B-149227, NOV. 1, 1962

B-149227: Nov 1, 1962

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THE AMOUNT ALLOWED BY THE SETTLEMENT WAS COMPUTED ON THE PAY OF THE RATING CHIEF BOILERMAN WITH OVER 26 YEARS' LONGEVITY MULTIPLIED BY 60 PERCENT (24 YEARS' ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT) PURSUANT TO THE PROVISIONS OF SECTION 402 (D) AND (F) OF THE CAREER COMPENSATION ACT OF 1949. WAS BASED ON THE FACT THAT THE RATES OF RETIRED PAY ACTUALLY RECEIVED BY YOU DURING THE PERIOD JUNE 1. WERE BASED ON 25 YEARS OF ACTIVE SERVICE. WHEREAS THE INCREASED RETIRED PAY WAS BASED ON ONLY 24 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES. YOU WERE RECALLED TO ACTIVE DUTY ON FEBRUARY 1. ON THE BASIS OF AN UNDERSTANDING THAT THE PERIODS OF SICKNESS DUE TO YOUR OWN MISCONDUCT HAD NOT BEEN DEDUCTED AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE AND THE RATES OF RETIRED PAY AT WHICH YOU WERE PAID FROM JUNE 1.

B-149227, NOV. 1, 1962

TO MR. ALBERT DWIGHT STEBBINS:

BY LETTER DATED JUNE 7, 1962, YOUR ATTORNEYS REQUESTED RECONSIDERATION OF THE SETTLEMENT DATED NOVEMBER 22, 1961, MADE BY THE CLAIMS DIVISION OF THIS OFFICE AND AFFIRMED ON APRIL 17, 1962, OF YOUR CLAIM FOR INCREASED DISABILITY RETIRED PAY BELIEVED DUE YOU FOR THE PERIOD FROM JUNE 1, 1954, TO JUNE 30, 1961, IN ACCORDANCE WITH THE HOLDING IN SELIGA V. UNITED STATES, 137 CT.CL. 710.

THE AMOUNT ALLOWED BY THE SETTLEMENT WAS COMPUTED ON THE PAY OF THE RATING CHIEF BOILERMAN WITH OVER 26 YEARS' LONGEVITY MULTIPLIED BY 60 PERCENT (24 YEARS' ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT) PURSUANT TO THE PROVISIONS OF SECTION 402 (D) AND (F) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 819. THE ORIGINAL REQUEST FOR RECONSIDERATION DATED FEBRUARY 20, 1962, WAS BASED ON THE FACT THAT THE RATES OF RETIRED PAY ACTUALLY RECEIVED BY YOU DURING THE PERIOD JUNE 1, 1954, TO JUNE 30, 1961, WERE BASED ON 25 YEARS OF ACTIVE SERVICE, WHEREAS THE INCREASED RETIRED PAY WAS BASED ON ONLY 24 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES.

THE RECORDS SHOW THAT ON THE DATE OF YOUR TRANSFER TO THE UNITED STATES NAVAL FLEET RESERVE, JUNE 1, 1950, AFTER DEDUCTING 5 MONTHS AND 6 DAYS' TIME LOST ON ACCOUNT OF SICKNESS DUE TO YOUR OWN MISCONDUCT, YOU HAD COMPLETED A TOTAL OF 22 YEARS, 0 MONTHS AND 26 DAYS OF ACTUAL ACTIVE SERVICE. YOU WERE RECALLED TO ACTIVE DUTY ON FEBRUARY 1, 1952, AND RELEASED THEREFROM ON MAY 31, 1954, WHICH ACTIVE DUTY OF 2 YEARS AND 4 MONTHS, WHEN ADDED TO YOUR ACTIVE SERVICE BEFORE TRANSFER, RESULTED IN TOTAL ACTIVE SERVICE OF 24 YEARS, 4 MONTHS AND 26 DAYS. ON THE BASIS OF AN UNDERSTANDING THAT THE PERIODS OF SICKNESS DUE TO YOUR OWN MISCONDUCT HAD NOT BEEN DEDUCTED AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE AND THE RATES OF RETIRED PAY AT WHICH YOU WERE PAID FROM JUNE 1, 1954, THROUGH JUNE 30, 1961, WERE BASED ON A CREDIT FOR 25 YEARS OF SERVICE, IT IS URGED THAT YOUR SERVICE AS THUS DETERMINED WAS FINAL AND CONCLUSIVE FOR ALL PURPOSES, CITING DECISION OF OCTOBER 14, 1955, B-123795, IN THE CASE OF EUGENE CALANDE.

THE CALANDE DECISION INVOLVED THE COMPUTATION OF INCREASED RETAINER PAY UNDER THE PROVISIONS OF SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, AND, WHILE IT MAY BE THAT A DETERMINATION OF THE SECRETARY OF THE NAVY AS TO RANKS OR RATES AND LENGTH OF SERVICE UNDER THE PROVISIONS OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, IS CONCLUSIVE FOR THE PURPOSES OF COMPUTING INCREASES IN RETAINER OR RETIRED PAY UNDER SECTION 516, IT IS NOT CONTROLLING IN THE COMPUTATION OF RETIRED PAY UNDER TITLE IV OF THE 1949 ACT.

ON FEBRUARY 3, 1959, YOU ELECTED TO RECEIVE RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 BY MULTIPLYING AN AMOUNT EQUAL TO THE MONTHLY BASIC PAY OF THE RATING HELD BY YOU AT THE TIME OF PLACEMENT OF YOUR NAME ON THE TEMPORARY DISABILITY RETIRED LIST BY A NUMBER EQUAL TO THE NUMBER OF YEARS OF ACTIVE SERVICE TO WHICH YOU ARE ENTITLED MULTIPLIED BY 2 1/2 PERCENT.

THE RECORD SHOWS THAT YOU LOST AN AGGREGATE OF 5 MONTHS AND 6 DAYS ON ACCOUNT OF SICKNESS DUE TO YOUR OWN MISCONDUCT DURING THE PERIODS FROM OCTOBER 21, 1927, TO FEBRUARY 14, 1928; FROM MAY 23 TO JUNE 9, 1930; FROM NOVEMBER 19 TO DECEMBER 1, 1931, AND FROM JANUARY 4 TO 15, 1939. DURING THOSE PERIODS YOU WERE SUBJECT TO THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED, 34 U.S.C. 183 (1946 ED.) WHICH PROVIDED AS FOLLOWS:

"AN ENLISTMENT IN THE NAVY OR MARINE CORPS SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST ON ACCOUNT OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER CONDUCT.'

SINCE THERE IS NOTHING IN THE RECORD TO SHOW THAT THE TIME LOST WAS MADE UP, YOU MAY NOT BE GIVEN FULL CREDIT FOR THE TERMS OF THE ENLISTMENTS INVOLVED AND IT WAS PROPER TO DEDUCT THE LOST TIME TO DETERMINE YOUR ACTUAL ACTIVE SERVICE, 24 YEARS, 4 MONTHS AND 26 DAYS, FOR PERCENTAGE MULTIPLE PURPOSES UNDER 10 U.S.C. 1401 IN COMPUTING THE AMOUNT FOUND DUE YOU ON THE BASIS OF THE SELIGA RULE.

ACCORDINGLY, SETTLEMENT DATED NOVEMBER 22, 1961, WAS PROPER AND UPON RECONSIDERATION IS SUSTAINED.