B-57924, SEP. 14, 1962

B-57924: Sep 14, 1962

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- WAS ALLOWED HARRY WILLIAM ALBRECHT. YOU ALLEGE THAT THIS CONTENTION IS FULLY SUPPORTED BY THE CONCLUSION OF THE COURT OF CLAIMS IN ITS DECISION IN THE CASE OF BAILEY (LEONARD. WHEREIN IT WAS STATED: "SINCE THE ACT (SECTION 202 OF THE NAVAL RESERVE ACT OF 1938) SPECIFICALLY PROVIDES "FOR ALL PURPOSES OF THIS ACT. " IT IS OBVIOUS THAT PLAINTIFF IS ENTITLED TO UTILIZE HIS CONSTRUCTIVE SERVICE IN COMPUTING HIS ACTIVE FEDERAL SERVICE. THIS IS THE LAW THAT WAS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT. THE QUESTION INVOLVED IN THE BAILEY (LEONARD) CASE WAS WHETHER RETIRED FLEET RESERVISTS COULD USE CONSTRUCTIVE SERVICE. TO WHICH THEY WERE ENTITLED BY REASON OF MINORITY OR SHORT-TERM ENLISTMENTS.

B-57924, SEP. 14, 1962

TO KING AND KING:

YOUR LETTER DATED AUGUST 7, 1962, REQUESTS RECONSIDERATION OF THE SETTLEMENTS OF OUR CLAIMS DIVISION DATED SEPTEMBER 25, 1961, AND JUNE 12, 1962, BY WHICH ADDITIONAL RETIRED PAY--- REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT DUE ON THE BASIS OF HIS COMMISSIONED WARRANT OFFICER GRADE AND THAT RECEIVED ON THE BASIS OF HIS ENLISTED RATING UNDER THE DECISION IN THE CLARK CASE, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960--- WAS ALLOWED HARRY WILLIAM ALBRECHT, CHIEF RADIOMAN, UNITED STATES NAVY, RETIRED.

YOU ASSERT THAT FOR THE PERIODS FROM NOVEMBER 1, 1946, THROUGH JULY 31, 1948, AND FROM JULY 1, 1952, THROUGH MAY 31, 1959, THE CLAIMANT'S RETIRED PAY SHOULD BE COMPUTED UPON THE "SAVED PAY" RATES FOR OVER 21 YEARS OF SERVICE RATHER THAN UPON THE RATES FOR OVER 18 YEARS OF SERVICE ALLOWED. YOU ALLEGE THAT THIS CONTENTION IS FULLY SUPPORTED BY THE CONCLUSION OF THE COURT OF CLAIMS IN ITS DECISION IN THE CASE OF BAILEY (LEONARD, PLAINTIFF NO. 21) V. UNITED STATES, CT.CL. NO. 505 59, DECIDED JULY 18, 1962, WHEREIN IT WAS STATED:

"SINCE THE ACT (SECTION 202 OF THE NAVAL RESERVE ACT OF 1938) SPECIFICALLY PROVIDES "FOR ALL PURPOSES OF THIS ACT," IT IS OBVIOUS THAT PLAINTIFF IS ENTITLED TO UTILIZE HIS CONSTRUCTIVE SERVICE IN COMPUTING HIS ACTIVE FEDERAL SERVICE. THIS IS THE LAW THAT WAS IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, AND UPON THE CITED AUTHORITY PLAINTIFF MAY UTILIZE HIS CONSTRUCTIVE SERVICE IN COMPUTING HIS PAY UNDER PART (A) OF THE CAREER COMPENSATION ACT. * * *.'

THE QUESTION INVOLVED IN THE BAILEY (LEONARD) CASE WAS WHETHER RETIRED FLEET RESERVISTS COULD USE CONSTRUCTIVE SERVICE, TO WHICH THEY WERE ENTITLED BY REASON OF MINORITY OR SHORT-TERM ENLISTMENTS, IN THE PERCENTAGE MULTIPLIER IN THE COMPUTATION OF THEIR RETIRED PAY UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829, AND THE COURT DECIDED THAT QUESTION IN THE NEGATIVE. SINCE THE SOLE QUESTION BEFORE THE COURT WAS THE USE OF CONSTRUCTIVE SERVICE IN THE PERCENTAGE MULTIPLE, UNDER SECTION 511 (B) OF THE 1949 LAW, THE QUOTED PORTION OF THE DECISION RELATING TO COMPUTATION OF THE PERCENTAGE MULTIPLE UNDER THE NAVAL RESERVE ACT OF 1938 PURSUANT TO WHICH HIS RETIRED PAY WAS COMPUTED ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT, IS MERELY A PART OF THE REASONING BY WHICH THE COURT REACHED ITS ANSWER TO THE QUESTION INVOLVED. THAT IS TO SAY, THE ONLY INTERPRETATION WHICH MAY BE PLACED ON THE QUOTED LANGUAGE IS THAT THE COURT RECOGNIZED ITS RULE IN THE WHITE DECISION, 121 CT.CL. 1, THAT CONSTRUCTIVE SERVICE 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 204, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993. THUS, WE CANNOT AGREE THAT BY SUCH CASUAL LANGUAGE THE COURT, WITHOUT MENTIONING THE PAY READJUSTMENT ACT OF 1942, HAS DETERMINED THAT YEARS OF SERVICE FOR THE PURPOSE OF BASE PAY AND LONGEVITY UNDER THAT ACT MAY INCLUDE CONSTRUCTIVE SERVICE UNDER MINORITY OR SHORT-TERM ENLISTMENTS. WE FULLY STATED OUR POSITION IN THIS REGARD IN OUR DECISION TO YOU OF OCTOBER 31, 1961, B-138416, IN THE CASE OF GIRARD C. POLITE.

SINCE MR. ALBRECHT'S RETIRED PAY PRIOR TO APRIL 1, 1955, WAS COMPUTED ON THE "SAVED PAY" BASIS OF ONE-HALF OF THE APPLICABLE RATE OF BASE PAY PLUS PERMANENT ADDITIONS, WITH PERCENTAGE INCREASE AS AUTHORIZED BY LAW, AND THEREAFTER HIS RETIRED PAY WAS COMPUTED UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949, HE IS NOT ENTITLED TO CREDIT IN THE BASIC PAY FACTOR FOR HIS CONSTRUCTIVE TIME IN DETERMINING HIS RATE OF RETIRED PAY.