B-147624, DEC. 18, 1961

B-147624: Dec 18, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21. - WAS ALLOWED SIDNEY PAGE ABBOTT. YOU STATE THAT YOUR REQUEST IS BASED UPON THE FACT THAT IN DETERMINING THE AMOUNT DUE. THE CLAIMANT IS ENTITLED TO RECEIVE AN ADDITIONAL SETTLEMENT FOR THE PERIOD FROM APRIL 1. ABBOTT'S CLAIM IS FOR INCREASED RETIRED PAY COMPUTED ON THE APPLICABLE RATE PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949. WERE FULLY DISCUSSED IN DECISIONS B- 138416. IS ACTUAL ACTIVE SERVICE. NEITHER THE WHITE CASE NOR THE JOHNSON CASE DEALT WITH THE MATTER OF HOW TO COMPUTE RETIRED PAY UNDER METHOD (B) OF SECTION 511 AND NOTHING HAS BEEN FOUND IN THE DECISIONS IN THOSE CASES WHICH WARRANTS THE CONCLUSION THAT CONSTRUCTIVE SERVICE MAY BE USED IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR WHICH IS APPLICABLE IN AN OTHERWISE PROPER CASE IN COMPUTING RETIRED PAY UNDER METHOD (B).

B-147624, DEC. 18, 1961

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21, 1961, REQUESTING REVIEW OF THE SETTLEMENTS MADE ON DECEMBER 9, 1958 (NOVEMBER 24, 1958), AND MARCH 11, 1959 (JANUARY 14, 1959), BY WHICH ADDITIONAL RETIRED PAY--- COMPUTED ON THE BASIS OF HIS COMMISSIONED WARRANT OFFICER GRADE UNDER THE DECISION IN THE TATO CASE, 136 CT.CL. 651--- WAS ALLOWED SIDNEY PAGE ABBOTT, CHIEF BOATSWAINS MATE, UNITED STATES NAVY, RETIRED. YOU STATE THAT YOUR REQUEST IS BASED UPON THE FACT THAT IN DETERMINING THE AMOUNT DUE, THE CLAIMANT HAS NOT BEEN CREDITED WITH HIS PERIODS OF CONSTRUCTIVE SERVICE UNDER THE PROVISIONS OF SECTION 22 OF THE NAVY RESERVE ACT OF 1938, 52 STAT. 1175, 1178, AS INTERPRETED BY THE COURT OF CLAIMS IN WAYNE J. JOHNSON V. UNITED STATES, CT.CL.NO. 217-56, DECIDED MAY 31, 1961, AND WHITE V. UNITED STATES, 121 CT.CL.NO. 1, AND BY THIS OFFICE IN 38 COMP. GEN. 110, AND THAT, IF CREDITED WITH THIS SERVICE, THE CLAIMANT IS ENTITLED TO RECEIVE AN ADDITIONAL SETTLEMENT FOR THE PERIOD FROM APRIL 1, 1955, TO DATE OF SETTLEMENT.

MR. ABBOTT'S CLAIM IS FOR INCREASED RETIRED PAY COMPUTED ON THE APPLICABLE RATE PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, USING HIS CONSTRUCTIVE SERVICE TO ENHANCE THE PERCENTAGE MULTIPLE USED IN THE FORMULA PROVIDED IN SECTION 511 (B) OF THE 1949 ACT, BY INCREASING THE LONGEVITY FACTOR FROM 22 TO 23 YEARS. THE LIMITATIONS ON THE SCOPE OF THE PROVISION AUTHORIZING THE COUNTING OF MINORITY AND CONSTRUCTIVE SERVICE, AS CONTAINED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, AND THE EXTENT OF THE HOLDINGS OF THE WHITE AND JOHNSON CASES AND OF OUR DECISION IN 38 COMP. GEN. 110, WERE FULLY DISCUSSED IN DECISIONS B- 138416, DATED MARCH 24, 1959, AND OCTOBER 31, 1961, ADDRESSED TO YOUR OFFICE IN THE CASE IF GIRARD C. POLITE, CHIEF MACHINIST, UNITED STATES NAVY, RETIRED. AS THERE EXPLAINED, THE "ACTIVE SERVICE" FACTOR AUTHORIZED TO BE USED IN COMPUTING RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT, IS ACTUAL ACTIVE SERVICE. NEITHER THE WHITE CASE NOR THE JOHNSON CASE DEALT WITH THE MATTER OF HOW TO COMPUTE RETIRED PAY UNDER METHOD (B) OF SECTION 511 AND NOTHING HAS BEEN FOUND IN THE DECISIONS IN THOSE CASES WHICH WARRANTS THE CONCLUSION THAT CONSTRUCTIVE SERVICE MAY BE USED IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR WHICH IS APPLICABLE IN AN OTHERWISE PROPER CASE IN COMPUTING RETIRED PAY UNDER METHOD (B), COMMENCING APRIL 1, 1955, UNDER THE RULE OF FAGAN, ET AL., (LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL.NO. 535-57, DECIDED MAY 4, 1960.

ACCORDINGLY, THE SETTLEMENTS OF NOVEMBER 24, 1958, AND JANUARY 14, 1959, ARE SUSTAINED.