B-150583, MAR. 15, 1963

B-150583: Mar 15, 1963

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TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19. WAS DISALLOWED ON THE GROUNDS THAT MR. HAD NOT BEEN INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY AND FOR THE ADDITIONAL REASON THAT HE HAD LESS THAN 20 YEARS OF ACTIVE SERVICE. WHILE NO MENTION WAS MADE OF THE LACK OF 20 YEARS OF ACTIVE SERVICE IN YOUR LETTER OF DECEMBER 19. ZILM'S DISABILITY WAS INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY. YOU HAVE FORWARDED HERE WITH YOUR LETTER OF JANUARY 16. ZILM'S TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY WAS INCURRED WHILE IN RECEIPT OF BASIC PAY AND IN A REPORT DATED FEBRUARY 18. ZILM'S TOTAL COMBINED DISABILITY RATING IS 20 PERCENT AND ALSO THAT "THE PHYSICAL REVIEW COUNCIL IS OF THE OPINION THAT THE DISABILITY RESULTING IN SUBJECT PARTY'S PHYSICAL DISABILITY RETIREMENT DID NOT OCCUR WHILE HE WAS IN RECEIPT OF BASIC PAY.'.

B-150583, MAR. 15, 1963

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1962, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 31, 1962, DISALLOWING THE CLAIM OF MR. HARVEY ZILM FOR INCREASED RETIRED PAY ALLEGED TO BE DUE HIM (AS A RETIRED MEMBER OF THE U.S. NAVY) PURSUANT TO ONE OR MORE OF THE ALTERNATIVE METHODS OF COMPUTATION SET FORTH IN YOUR PRIOR LETTER OF JUNE 28, 1962.

YOUR REQUEST APPEARS DIRECTED SOLELY TO THAT PORTION OF THE CLAIM FOR INCREASED RETIRED PAY UNDER THE RULE OF THE SELIGA DECISION, 137 CT.CL. 710 (1957). IN THAT CONNECTION THE RECORD SHOWS THAT THE SELIGA TYPE CLAIM ADVANCED IN THE LETTER OF JUNE 28, 1962, WAS DISALLOWED ON THE GROUNDS THAT MR. ZILM'S PHYSICAL DISABILITY WHICH HAD RESULTED IN HIS TRANSFER AS AN ENLISTED MAN OF THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY ON JUNE 1, 1941, HAD NOT BEEN INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY AND FOR THE ADDITIONAL REASON THAT HE HAD LESS THAN 20 YEARS OF ACTIVE SERVICE.

WHILE NO MENTION WAS MADE OF THE LACK OF 20 YEARS OF ACTIVE SERVICE IN YOUR LETTER OF DECEMBER 19, 1962, YOU THEREIN STATED THAT CERTAIN INFORMATION THEN IN YOUR POSSESSION INDICATED THAT MR. ZILM'S DISABILITY WAS INCURRED WHILE HE WAS IN RECEIPT OF BASIC PAY. PURSUANT TO OUR INFORMAL REQUEST OF JANUARY 15, 1963, YOU HAVE FORWARDED HERE WITH YOUR LETTER OF JANUARY 16, 1963, COPIES OF THE ORDERS TRANSFERRING MR. ZILM TO THE RETIRED LIST OF THE NAVY EFFECTIVE JUNE 1, 1941, BY REASON OF PHYSICAL DISABILITY, TOGETHER WITH OTHER PAPERS AND CORRESPONDENCE RELATING TO HIS NAVAL STATUS. THE INFORMATION RECEIVED FROM YOU DOES NOT ESTABLISH THAT THE DISABILITY WHICH CAUSED MR. ZILM'S TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY WAS INCURRED WHILE IN RECEIPT OF BASIC PAY AND IN A REPORT DATED FEBRUARY 18, 1963 (RESPONDING TO OUR SPECIFIC REQUEST FOR A SECTION "411" DISABILITY RATING IN MR. ZILM'S CASE) THE PHYSICAL REVIEW COUNCIL, DEPARTMENT OF THE NAVY, HAS ADVISED THIS OFFICE THAT MR. ZILM'S TOTAL COMBINED DISABILITY RATING IS 20 PERCENT AND ALSO THAT "THE PHYSICAL REVIEW COUNCIL IS OF THE OPINION THAT THE DISABILITY RESULTING IN SUBJECT PARTY'S PHYSICAL DISABILITY RETIREMENT DID NOT OCCUR WHILE HE WAS IN RECEIPT OF BASIC PAY.'

THE RECORD BEFORE THIS OFFICE SHOWS THAT MR. ZILM'S TOTAL ACTIVE SERVICE IS APPROXIMATELY 18 YEARS, 6 MONTHS AND 12 DAYS. SINCE HE HAD COMPLETED LESS THAN 20 YEARS OF ACTIVE SERVICE, HIS STATUS DID NOT COME WITHIN THE SCOPE OF SECTION 402 (F) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 820, OCTOBER 12, 1949. THEREFORE, HAVING COMPLETED LESS THAN 20 YEARS OF ACTIVE SERVICE AND WITH A DISABILITY RATING OF LESS THAN 30 PERCENTUM IN ADDITION TO THE FACT THAT THE DISABILITY FOR WHICH HE WAS PLACED ON THE RETIRED LIST WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY, MR. ZILM DOES NOT QUALIFY FOR DISABILITY RETIREMENT PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949. SEE SECTIONS 402 AND 411, 63 STAT. 816 AND 823, RESPECTIVELY. ACCORDINGLY, THE DENIAL OF HIS CLAIM IN THE SETTLEMENT OF AUGUST 31, 1962, FOR THE BENEFITS OF THE SELIGA CASE WAS CORRECT AND IS SUSTAINED.

IN VIEW OF THE FACTS STATED ABOVE, THE CASE OF FRANK BRIGGS WILSON V. UNITED STATES, CT.CL. NO. 465-59, DECIDED NOVEMBER 7, 1962, MENTIONED IN YOUR LETTER OF JANUARY 16, 1963, DOES NOT APPEAR PERTINENT.