B-147784, JAN. 11, 1962

B-147784: Jan 11, 1962

Additional Materials:

Contact:

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

 

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

ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. HIS FIRST CLAIM FOR INCREASED RETIRED PAY AS A COMMISSIONED WARRANT OFFICER WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MARCH 25. WAS TREATED AS BARRED. YOU HAVE NOT FURNISHED ANY INFORMATION WHICH WOULD INDICATE THAT THE DISALLOWANCE WAS IN ERROR AS TO CREDITABLE SERVICE. NO MINORITY ENLISTMENT IS HERE INVOLVED SINCE IT APPEARS THAT MR. LYONS WAS OVER 21 YEARS OF AGE AT THE TIME OF HIS ENLISTMENT IN THE NAVAL RESERVE FORCE ON JUNE 30. YOU CONTEND THAT THE CLAIM IS GOVERNED BY THE DECISION IN THE CASE OF JOHNSON V. IS NOT BARRED BECAUSE SUCH CLAIM ACCRUED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.

B-147784, JAN. 11, 1962

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1961, REQUESTING RECONSIDERATION OF THE DISALLOWANCE OF THE CLAIM FILED BY YOU ON BEHALF OF HEBER G. LYONS, CWO, USN, RETIRED, FOR INCREASED RETIRED PAY BASED ON CREDIT FOR CONSTRUCTIVE SERVICE IN SHORT-TERM ENLISTMENTS AND MINORITY ENLISTMENT AND FOR THE DIFFERENCE BETWEEN THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER AND THE RETAINER PAY OF A CHIEF PETTY OFFICER FROM THE DATE ON WHICH HE COMPLETED 30 YEARS OF NAVAL SERVICE.

THE DISALLOWANCE DATED JANUARY 12, 1960, CONTAINED A RECITAL OF MR. LYONS' SERVICE AS SHOWN IN THE OFFICIAL RECORDS AND A STATEMENT THAT HIS RETIRED PAY HAD BEEN PROPERLY COMPUTED, BASED ON THE INCLUSION OF HIS CONSTRUCTIVE SERVICE AS AUTHORIZED BY LAW. SINCE HE HAD BEEN TRANSFERRED TO THE RETIRED LIST AND ADVANCED TO COMMISSIONED WARRANT OFFICER RANK EFFECTIVE AUGUST 1, 1947, AND HIS FIRST CLAIM FOR INCREASED RETIRED PAY AS A COMMISSIONED WARRANT OFFICER WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MARCH 25, 1958, THAT PORTION OF HIS CLAIM COVERING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER AND THE RETAINER PAY OF A CHIEF PETTY OFFICER FROM AUGUST 1, 1947, TO MARCH 24, 1948, WAS TREATED AS BARRED.

YOU HAVE NOT FURNISHED ANY INFORMATION WHICH WOULD INDICATE THAT THE DISALLOWANCE WAS IN ERROR AS TO CREDITABLE SERVICE. NO MINORITY ENLISTMENT IS HERE INVOLVED SINCE IT APPEARS THAT MR. LYONS WAS OVER 21 YEARS OF AGE AT THE TIME OF HIS ENLISTMENT IN THE NAVAL RESERVE FORCE ON JUNE 30, 1917, AND HE HAS RECEIVED APPROPRIATE CONSTRUCTIVE SERVICE CREDIT FOR HIS ONE SHORT-TERM ENLISTMENT IN THE REGULAR NAVY. YOU CONTEND THAT THE CLAIM IS GOVERNED BY THE DECISION IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL. NO. 217-56, DECIDED MAY 3, 1961, AND IS NOT BARRED BECAUSE SUCH CLAIM ACCRUED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829. YOUR REQUEST FOR RECONSIDERATION THEREFORE WILL BE CONSIDERED AS AN APPEAL FROM THE PRIOR BARRING ACTION ONLY.

YOUR REFERENCE TO THE JOHNSON CASE AND TO THE 1949 ACT IS NOT UNDERSTOOD. ANY RIGHTS ARISING UNDER SECTION 511 OF THAT ACT AND THE COURT'S CONCLUSIONS IN THAT CASE, CAN ACCRUE ONLY FOR PERIODS ON AND AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THAT ACT. SETTLEMENT OF JULY 28, 1958, ALLOWED MR. LYONS RETIRED PAY COMPUTED ON HIS COMMISSIONED WARRANT OFFICER GRADE UNDER METHOD (B) OF SECTION 511 FOR THE PERIOD COMMENCING OCTOBER 1, 1949. HIS RIGHT TO RETIRED PAY FROM AUGUST 1, 1947, DATE HE WAS PLACED ON THE RETIRED LIST, TO SEPTEMBER 30, 1949, COMPUTED ON THAT GRADE UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, IS BASED ON THE TATO CASE, 136 CT.CL. 651, NOT THE 1949 ACT. HIS RIGHT TO SUCH RETIRED PAY IS NOT QUESTIONED AND HIS CLAIM THEREFOR WOULD HAVE BEEN ALLOWED IN FULL--- THE ALLOWANCE COVERED ONLY THE PERIOD MARCH 25, 1948, TO SEPTEMBER 30, 1949--- EXCEPT FOR THE BAR OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

WE FIND NO ERROR IN THE SETTLEMENT OF JANUARY 12, 1960, AND UPON REVIEW, IT IS SUSTAINED.