B-155303, DEC. 21, 1964

B-155303, DEC. 21, 1964

TO KING AND KING, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1964, CONCERNING THE CLAIM OF JOHN THOMAS OLIVER, 124 97 32, CQM, USN, RETIRED, FOR INCREASED RETIRED PAY FOR THE PERIOD BEGINNING AUGUST 1, 1954, ON THE GROUND THAT, IN COMPUTING HIS RETIRED PAY, THE NAVY DEPARTMENT HAS FAILED TO GIVE CONSIDERATION TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 4, 1920, CH. 228, 41 STAT. 835, WHICH PROVIDED THAT ALL CREDITABLE SERVICE IN THE COAST GUARD AND FORMER REVENUE-CUTTER SERVICE SHOULD BE COUNTED FOR THE PURPOSES OF COMPUTING LONGEVITY PAY AND RETIREMENT PRIVILEGES OF OFFICERS AND ENLISTED MEN OF THE NAVY. YOUR LETTER IS IN EFFECT A REQUEST FOR REVIEW OF OUR SETTLEMENT OF JANUARY 6, 1958, WHICH DISALLOWED MR. OLIVER'S CLAIM (WHICH WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 5, 1957) FOR INCREASED RETIRED PAY BASED ON SUCH SERVICE.

YOU SAY THAT MR. OLIVER IS NOW, AND HAS BEEN, RECEIVING RETIRED PAY COMPUTED ON THE BASIS OF THE SEVERAL RATES OF BASIC PAY PROVIDED IN THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, AND THE AMENDMENTS THERETO, FOR A CHIEF PETTY OFFICER (E-7) CREDITED WITH OVER 16 YEARS OF SERVICE FOR BASIC PAY PURPOSES MULTIPLIED BY 42 1/2 PERCENT (17 YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENT). YOU ALSO SAY THAT HE SHOULD HAVE BEEN GIVEN AN ADDITIONAL CREDIT OF 1 YEAR AND 8 DAYS ON ACCOUNT OF HIS ACTIVE SERVICE IN THE U.S. REVENUE-CUTTER SERVICE FROM NOVEMBER 1, 1904, THROUGH NOVEMBER 8, 1905, AND THAT, THEREFORE, HE SHOULD HAVE BEEN PAID ON THE BASIS OF THE SEVERAL RATES OF BASIC PAY PROVIDED FOR A CHIEF PETTY OFFICER CREDITED WITH OVER 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES MULTIPLIED BY 47 1/2 PERCENT (19 YEARS MULTIPLIED BY 2 1/2 PERCENT).

MR. OLIVER FIRST ENLISTED IN THE UNITED STATES NAVY ON NOVEMBER 30, 1907. WHEN HE WAS DISCHARGED ON NOVEMBER 29, 1911, HE HAD COMPLETED ONLY 3 YEARS, 11 MONTHS, AND 26 DAYS OF ACTIVE SERVICE BECAUSE OF THE FACT THAT HE WAS ABSENT WITHOUT LEAVE FOR A PERIOD OF 4 DAYS DURING THAT ENLISTMENT. HE AGAIN ENLISTED ON DECEMBER 1, 1911, AND WAS DISCHARGED ON NOVEMBER 30, 1915, HAVING COMPLETED 4 ADDITIONAL YEARS OF ACTIVE SERVICE. HE AGAIN ENLISTED FOR 4 YEARS ON DECEMBER 6, 1915, BUT AFTER HAVING COMPLETED 3 YEARS, 9 MONTHS, AND 1 DAY OF ACTIVE SERVICE, HE WAS DISCHARGED ON SEPTEMBER 6, 1919, TO REENLIST ON SEPTEMBER 7, 1919, FOR ANOTHER TERM OF 4 YEARS. HE WAS DISCHARGED ON JULY 21, 1922, AFTER HAVING COMPLETED 2 YEARS, 10 MONTHS, AND 15 DAYS OF ACTIVE SERVICE, AND HE WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON THAT DATE. AT THE TIME OF SUCH TRANSFER, HE WAS CREDITED WITH NAVAL SERVICE TOTALING 14 YEARS, 10 MONTHS, AND 15 DAYS, ONLY 14 YEARS, 7 MONTHS, AND 12 DAYS OF WHICH WAS ACTUAL ACTIVE SERVICE.

HIS TRANSFER TO THE FLEET NAVAL RESERVE WAS EFFECTED (1) UNDER THE ACT OF AUGUST 29, 1916, CH. 417, 39 STAT. 556, 589, WHICH PROVIDED, AMONG OTHER THINGS, THAT FOR ALL PURPOSES OF THE ACT ANY ENLISTMENT TERMINATED WITHIN 3 MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF ENLISTMENT BY SPECIAL ORDER OF THE SECRETARY OF THE NAVY SHOULD BE CONSIDERED AS 4 YEARS' SERVICE, AND (2) UNDER THE PROVISIONS OF THE ACT OF JULY 1, 1922, CH. 259, 42 STAT. 786, 799, WHICH PROVIDED PERTINENTLY---

"THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE

AFTER HE WAS RETIRED ON OCTOBER 1, 1937, HE SERVED ON ACTIVE DUTY FROM DECEMBER 12, 1941, TO SEPTEMBER 1, 1944, A PERIOD OF 2 YEARS, 8 MONTHS, AND 20 DAYS. THUS, AT THE TIME OF HIS RELEASE FROM SUCH ACTIVE DUTY, HIS ACTUAL ACTIVE NAVAL SERVICE TOTALED 17 YEARS, 4 MONTHS, AND 2 DAYS. HIS RATE AT THE TIME OF RELEASE FROM ACTIVE DUTY WAS CHIEF QUARTERMASTER AND THAT WAS THE HIGHEST RATE SATISFACTORILY HELD BY HIM.

UPON REVIEW, WE HAVE CONCLUDED THAT MR. OLIVER SHOULD BE CREDITED WITH HIS ACTIVE SERVICE OF 1 YEAR AND 8 DAYS IN THE U.S. REVENUE-CUTTER SERVICE IN COMPUTING HIS RETIRED PAY. ACCORDINGLY, HIS RETIRED PAY ACCOUNT WILL BE ADJUSTED FOR THE PERIOD BEGINNING AUGUST 5, 1947, ON THE BASIS THAT HE HAD COMPLETED 18 YEARS, 4 MONTHS, AND 10 DAYS OF ACTIVE SERVICE FOR RETIRED PAY PURPOSES. AS TO THAT PART OF HIS RETIRED PAY WHICH IS COMPUTED UNDER FORMULA (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, IT SHOULD BE NOTED THAT IT IS THERE PROVIDED THAT THE MONTHLY RETIRED PAY OF A MEMBER SHALL BE COMPUTED BY TAKING 2 1/2 PERCENT OF HIS APPLICABLE MONTHLY BASIC PAY AND MULTIPLYING IT BY THE NUMBER OF YEARS OF "ACTIVE SERVICE" CREDITABLE TO HIM AND THAT IN SUCH A COMPUTATION FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR. THE 2 MONTHS AND 29 DAYS OF CONSTRUCTIVE SERVICE CREDITED TO MR. OLIVER FOR PURPOSES OF TRANSFER TO THE FLEET NAVAL RESERVE UNDER THE ACT OF AUGUST 29, 1916, IN CONNECTION WITH HIS UNCOMPLETED ENLISTMENT ENTERED INTO ON DECEMBER 6, 1915, IS NOT CREDITABLE IN DETERMINING THE PERCENTAGE MULTIPLIER USED IN COMPUTING HIS RETIRED PAY UNDER SECTION 511 (B). SINCE HE HAD NOT COMPLETED 18 YEARS AND 6 MONTHS OF ACTIVE SERVICE, HE MAY NOT BE CONSIDERED AS HAVING COMPLETED 19 YEARS OF SERVICE FOR THE PURPOSE OF SUCH A COMPUTATION.