHER SIMILAR CASES INVOLVING "RE RETIREMENT" BEFORE OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. HOWEVER, AS POINTED OUT IN THE CONCLUDING STATEMENT, THAT DECISION DID NOT RELATE TO CASES WHERE THE "RE RETIREMENT" OCCURRED ON OR AFTER OCTOBER 1, 1949, SINCE THAT ISSUE WAS THEN PENDING BEFORE THE COURT OF CLAIMS IN THE CASE OF WHELAN V. UNITED STATES, CT. CL. NO. 469-57, DECIDED SEPTEMBER 9, 1960. IN THAT CONNECTION, YOU STATE

THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, HAS BEEN ALLOWING CLAIMS OF MEMBERS WHO, LIKE GARLAND, WERE RE-RETIRED AFTER 1 OCTOBER 1949 AND HAD PRIOR INACTIVE SERVICE IN THE FLEET RESERVE.

YOU REFER TO THE CASE OF ELLIS H. ARNOLD, 328 18 77, GENERAL ACCOUNTING OFFICE CLAIM NO. Z-670654, AS ONE SO SETTLED.

THE BAILEY AND TRAVIS CASES WERE BASED ON THE "RE-RETIREMENT" CONCEPT ADOPTED BY THE COURT OF CALIMS WITH RESPECT TO COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES COMING WITHIN THE SCOPE OF THE FOURTH PARAGRAPH IN SECTION 15, PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, 37 U.S.C. 115. THE "RE-RETIREMENT" CONCEPT, TOGETHER WITH THE INTERPRETATION PLACED BY THE COURT UPON THE BASIC PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW, SERVED TO ENTITLE SUCH OFFICERS (BY VIRTUE OF THEIR ELECTION UNDER AUTHORITY OF SECTION 411 OF THE ACT, 63 STAT. 823) TO COMPUTE THEIR RETIRED PAY ON THE BASIS OF THEIR TOTAL SERVICE, ACTIVE AND INACTIVE, THAT IS, ON THE BASIS OF THE MONTHLY BASIC PAY OF THE RANK HELD BY THEM AT THE TIME OF THEIR "RE-RETIREMENT.'

SELIGA, HOWEVER, WAS NOT A "RE-RETIREMENT" CASE SINCE HE WAS NOT A COMMISSIONED OFFICER AND SINCE HE WAS RETIRED ONLY ONCE. THE INACTIVE SERVICE HE SOUGHT TO INCLUDE IN THE COMPUTATION OF HIS RETIRED PAY UNDER SECTION 402 (D) OF THE 1949 LAW WAS HIS INACTIVE SERVICE IN THE FLEET RESERVE PRIOR TO THE DATE HE WAS PLACED ON THE RETIRED LIST OF THE NAVY.

IT WILL BE SEEN THAT THE ONLY POINT IN COMMON IN THE BAILEY, TRAVIS, AND SELIGA CASES IS THE INTERPRETATION PLACED BY THE COURT ON THE BASIC PROVISIONS OF SECTION 402 (D), NAMELY, THAT IN DETERMINING THE RATE OF MONTHLY BASIC PAY FOR THE PURPOSE OF COMPUTING RETIRED PAY, AS PRESCRIBED IN SECTION 402 (D), THERE SHOULD BE INCLUDED ALL ACTIVE AND INACTIVE SERVICE CREDITABLE FOR ACTIVE DUTY PAY AT THE TIME OF RETIREMENT. THAT WAS THE RULE APPLIED IN THE SELIGA DECISION, THE COURT STATING, IN THAT RESPECT,

ACCORDINGLY, WE HOLD, AS WE DID IN THE BAILEY CASE, THAT IF PLAINTIFF ( SELIGA) IS ENTITLED TO HAVE HIS DISABILITY RETIRED PAY COMPUTED UNDER THE "PERCENTAGE OF DISABILITY" METHOD (METHOD (2) ( PRESCRIBED IN SECTION 402 (D) OF TITLE IV OF THE 1949 ACT, THE BASIC PAY FACTOR TO BE USED IN THAT COMPUTATION MUST INCLUDE CREDIT FOR PLAINTIFF'S MORE THAN 8 YEARS' (INACTIVE) SERVICE IN THE FLEET RESERVE AS WELL AS HIS MORE THAN 21 YEARS OF ACTIVE SERVICE.

THE SAME BASIC PAY FACTOR WOULD BE USED IN A COMPUTATION OF RETIRED PAY UNDER METHOD (1) OF SECTION 402 (D) BASED ON YEARS OF ACTIVE SERVICE. THEREFORE, IN ALL CASES COMING WITHIN THE SCOPE OF THE SELIGA DECISION, THE BASIC ISSUE PRESENTED IS NOT THAT OF A "RE-RETIREMENT," BUT WHETHER THE MEMBER CONCERNED WAS RETIRED BECAUSE OF DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AT A TIME WHEN HE WAS ENTITLED TO COUNT INACTIVE SERVICE IN THE FLEET RESERVE IN COMPUTING HIS ACTIVE DUTY PAY (AFTER MAY 31, 1942). IF SO, AND HIS DISABILITY RETIRED PAY IS COMPUTED UNDER SECTION 402 (D), THE BASIC PAY FACTOR TO BE USED INCLUDES ALL ACTIVE AND INACTIVE SERVICE (INCLUDING INACTIVE SERVICE IN THE FLEET RESERVE) CREDITABLE IN THE COMPUTATION OF HIS ACTIVE-DUTY PAY AT THE TIME OF HIS RETIREMENT.

CONSEQUENTLY, ELLIS H. ARNOLD (REFERRED TO IN YOUR LETTER OF NOVEMBER 3, 1960) WHO WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE DECEMBER 1, 1952, AND TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST AS OF APRIL 1, 1956 (AS PROVIDED IN SECTION 402 (B) AND (E) OF THE 1949 LAW) FOR DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AS A MEMBER OF THE FLEET RESERVE WAS ALLOWED, UNDER THE RULE OF THE SELIGA DECISION, INCREASED DISABILITY RETIRED PAY IN GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION CERTIFICATION, DATED AUGUST 11, 1960, BASED ON THE RATE OF HIS MONTHLY ACTIVE DUTY BASIC PAY AT THE TIME OF HIS DISABILITY RETIREMENT, DECEMBER 1, 1952. THIS ACTION REFLECTED CREDIT IN THE COMPUTATION OF HIS RETIRED PAY OF HIS PRIOR INACTIVE SERVICE IN THE FLEET RESERVE.

SIMILAR ACTION WAS TAKEN IN GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION CERTIFICATION, DATED APRIL 11, 1960, IN THE CASE OF COLUMBUS HENRY CARLIN, 273 96 11, U.S. NAVY, RETIRED. CARLIN WAS TRANSFERRED TO THE FLEET RESERVE ON APRIL 15, 1945, AND HE SERVED ON ACTIVE DUTY FROM APRIL 16, 1945, TO NOVEMBER 1, 1945, INCLUSIVE, AND ALSO FROM ABOUT FEBRUARY 26, 1951, TO APRIL 30, 1952, INCLUSIVE. HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE MAY 1, 1952, PRESUMABLY UNDER AUTHORITY OF TITLE IV OF THE 1949 LAW, BY REASON OF DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY. UNDER THE RULE OF THE SELIGA DECISION, HE WAS NOT ALLOWED INCREASED RETIRED PAY AS PRESCRIBED IN SECTION 402 (D) OF THE ACT INCLUDING CREDIT FOR HIS INACTIVE SERVICE IN THE FLEET RESERVE PRIOR TO THE DATE OF HIS RETIREMENT.

THE SAME RULE, BASED ON THE HOLDING OF THE SELIGA DECISION, IS FOR APPLICATION IN THE CASE OF THOMAS A. GARLAND, WHO IS SHOWN BY THE RECORD AS ENTITLED TO COMPUTE HIS DISABILITY RETIRED PAY EFFECTIVE FROM SEPTEMBER 14, 1951, UNDER THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW BY REASON OF HIS PLACEMENT ON THE PERMANENT DISABILITY RETIRED LIST UNDER AUTHORITY OF SECTION 402 (B) OF THAT ACT. ACCORDINGLY, GARLAND'S DISABILITY RETIRED PAY, EFFECTIVE FROM SEPTEMBER 14, 1951, PROPERLY IS TO BE COMPUTED ON THE BASIS OF THE MONTHLY ACTIVE DUTY BASIC PAY OF HIS GRADE AT THE TIME OF HIS RETIREMENT REFLECTING CREDIT FOR THE PERIOD OF HIS INACTIVE SERVICE IN THE FLEET RESERVE PRECEDING THE DATE OF HIS RETIREMENT.