B-149774, SEP. 28, 1962

B-149774: Sep 28, 1962

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FOR INCREASED RETIRED PAY ON THE BASIS THAT CLAIMANT IS ENTITLED TO CREDIT FOR PERIODS OF CONSTRUCTIVE SERVICE. IT APPEARS THAT THE CLAIMANT WAS PAID RETIRED PAY FROM DATE OF RETIREMENT THROUGH SEPTEMBER 30. IS BASED ON THE CONTENTION THAT UNDER THE PORTION OF THE DECISION IN THE CASE OF BAILEY (LEONARD. CLAIMANT WAS ENTITLED TO CREDIT FOR PERIODS OF CONSTRUCTIVE SERVICE IN COMPUTING HIS RETIRED PAY UNDER THE "SAVED-PAY FORMULA.'. IN EFFECT CLAIM IS MADE FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED UPON THE PAY FACTOR FOR A LIEUTENANT COMMANDER WITH OVER 27 YEARS' SERVICE OR $348.69 PER MONTH AND THE MONTHLY RATE OF $346.79 RECEIVED. IS MERELY RECOGNITION BY THE COURT OF ITS RULE IN THE WHITE DECISION.

B-149774, SEP. 28, 1962

TO KING AND KING:

YOUR LETTER DATED AUGUST 14, 1962, REQUESTS RECONSIDERATION OF SETTLEMENT OF OUR CLAIMS DIVISION DATED AUGUST 9, 1962, DISALLOWING THE CLAIM OF ROBERT HARRISON ALEXANDER, LCDR, 244 167, USN, RETIRED, FOR INCREASED RETIRED PAY ON THE BASIS THAT CLAIMANT IS ENTITLED TO CREDIT FOR PERIODS OF CONSTRUCTIVE SERVICE.

IT APPEARS THAT THE CLAIMANT WAS PAID RETIRED PAY FROM DATE OF RETIREMENT THROUGH SEPTEMBER 30, 1949, BASED ON OVER 24 YEARS OF SERVICE UNDER THE FORMULA OF THE SANDERS CASE, 120 CT.CL. 501, AND AFTER THAT DATE HE HAS RECEIVED RETIRED PAY COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829. THE CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD FROM MAY 1, 1952, THROUGH MARCH 31, 1955, IS BASED ON THE CONTENTION THAT UNDER THE PORTION OF THE DECISION IN THE CASE OF BAILEY (LEONARD, PLAINTIFF NO. 21) V. UNITED STATES, CT.CL. NO. 505-59, DECIDED JULY 18, 1962, QUOTED IN YOUR LETTER, CLAIMANT WAS ENTITLED TO CREDIT FOR PERIODS OF CONSTRUCTIVE SERVICE IN COMPUTING HIS RETIRED PAY UNDER THE "SAVED-PAY FORMULA.' IN EFFECT CLAIM IS MADE FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED UPON THE PAY FACTOR FOR A LIEUTENANT COMMANDER WITH OVER 27 YEARS' SERVICE OR $348.69 PER MONTH AND THE MONTHLY RATE OF $346.79 RECEIVED.

AS WE SAID IN OUR DECISION OF SEPTEMBER 14, 1962, B-57924, TO YOU, THE LANGUAGE OF THE COURT QUOTED IN YOUR LETTER OF AUGUST 14, 1962, IS MERELY RECOGNITION BY THE COURT OF ITS RULE IN THE WHITE DECISION, 121 CT.CL. 1, THAT CONSTRUCTIVE SERVICE AS AUTHORIZED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 MAY BE INCLUDED IN THE PERCENTAGE MULTIPLE FOR COMPUTING RETAINER OR RETIRED PAY UNDER THE FORMULA CONTAINED IN SECTION 205 OF THE 1938 ACT AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993. WE THUS DETERMINED THAT NOTHING CONTAINED IN THE BAILEY (LEONARD) CASE ALTERS OUR POSITION THAT YEARS OF SERVICE IN COMPUTING LONGEVITY PAY UNDER THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 359, MAY NOT INCLUDE CONSTRUCTIVE SERVICE UNDER MINORITY OR SHORT -TERM ENLISTMENTS.

SINCE COMMANDER ALEXANDER'S RETIRED PAY FOR THE PERIOD FROM MAY 1, 1952, THROUGH MARCH 31, 1955, COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, EXCEEDED THE "SAVED PAY" COMPUTED EITHER ON THE BASIS OF ONE-HALF THE APPLICABLE RATE OF BASE PAY, PLUS PERMANENT ADDITIONS, PLUS 10 PERCENT FOR GOOD CONDUCT UNDER THE FRACTIONAL FORMULA OF SECTION 203 OF THE NAVAL RESERVE ACT OR UNDER THE PERCENTAGE FORMULA PROVIDED BY THE ACT OF AUGUST 10, 1946, AS INTERPRETED BY THE WHITE DECISION, HE WAS CORRECTLY PAID RETIRED PAY DURING THE PERIOD OF HIS CLAIM. ACCORDINGLY, SETTLEMENT DATED AUGUST 9,1962, IS SUSTAINED.