B-149285, JUL. 11, 1962

B-149285: Jul 11, 1962

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 14. THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON DECEMBER 30. THAT THEREAFTER YOU SERVED AN ADDITIONAL TOUR OF ACTIVE DUTY FROM WHICH YOU WERE RELEASED ON NOVEMBER 13. WAS COMPUTED UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. THE DECISION IN THE JOHNSON CASE IS TO THE EFFECT THAT CONSTRUCTIVE SERVICE MAY BE CREDITED TOWARD THE 30 YEARS OF SERVICE REQUIRED AS A PREREQUISITE TO THE RECEIPT OF RETIRED PAY OF A HIGHER OFFICER GRADE UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. THERE IS NOTHING IN EITHER OF THOSE DECISIONS WHICH HELD OR WOULD PROVIDE A BASIS FOR HOLDING.

B-149285, JUL. 11, 1962

TO LIEUTENANT EDWARD E. KEELEY, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1962, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 3, 1962, OF OUR CLAIMS DIVISION, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949, BASED ON CREDIT FOR CONSTRUCTIVE SERVICE FOR MINORITY OR SHORT-TERM ENLISTMENTS FOR BASIC PAY PURPOSES.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON DECEMBER 30, 1937, AND THAT THEREAFTER YOU SERVED AN ADDITIONAL TOUR OF ACTIVE DUTY FROM WHICH YOU WERE RELEASED ON NOVEMBER 13, 1948, BRINGING YOUR ACTUAL ACTIVE SERVICE TO A TOTAL OF 27 YEARS, 11 MONTHS AND 15 DAYS, OR TO 28 YEARS FOR PERCENTAGE MULTIPLE PURPOSES UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802. IT FURTHER APPEARS THAT THE RETIRED PAY PAID TO YOU AFTER SEPTEMBER 30, 1949, WAS COMPUTED UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829.

IN YOUR LETTER YOU ASSERT THAT THE SETTLEMENT ACTION APPEARS TO BE INCONSISTENT WITH OUR DECISION OF OCTOBER 13, 1961, B-147085, 41 COMP. GEN. 238, COPY ENCLOSED, WHEREIN WE SAID THAT WE WOULD FOLLOW THE RULE OF THE JOHNSON CASE, CT.CL.NO. 217-56, DECIDED MAY 3, 1961. THE DECISION IN THE JOHNSON CASE IS TO THE EFFECT THAT CONSTRUCTIVE SERVICE MAY BE CREDITED TOWARD THE 30 YEARS OF SERVICE REQUIRED AS A PREREQUISITE TO THE RECEIPT OF RETIRED PAY OF A HIGHER OFFICER GRADE UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. THERE IS NOTHING IN EITHER OF THOSE DECISIONS WHICH HELD OR WOULD PROVIDE A BASIS FOR HOLDING, THAT SUCH CONSTRUCTIVE SERVICE IS CREDITABLE IN COMPUTING THE LENGTH OF SERVICE CREDITABLE IN THE BASIC PAY FACTOR IN COMPUTING RETIRED PAY.

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED BY LAW, THE 1942 AND 1949 PAY ACTS GOVERN THE CREDITING OF SERVICE FOR THE PURPOSE OF COMPUTING LENGTH OF SERVICE FOR BASE AND LONGEVITY PAY AND BASIC PAY, RESPECTIVELY, NOT ONLY FOR ACTIVE DUTY PAY BUT ALSO FOR RETAINER AND RETIRED PAY. THE CONSTRUCTIVE SERVICE MENTIONED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, MAY BE CREDITED ONLY FOR THE PURPOSE OF DETERMINING LENGTH OF SERVICE FOR TRANSFER TO THE FLEET RESERVE AND RETIREMENT, AND FOR COMPUTING THE PERCENTAGE MULTIPLE FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE FORMULA PRESCRIBED IN THAT ACT. IT CONTAINS NO AUTHORITY FOR CREDITING SUCH CONSTRUCTIVE SERVICE FOR COMPUTING PAY BASED ON LENGTH OF SERVICE IN THE BASIC PAY FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. CF. 38 COMP. GEN. 110.

SUBSEQUENT TO SEPTEMBER 30, 1949, YOU WERE ENTITLED TO RETIRED PAY COMPUTED UNDER THE PROVISIONS OF THE 1949 LAW WHICH, WITH AN EXCEPTION NOT HERE MATERIAL, RESTRICTS CREDIT IN COMPUTING LENGTH OF SERVICE FOR BASIC PAY PURPOSES TO ACTUAL SERVICE. SEE DECISION DATED OCTOBER 31, 1961, B- 138416, COPY ENCLOSED.