B-147270, NOV. 15, 1961

B-147270: Nov 15, 1961

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7. YOUR REQUEST FOR RECONSIDERATION IS BASED ON YOUR CLAIM THAT CREDIT FOR CONSTRUCTIVE SERVICE IN SHORT-TERM ENLISTMENTS SHOULD HAVE BEEN GIVEN IN COMPUTING HIS RETIRED PAY UNDER THE CASES OF WAYNE J. PAGE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON MARCH 14. HE WAS TRANSFERRED TO THE RETIRED LIST. WHICH WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10. EVEN IF CONSTRUCTIVE SERVICE WERE CREDITABLE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT. IT IS OUR VIEW THAT CONSTRUCTIVE SERVICE CREDITABLE UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 FOR ALL PURPOSES OF THAT ACT DOES NOT AUTHORIZE CREDIT OF THAT SERVICE IN EITHER THE BASIC PAY FACTOR OR IN THE PERCENTAGE MULTIPLE FACTOR IN COMPUTING RETAINER AND RETIRED PAY UNDER FORMULA (B) OF SECTION 511.

B-147270, NOV. 15, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1961, REQUESTING RECONSIDERATION OF THE CLAIM OF MR. IRVING M. PAGE FOR INCREASED RETIRED PAY UNDER THE PROVISIONS OF THE CAREER INCENTIVE ACT OF 1955, WHICH CLAIM HAD BEEN DENIED BY OUR CLAIMS DIVISION ON THE GROUND THAT THE RETIRED PAY HE HAS RECEIVED, COMPUTED ON THE "SAVED PAY" FORMULA EXCEEDS THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AND THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18. YOUR REQUEST FOR RECONSIDERATION IS BASED ON YOUR CLAIM THAT CREDIT FOR CONSTRUCTIVE SERVICE IN SHORT-TERM ENLISTMENTS SHOULD HAVE BEEN GIVEN IN COMPUTING HIS RETIRED PAY UNDER THE CASES OF WAYNE J. JOHNSON V. UNITED STATES, CT.CL. NO. 217-56, DECIDED MAY 3, 1961; SHAIL FREDERICK WHITE V. UNITED STATES, 121 CT.CL. 1, AND OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110.

MR. PAGE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON MARCH 14, 1924, AND ON OCTOBER 1, 1937, HAVING COMPLETED 30 YEARS OF SERVICE, HE WAS TRANSFERRED TO THE RETIRED LIST. HE AGAIN SERVED ON ACTIVE DUTY FROM SEPTEMBER 1, 1942, TO OCTOBER 6, 1945. AS OF THE TIME OF HIS RELEASE FROM ACTIVE DUTY HE HAD BEEN CREDITED WITH A TOTAL OF 19 YEARS, 4 MONTHS AND 22 DAYS OF ACTUAL ACTIVE DUTY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, WHICH WAS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 994. THIS SERVICE, COUNTED AS 19 YEARS, 7 MONTHS AND 17 DAYS BY INCLUDING CREDIT FOR CONSTRUCTIVE TIME, WOULD ENTITLE MR. PAGE TO COMPUTE HIS RETIRED PAY UNDER THE PERCENTAGE FORMULA AT THE RATE OF 2 1/2 PERCENT MULTIPLIED BY 20 YEARS OF ACTIVE SERVICE, IN ACCORDANCE WITH THE PROVISIONS OF THE 1946 ACT AS INTERPRETED BY THE COURT OF CLAIMS IN THE CASE OF SHAIL FREDERICK WHITE V. UNITED STATES, SUPRA, AND 38 COMP. GEN. 110. HOWEVER, THE APPLICABLE RATE OF RETIRED PAY DETERMINED UNDER THIS METHOD WOULD BE LESS THAN THE RATE WHICH HE RECEIVED COMPUTED AT ONE-HALF BASE PAY PLUS FULL LONGEVITY, AND EVEN IF CONSTRUCTIVE SERVICE WERE CREDITABLE UNDER SECTION 202 OF THE CAREER COMPENSATION ACT, HIS RESULTING TOTAL SERVICE OF 19 YEARS, 7 MONTHS AND 17 DAYS WOULD NOT BE SUFFICIENT TO AUTHORIZE COMPUTATION OF HIS RETIRED PAY ON THE NEXT HIGHER BASIC PAY RATE, WHICH WOULD BE THAT PROVIDED FOR A MEMBER WITH OVER 22 YEARS' SERVICE.

FOR THE REASONS STATED IN OUR LETTER TO YOU OF OCTOBER 31, 1961, B 138416, COPY ENCLOSED, IT IS OUR VIEW THAT CONSTRUCTIVE SERVICE CREDITABLE UNDER SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 FOR ALL PURPOSES OF THAT ACT DOES NOT AUTHORIZE CREDIT OF THAT SERVICE IN EITHER THE BASIC PAY FACTOR OR IN THE PERCENTAGE MULTIPLE FACTOR IN COMPUTING RETAINER AND RETIRED PAY UNDER FORMULA (B) OF SECTION 511, OF THE CAREER COMPENSATION ACT.