B-154010, AUG. 6, 1964

B-154010, AUG. 6, 1964

TO LIEUTENANT COMMANDER HARRY G. JONES, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1964, REQUESTING REVIEW OF THE SETTLEMENT OF THIS OFFICE DATED MARCH 31, 1964,WHICH DISALLOWED YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF A LIEUTENANT COMMANDER, UNITED STATES NAVY, PURSUANT TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 368, FOR THE PERIOD FROM JUNE 1, 1958 TO THE PRESENT TIME.

IT APPEARS THAT YOU FIRST ENLISTED IN THE UNITED STATES NAVY ON JUNE 29, 1914, AND SERVED ON ACTIVE DUTY THROUGH AUGUST 31, 1947, WHEN YOU WERE PLACED ON THE RETIRED LIST IN THE RANK OF LIEUTENANT COMMANDER FOR RETIRED PAY PURPOSED UNDER THE PROVISIONS OF 34 U.S.C. 383 AND 350I (1964 ED.).

THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115 (1958 ED.), PROVIDES, AS FOLLOWS:

"THE RETIRED PAY OF ANY OFFICER OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UNLESS SUCH OFFICER IS ENTITLED TO RETIRED PAY OFA HIGHER GRADE, BE 75 PERCENTUM OF HIS ACTIVE DUTY PAY AT THE TIME OF HIS RETIREMENT.'

PURSUANT TO THE INFORMATION FURNISHED US BY THE DEPARTMENT OF THE NAVY, YOU WERE PAID RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF A LIEUTENANT COMMANDER WITH OVER 30 YEARS' SERVICE PRIOR TO THE PASSAGE OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, OR AT THE RATE OF $360.94 PER MONTH. THEREAFTER, YOUR RETIRED PAY WAS RECOMPUTED ON THE BASIS OF THE 2 1/2 PERCENT FORMULA UNDER THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949 (SINCE THIS PAY WAS GREATER THAN THE PAY YOU WERE RECEIVING ON SEPTEMBER 30, 1949), AND UNDER THE ACTS OF MAY 19, 1952, CH. 310, 66 STAT. 79; MARCH 31, 1955, CH. 20, 69 STAT. 18; AND MAY 20, 1958, PUB.L. 85-422, 72 STAT. 122, FOR THE PERIOD FROM OCTOBER 1, 1949, THROUGH SEPTEMBER 30, 1963.

UNDER THE PROVISIONS OF SECTIONS 3 AND 4 (A) OF THE ACT OF MAY 20, 1958 (72 STAT. 128/--- NOTWITHSTANDING "ANY OTHER PROVISION OF LAW"--- YOU WERE ENTITLED ON THE DAY "BEFORE" THE EFFECTIVE DATE OF THE ACT, MAY 31, 1958. UNDER THE PROVISIONS OF SECTION 5 (C) OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 213, YOU ARE ENTITLED TO HAVE YOUR RETIRED PAY RECOMPUTED ON THE BASIS OF THE RATES OF BASIC PAY IN EFFECT UNDER THE CAREER COMPENSATION ACT OF 1949 ON THE DAY "BEFORE" THE EFFECTIVE DATE OF THE 1963 ACT, SEPTEMBER 30, 1963, OR TO AN INCREASE OF 5 PERCENT IN THE RETIRED PAY TO WHICH YOU WERE ENTITLED AT THE TIME. RECOMPUTATION OF YOUR MONTHLY RETIRED PAY ON THE BASIS OF THE RATES OF BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963, IS AS FOLLOWS: 75 PERCENT (2 1/2 TIMES 30) OF $630 EQUALS $472.50 PER MONTH. SINCE THE MONTHLY RETIRED PAY YOU WERE PAID PRIOR TO OCTOBER 1, 1963, $471.28 PER MONTH, PLUS AN INCREASE OF 5 PERCENT THEREIN, $23.56, AMOUNTS TO $494.84 PER MONTH, WHICH EXCEEDS THE MONTHLY RATE OF RETIRED PAY TO WHICH YOU ARE OTHERWISE ENTITLED--- AS RECOMPUTED UNDER THE RATES OF BASIC PAY IN EFFECT ON SEPTEMBER 30, 1963--- YOUR RETIRED PAY WAS ADJUSTED ON THE BASIS OF THE GREATER AMOUNT OF RETIRED PAY DUE YOU FROM OCTOBER 1, 1963, $494.84 PER MONTH.

IN THE CASE OF PALMER V. UNITED STATES, 139 CT.CL. 376 (1957), INVOLVING AN OFFICER WITH WORLD WAR I SERVICE RETIRED FOR PHYSICAL DISABILITY, THE COURT RULED THAT THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942 ARE LIMITED "TO THE TIME OF RETIREMENT UNDER A PROVISION OF LAW.' YOU WERE RETIRED IN 1947 AND WERE PAID THE MAXIMUM AMOUNT OF RETIRED PAY PAYABLE UNDER SECTION 15 AT THAT TIME. YOU HAVE RECEIVED THE RETIRED PAY RAISES PROVIDED BY APPLICABLE PROVISIONS OF LAW ENACTED SINCE THAT TIME. ALSO SEE SECTION 5 (A) OF THE 1963 ACT, PURSUANT TO WHICH THE CHANGES MADE IN THE RATES OF BASIC PAY BY THIS ACT MAY NOT BE CONSIDERED TO INCREASE THE RETIRED PAY TO WHICH A MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED "ON THE DAY BEFORE THE EFFECTIVE DATE OF THIS ACT.' A SIMILAR PROVISION IS CONTAINED IN SECTION 3 (A) OF THE 1958 ACT. SINCE YOU WERE RETIRED PRIOR TO THE EFFECTIVE DATE OF THE ACT OF MAY 20, 1958, NO RIGHT ACCRUED TO YOU UNDER SECTION 15 TO HAVE YOUR RETIRED PAY COMPUTED AT 75 PERCENT OF THE RATES OF BASIC PAY PRESCRIBED IN THE 1958 AND 1963 ACTS.