B-149297, AUG. 10, 1962

B-149297: Aug 10, 1962

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 6. YOUR REQUEST FOR REVIEW IS BASED ON THE DECISION IN THE CASE OF MENOCAL V. THE RECORD SHOWS THAT YOU WERE COMMISSIONED AN ENSIGN IN THE REGULAR NAVY ON JUNE 7. THAT YOU WERE RETIRED ON MARCH 1. YOU WERE ADVANCED TO THE GRADE OF CAPTAIN ON THE RETIRED LIST PURSUANT TO A DETERMINATION MADE BY THE SECRETARY OF THE NAVY UNDER SECTION 10 OF THE ACT OF JULY 24. YOUR RETIRED PAY WAS ADJUSTED ACCORDINGLY PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949. THE PLAINTIFF HAD SERVED IN WORLD WAR I AND WAS RETIRED IN 1948 AFTER HAVING SERVED ON ACTIVE DUTY FOR APPROXIMATELY 26 YEARS. HE WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS RECEIVING AT THE TIME OF RETIREMENT.

B-149297, AUG. 10, 1962

TO CAPTAIN DESMOND J. SINNOTT, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1962, REQUESTING RECONSIDERATION OF THAT PORTION OF SETTLEMENT DATED AUGUST 17, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949. YOUR REQUEST FOR REVIEW IS BASED ON THE DECISION IN THE CASE OF MENOCAL V. UNITED STATES, CT.CL. NO. 63-61, DECIDED APRIL 4, 1962.

THE RECORD SHOWS THAT YOU WERE COMMISSIONED AN ENSIGN IN THE REGULAR NAVY ON JUNE 7, 1918, AND THAT YOU WERE RETIRED ON MARCH 1, 1934, PURSUANT TO A FINDING OF DISABILITY INCIDENT TO YOUR NAVAL SERVICE. THEREAFTER YOU SERVED ON ACTIVE DUTY FROM JULY 26, 1940, TO JUNE 30, 1949. YOU WERE ADVANCED TO THE GRADE OF CAPTAIN ON THE RETIRED LIST PURSUANT TO A DETERMINATION MADE BY THE SECRETARY OF THE NAVY UNDER SECTION 10 OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28. YOUR RETIRED PAY WAS ADJUSTED ACCORDINGLY PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, ON OCTOBER 12, 1949.

IN THE MENOCAL CASE, THE PLAINTIFF HAD SERVED IN WORLD WAR I AND WAS RETIRED IN 1948 AFTER HAVING SERVED ON ACTIVE DUTY FOR APPROXIMATELY 26 YEARS. UNDER THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 314, 56 STAT. 368, HE WAS ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY HE WAS RECEIVING AT THE TIME OF RETIREMENT. THEREAFTER HE SERVED ON ACTIVE DUTY FROM 1951 TO 1953. THE COURT HELD THAT UPON HIS RELEASE FROM ACTIVE DUTY IN 1953 HE WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED IN THE SAME MANNER AS IF THAT RELEASE HAD BEEN THE ORIGINAL RETIREMENT IN HIS CASE. SINCE THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 WAS NOT REPEALED BY THE CAREER COMPENSATION ACT OF 1949, THE PLAINTIFF WAS HELD TO BE ENTITLED TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY HE WAS RECEIVING AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY IN 1953, EVEN THOUGH THE RATE OF PAY WAS BASED IN PART ON INACTIVE TIME SPENT ON THE RETIRED LIST. MENOCAL'S ENTITLEMENT TO RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY RATES ESTABLISHED BY THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, WAS BASED ON THE FACT THAT HE HAD SERVED ON ACTIVE DUTY AND WAS "RE RETIRED" AFTER OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE 1949 ACT. SINCE YOU WERE RETIRED PRIOR TO THAT DATE, IT IS APPARENT THAT THE MATERIAL FACTS IN THAT CASE ARE DIFFERENT FROM THOSE IN YOUR CASE AND THAT, THEREFORE, THE DECISION IN THE MENOCAL CASE DOES NOT AFFECT THE COMPUTATION OF YOUR RETIRED PAY.

RESPECTING YOUR ELIGIBILITY FOR ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1949, BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, THAT IS, AT THE RATE OF 75 PERCENT OF THE APPLICABLE PAY RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, THE RECORD SHOWS THAT ON JUNE 19, 1953, YOU MADE AN ELECTION UNDER SECTION 411 OF THAT ACT TO RECEIVE RETIRED PAY COMPUTED ON YOUR YEARS OF SERVICE AT THE APPLICABLE RATE PRESCRIBED IN THE CAREER COMPENSATION ACT. UNDER THAT ELECTION YOU HAVE BEEN PAID RETIRED PAY COMPUTED AT 2 1/2 PERCENT OF THE PAY PROVIDED IN THE 1949 ACT FOR A CAPTAIN WITH OVER 22 CULULATIVE YEARS OF SERVICE, MULTIPLIED BY 25 YEARS OF ACTIVE SERVICE (A PERCENTAGE MULTIPLE OF 62 1/2 PERCENT).

WE HAVE HELD THAT IN APPLYING THE RATES OF PAY CONTAINED IN THE 1949 ACT IN THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR AGE OR LENGTH OF SERVICE BEFORE OCTOBER 1, 1949, METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, IS FOR EXCLUSIVE APPLICATION. THEREFORE, AN OFFICER RETIRED FOR AGE OR LENGTH OF SERVICE PRIOR TO OCTOBER 1, 1949, WHOSE TOTAL ACTIVE SERVICE WAS LESS THAN 29 YEARS AND 6 MONTHS, MAY NOT INVOKE THE PROVISIONS OF SECTION 511 IN ORDER TO HAVE HIS RETIRED PAY COMPUTED ON THE APPLICABLE RATE OF MJNTHLY BASIC PAY PRESCRIBED IN THE 1949 ACT AND, ALSO, APPLY THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 TO DETERMINE THE PERCENTAGE OF HIS ACTIVE DUTY PAY IN ORDER TO RECEIVE A GREATER RETIRED PAY. SEE 30 COMP. GEN. 350. THE SAME CONCLUSION IS REQUIRED WITH RESPECT TO AN OFFICER RETIRED FOR DISABILITY BEFORE OCTOBER 1, 1949, AND WHO ELECTS TO HAVE HIS RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949. SEE 31 COMP. GEN. 28 AND PALMER V. UNITED STATES, 139 CT.CL. 376.

IN 1953, WHEN YOU WERE INFORMED AS TO THE DIFFERENT ELECTIONS WHICH WERE OPEN TO YOU UNDER SECTION 411 OF THE 1949 ACT, YOU WERE ADVISED THAT IF YOU ELECTED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 2 1/2 PERCENT TIMES YOUR YEARS OF ACTIVE SERVICE, SUCH PAY WOULD BE COMPUTED ON THE PAY OF A CAPTAIN WITH OVER 22 YEARS OF SERVICE. HOWEVER, IT APPEARS THAT UNDER THE RULING IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710, A QUALIFIED MEMBER WHO ELECTS TO HAVE HIS RETIRED PAY COMPUTED ON HIS YEARS OF ACTIVE SERVICE UNDER METHOD (1) OF SECTION 402 (D) OF THE 1949 ACT, IS ENTITLED TO CREDIT FOR BOTH ACTIVE DUTY AND TIME WHILE ON THE RETIRED LIST IN AN INACTIVE STATUS BETWEEN TWO PERIODS OF ACTIVE DUTY IN DETERMINING THE RATE OF PAY USED IN COMPUTING HIS RETIRED PAY. HENCE, YOUR RETIRED PAY SHOULD HAVE BEEN PAID AT THE RATE OF 62 1/2 PERCENT OF THE PAY OF A CAPTAIN WITH OVER 30 YEARS OF SERVICE. ACCORDINGLY, OUR CLAIMS DIVISION IS BEING DIRECTED TO ISSUE A SETTLEMENT IN YOUR FAVOR, UPON THE RECEIPT OF THE NECESSARY PAY RECORDS, ETC., ALLOWING YOU THE DIFFERENCE IN RETIRED PAY BETWEEN THAT COMPUTED ON THE ABOVE BASIS AND THAT WHICH YOU HAVE RECEIVED FROM OCTOBER 1, 1949, TO THE PRESENT TIME. SUCH SETTLEMENT WILL INCLUDE AN ADJUSTMENT IN THE PREMIUMS PAYABLE UNDER YOUR ELECTION TO RECEIVE REDUCED RETIRED PAY UNDER THE CONTINGENCY OPTION ACT OF 1953 WHICH WILL BE NECESSITATED BY THE CHANGE IN THE RATE OF YOUR RETIRED PAY.