B-146458, OCT. 5, 1961

B-146458: Oct 5, 1961

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FREEMAN: REFERENCE IS MADE TO YOUR LETTER OF MAY 22. YOU ALSO REQUESTED A REVIEW OF YOUR RECORD FOR A DETERMINATION WHETHER THERE ARE FURTHER MONEYS DUE YOU BY REASON OF CONSTRUCTIVE SERVICE CREDIT FOR SHORT-TERM ENLISTMENTS. SUCH REQUEST WILL BE REGARDED AS A REQUEST FOR REVIEW OF SETTLEMENT OF JANUARY 27. AFTER SEVERAL SUCCESSIVE REENLISTMENTS YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 18. YOU WERE RECALLED TO ACTIVE DUTY ON JUNE 2. WERE RELEASED THEREFROM ON NOVEMBER 6. DETERMINED THAT THE HIGHEST FEDERALLY RECOGNIZED GRADE SATISFACTORILY HELD BY YOU WAS THAT OF CHIEF STEWARD (ACTING APPOINTMENT). INFORMED YOU THAT YOU WERE ENTITLED TO A CREDIT OF THE DIFFERENCE BETWEEN THE RATES OF RETIRED PAY.

B-146458, OCT. 5, 1961

TO MR. JOHN A. FREEMAN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1961, ADDRESSED TO THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, WASHINGTON 25, D.C., IN WHICH YOU CLAIMED THE AMOUNT OF $28, REPRESENTING ADDITIONAL RETIRED PAY BELIEVED TO BE DUE YOU AS A RETIRED FORMER MEMBER OF THE FLEET RESERVE. YOU ALSO REQUESTED A REVIEW OF YOUR RECORD FOR A DETERMINATION WHETHER THERE ARE FURTHER MONEYS DUE YOU BY REASON OF CONSTRUCTIVE SERVICE CREDIT FOR SHORT-TERM ENLISTMENTS. SUCH REQUEST WILL BE REGARDED AS A REQUEST FOR REVIEW OF SETTLEMENT OF JANUARY 27, 1958, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY UNDER THE SANDERS CASE, 120 CT.CL. 501.

THE RECORD OF YOUR NAVAL SERVICE FURNISHED BY THE DEPARTMENT OF THE NAVY SHOWS THAT YOU ENLISTED IN THE NAVY ON AUGUST 5, 1909, AND AFTER SEVERAL SUCCESSIVE REENLISTMENTS YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 18, 1922, WITH LESS THAN 16 YEARS' SERVICE APPARENTLY UNDER THE ACT OF JULY 1, 1922, 42 STAT. 799, 800. SUBSEQUENT TO YOUR RETIREMENT ON JULY 1, 1939, YOU WERE RECALLED TO ACTIVE DUTY ON JUNE 2, 1941, AND WERE RELEASED THEREFROM ON NOVEMBER 6, 1944. ON JANUARY 29, 1953, THE SECRETARY OF THE NAVY, PURSUANT TO SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, DETERMINED THAT THE HIGHEST FEDERALLY RECOGNIZED GRADE SATISFACTORILY HELD BY YOU WAS THAT OF CHIEF STEWARD (ACTING APPOINTMENT).

IT APPEARS FROM THE COPIES OF CORRESPONDENCE ENCLOSED WITH YOUR LETTER THAT THE UNITED STATES NAVY FINANCE CENTER, CLEVELAND, OHIO, BY LETTER OF MAY 4, 1961, INFORMED YOU THAT YOU WERE ENTITLED TO A CREDIT OF THE DIFFERENCE BETWEEN THE RATES OF RETIRED PAY, BASED ON THE ONE THIRD FORMULA, OF $87.50 AND $78.75 FOR THE PERIOD JUNE 25 TO SEPTEMBER 30, 1949, OR A TOTAL OF $28. WHILE THERE IS NOTHING IN THAT LETTER WHICH SHOWS WHY YOU ARE ENTITLED TO THAT AMOUNT, IT IS NOT NECESSARY TO CONSIDER THAT MATTER SINCE THERE IS FOR APPLICATION IN CONNECTION WITH THE CONSIDERATION OF SUCH CLAIM THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. SECTION 1 OF THAT ACT PROVIDES AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

YOUR LETTER OF MAY 22, 1961, WAS RECEIVED IN THIS OFFICE ON JUNE 23, 1961, A DATE MORE THAN 10 YEARS AFTER JUNE 25, 1949, WHEN YOUR RIGHT, IF ANY, TO THE ADDITIONAL RETIRED PAY FIRST ACCRUED, AND SEPTEMBER 30, 1949, THE LAST DAY OF THE PERIOD COVERED BY THE CLAIM. UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, WE ARE PRECLUDED FROM CONSIDERING YOUR CLAIM AND IT MAY BE POINTED OUT, IN THIS CONNECTION, THAT SUCH ACT DOES NOT PERMIT OF ANY EXCEPTIONS--- OTHER THAN AS THERE PROVIDED--- NOR DOES IT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE.

CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY WHICH YOU BELIEVE MAY BE DUE BY REASON OF CONSTRUCTIVE SERVICE CREDIT FOR SHORT-TERM ENLISTMENTS, YOU ARE ADVISED THAT UNDER CURRENT DECISIONS OF THE COURT OF CLAIMS AND THIS OFFICE (SEE 39 COMP. GEN. 720) CONSTRUCTIVE SERVICE OF 16 YEARS IS CREDITABLE TO YOU AS OF THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL RESERVE ON JULY 18, 1922, FOR THE PURPOSE OF CLAIMING THE BENEFITS OF THE RULE OF THE SANDERS CASE. HOWEVER, AT LEAST 19 YEARS AND 6 MONTHS' SERVICE IS NECESSARY FOR ENTITLEMENT TO SUCH BENEFITS. SINCE YOU SERVED ON ACTIVE DUTY ONLY 3 YEARS, 5 MONTHS AND 5 DAYS AFTER YOU WERE RECALLED TO ACTIVE DUTY IN 1941, YOU ARE NOT ENTITLED TO INCREASED RETIRED PAY UNDER THE SANDERS CASE. WE KNOW OF NO OTHER AUTHORITY UNDER WHICH THE CONSTRUCTIVE SERVICE PROPERLY CREDITABLE TO YOU WOULD ENTITLE YOU TO INCREASED RETIRED PAY.