B-160463, MAR. 2, 1967

B-160463: Mar 2, 1967

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FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19. WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY. YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE. YOU WERE SUBSEQUENTLY TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1. YOU WERE RECALLED TO ACTIVE DUTY DURING WORLD WAR II AND SUCH DUTY WAS TERMINATED IN MARCH 1945 BY VIRTUE OF A MEDICAL SURVEY DATED JANUARY 3. YOU WERE THEN SERVING AS A CHIEF BOATSWAIN'S MATE. YOU RECEIVED RETIRED PAY AT THE MAXIMUM RATES WHICH WERE PERMITTED TO BE PAID UNDER APPLICABLE ARMED SERVICES PAY LAWS. YOU BEGAN RECEIVING $175 PER MONTH WHICH WAS ONE-HALF OF THE ACTIVE DUTY PAY OF A MEMBER OF THE ARMED FORCES OF YOUR RANK AND YEARS OF SERVICE. YOU BECAME ENTITLED TO RECEIVE COST-OF-LIVING PERCENTAGE INCREASES THE FIRST OF WHICH WAS BASED ON THE RATE OF RETIRED PAY YOU WERE RECEIVING ON AUGUST 31.

B-160463, MAR. 2, 1967

TO MR. JOSEPH STEFFEN, JR.

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1966, ADDRESSED TO THE BUREAU OF NAVAL PERSONNEL, WHICH WAS FORWARDED TO OUR OFFICE FOR REPLY, WHEREIN YOU CLAIM ENTITLEMENT TO INCREASED RETIRED PAY AS A RE- RETIRED DISABLED ENLISTED MAN AS THE RESULT OF SERVICE IN THE UNITED STATES NAVY.

OUR FILES SHOW THAT YOU ENLISTED IN THE NAVY ON JUNE 19, 1905, AND THAT AFTER SERVING ALMOST CONTINUOUSLY ON ACTIVE DUTY UNTIL 1922, YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE. YOU WERE SUBSEQUENTLY TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1, 1935, IN THE GRADE OF CHIEF TORPEDOMAN, HAVING COMPLETED 30 YEARS OF ACTIVE AND INACTIVE NAVAL SERVICE. YOU WERE RECALLED TO ACTIVE DUTY DURING WORLD WAR II AND SUCH DUTY WAS TERMINATED IN MARCH 1945 BY VIRTUE OF A MEDICAL SURVEY DATED JANUARY 3, 1945, WHICH DISCLOSED A DISABLING PHYSICAL CONDITION (ARTERIOSCLEROSIS, GENERAL). YOU WERE THEN SERVING AS A CHIEF BOATSWAIN'S MATE.

YOU CONTEND THAT IN ADDITION TO RETIRED PAY YOU SHOULD BE RECEIVING "DISABILITY COMPENSATION AND EXTRA PAY FOR THE NAVY CROSS" CITATION EARNED BY YOU DURING WORLD WAR I. YOU CITE OUR DECISION 46 COMP. GEN. -, B- 149487, DATED JULY 8, 1966, AS WELL AS PUB.L. 89-311, 79 STAT. 1154, AS HAVING APPLICATION TO YOUR CASE.

YOUR RETIRED PAY ACCOUNT SHOWS THAT YOU RECEIVED AN ADJUSTMENT IN RETIRED PAY UNDER THE CASE OF BAILEY ET AL. V. UNITED STATES, CT.CL. NO. 588-52, FOR THE PERIOD ENDING SEPTEMBER 30, 1954. FROM THAT DATE UNTIL SEPTEMBER 30, 1963, YOU RECEIVED RETIRED PAY AT THE MAXIMUM RATES WHICH WERE PERMITTED TO BE PAID UNDER APPLICABLE ARMED SERVICES PAY LAWS. EFFECTIVE OCTOBER 1, 1963, YOU BEGAN RECEIVING $175 PER MONTH WHICH WAS ONE-HALF OF THE ACTIVE DUTY PAY OF A MEMBER OF THE ARMED FORCES OF YOUR RANK AND YEARS OF SERVICE, BASED ON THE RATES OF ACTIVE DUTY PAY IN EFFECT ON JUNE 1, 1958, AS PRESCRIBED IN PUB.L. 85 422, 72 STAT. 122, 123. SEE SECTION 5 (C) (1), PUB.L. 88-132, 77 STAT. 213. YOU CONTINUED RECEIVING THIS RATE OF RETIRED PAY UNTIL SEPTEMBER 1, 1965.

PUBLIC LAW 89-132, EFFECTIVE SEPTEMBER 1, 1965, ESTABLISHED A NEW BASIS FOR COMPUTING RETIRED PAY RAISES FOR PERSONS IN YOUR SITUATION. BY VIRTUE OF SECTION 5 (B) OF THAT ACT --- AMENDING 10 U.S.C 2405A (B/ -- YOU BECAME ENTITLED TO RECEIVE COST-OF-LIVING PERCENTAGE INCREASES THE FIRST OF WHICH WAS BASED ON THE RATE OF RETIRED PAY YOU WERE RECEIVING ON AUGUST 31, 1965. THESE INCREASES WERE 4.4 PERCENTUM EFFECTIVE SEPTEMBER 1, 1965, AND 3.7 PERCENTUM EFFECTIVE DECEMBER 1, 1966. ON THAT BASIS, IT APPEARS THAT THE AMOUNT TO WHICH YOU ARE CURRENTLY ENTITLED IS $189.25 PER MONTH.

IT IS NOT ENTIRELY CLEAR AS TO WHAT YOU HAVE IN MIND WHEN YOU REFER TO "DISABILITY PENSATION.' SUCH COMPENSATION IS NOT RETIRED PAY AND IS PAID BY THE VETERANS ADMINISTRATION. SECTION 3105 OF TITLE 38, U.S. CODE, PROVIDES THAT A PERSON WHO IS ELIGIBLE TO RECEIVE A PENSION OR COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION MAY RECEIVE SUCH PENSION OR COMPENSATION BY WAIVING SO MUCH OF HIS RETIRED PAY AS EQUALS THE AMOUNT OF PENSION OR COMPENSATION PAID BY THE VETERANS ADMINISTRATION. OUR FILES CONTAIN NO INFORMATION WHICH SUGGESTS THAT YOU HAVE WAIVED ANY OF YOUR RETIRED PAY IN ORDER TO RECEIVE DISABILITY COMPENSATION. PUBLIC LAW 89-311, WHICH YOU CITE AS APPLICABLE, PROVIDES STATUTORY INCREASES IN DISABILITY COMPENSATION BENEFITS PAYABLE BY THE VETERANS ADMINISTRATION. ANY INQUIRIES WHICH YOU HAVE IN THIS REGARD SHOULD BE DIRECTED TO THAT OFFICE. PUBLIC LAW 88-311 HAS NOTHING TO DO WITH INCREASES IN RETIRED PAY.

CONCERNING THE MATTER OF EXTRA RETIRED PAY FOR RECEIPT OF THE NAVY CROSS FOR SERVICE DURING WORLD WAR I, SECTION 3 OF THE ACT OF FEBRUARY 4, 1919, CH. 14, 40 STAT. 1056, PROVIDED FOR THIS AWARD FOR "EXTRAORDINARY HEROISM" OR "DISTINGUISHED SERVICE.' THE BASIS OF YOUR CLAIM APPEARS TO BE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1178, WHICH PROVIDED FOR A 10 PERCENT INCREASE IN RETIRED PAY FOR NAVY ENLISTED MEN WHO WERE CITED FOR "EXTRAORDINARY HEROISM" IN LINE OF DUTY. SINCE THE CITATION UNDER WHICH YOU WERE AWARDED THE NAVY CROSS STATED THAT YOUR AWARD WAS FOR "DISTINGUISHED SERVICE," NOT EXTRAORDINARY HEROISM, YOU DID NOT QUALIFY FOR THIS INCREASE IN RETIRED PAY. THE SECRETARY OF THE NAVY SO HELD IN EIGHTH ENDORSEMENT OF JUNE 21, 1943, OF WHICH YOU MUST HAVE BEEN INFORMED AT THAT TIME.

AS TO THE APPLICABILITY OF OUR DECISION 46 COMP. GEN. --, B-149487, DATED JULY 8, 1966, YOU ARE ADVISED THAT IN SUCH CASE INVOLVES A SITUATION WHOLLY UNRELATED TO THE FACTS IN YOUR CASE, BEING CONCERNED WITH PAYMENT OF RETIRED PAY IN THE HIGHEST GRADE SATISFACTORILY HELD BY THE MEMBER INVOLVED. YOU ARE RECEIVING RETIRED PAY BASED ON THE HIGHEST GRADE WHICH YOU HELD WHILE SERVING IN THE ARMED FORCES AND THE MAXIMUM LENGTH OF SERVICE CREDITABLE TO YOU.

WITH RESPECT TO YOUR INQUIRY AS TO WHETHER YOU ARE "ONE OF THE ENLISTED MEN WHO WILL BENEFIT FROM THE COMPTROLLER GENERAL'S DECISION REGARDING PAY TO MEN WHO HAVE BEEN RETIRED ONCE, RECALLED TO ACTIVE DUTY, AND RETIRED AGAIN WITH DISABILITY," YOU ARE INFORMED THAT WE ARE AWARE OF NO PROVISION OF LAW UNDER WHICH YOU QUALIFIED FOR INCREASED RETIRED PAY BECAUSE OF THE FACT THAT YOU WERE RELEASED TO INACTIVE DUTY ON THE RETIRED LIST IN 1945 BECAUSE OF ARTERIOSCLEROSIS, GENERAL.

ON THE BASIS OF THE RECORD BEFORE US, IT APPEARS THAT YOU ARE RECEIVING ALL THE RETIRED PAY TO WHICH YOU ARE ENTITLED AND WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.