B-90823, NOV. 13, 1957

B-90823: Nov 13, 1957

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ATTORNEY AT LAW: THERE IS PRESENTED IN YOUR LETTER OF JULY 22. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12. OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THE HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12. WAS ALLOWED TO INCLUDE. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511. IT SEEMS PERTINENT TO INVITE YOUR ATTENTION AT THIS POINT TO THE FACT THAT THE RATE OF MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR A LIEUTENANT COLONEL (OFFICER PAY GRADE 0 5) WITH OVER 30 CUMULATIVE YEARS OF SERVICE IS THE SAME RATE AS THAT PRESCRIBED FOR SUCH AN OFFICER WITH OVER 26 BUT NOT OVER 30 CUMULATIVE YEARS OF SERVICE.

B-90823, NOV. 13, 1957

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR LIEUTENANT COLONEL GEORGE H. SHEA, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 2, 1954, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASE OF WILLIS A. HEDDEN V. UNITED STATES, C.CLS. NO. 156-55.

OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THE HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU, B-119312, OCTOBER 14, 1957, ON THE CLAIM OF MAJOR PRICE W. BEEBE, U.S. ARMY, RETIRED. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12, 1957, THE PLAINTIFF, HEDDEN, WAS ALLOWED TO INCLUDE, FOR THE PURPOSE OF DETERMINING THE "ACTIVE SERVICE" FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE 1949 LAW, ONLY THAT PORTION OF HIS NATIONAL GUARD SERVICE PRIOR TO JUNE 3, 1916, WHICH REPRESENTED THE THREE TEN-DAY PERIODS OF ACTIVE DUTY TRAINING THAT HE PERFORMED UNDER AUTHORITY OF THE DICK ACT OF 1903. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511.

IN THE INSTANT CASE THE RECORD INDICATES THAT LIEUTENANT COLONEL SHEA HAS OVER 26 CUMULATIVE YEARS (27 YEARS AND 12 DAYS) OF SERVICE (ACTIVE AND INACTIVE) FOR THE PURPOSE OF DETERMINING THE RATE OF MONTHLY BASIC PAY TO BE USED IN COMPUTING HIS RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. THE RECORD INDICATES THAT HE HAS 23 YEARS, 9 MONTHS, AND 2 DAYS OF ACTIVE SERVICE WHICH ENTITLES HIM TO AN "ACTIVE SERVICE" FACTOR OF "24" FOR THE PURPOSES OF METHOD (B). UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND BASED ON THE FORMULA SET FORTH IN METHOD (B), SECTION 511, LIEUTENANT COLONEL SHEA WOULD BE ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 26 BUT NOT OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 24 (REPRESENTING HIS "ACTIVE SERVICE" FACTOR).

IT SEEMS PERTINENT TO INVITE YOUR ATTENTION AT THIS POINT TO THE FACT THAT THE RATE OF MONTHLY BASIC PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR A LIEUTENANT COLONEL (OFFICER PAY GRADE 0 5) WITH OVER 30 CUMULATIVE YEARS OF SERVICE IS THE SAME RATE AS THAT PRESCRIBED FOR SUCH AN OFFICER WITH OVER 26 BUT NOT OVER 30 CUMULATIVE YEARS OF SERVICE. HENCE, WHILE ADDING THE PERIOD FROM DECEMBER 1, 1933, TO JUNE 2, 1941, INCLUSIVE, 7 YEARS, 6 MONTHS, AND 2 DAYS, THAT LIEUTENANT COLONEL SHEA WAS ON THE RETIRED LIST IN AN INACTIVE STATUS TO 27 YEARS AND 12 DAYS (SEE ABOVE) WOULD INCREASE THE TOTAL OF HIS CUMULATIVE YEARS OF SERVICE TO OVER 30, NO INCREASE WOULD OCCUR IN THE AMOUNT OF HIS RETIRED PAY COMPUTED UNDER METHOD (B) OF SECTION 511.

YOU DO NOT ALLEGE IN YOUR LETTER OF JULY 22, 1957, THAT LIEUTENANT COLONEL SHEA HAD ANY PERIOD OR PERIODS OF ACTIVE SERVICE IN THE NATIONAL GUARD FOR WHICH HE HAS NOT BEEN GIVEN FULL CREDIT IN COMPUTING HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER METHOD (B), SECTION 511 OF THE 1949 LAW. ALSO, IT FURTHER APPEARS THAT THE AMOUNT OF RETIRED PAY THAT WOULD BE DUE HIM COMPUTED UNDER METHOD (B) OF SECTION 511, AND,ALSO THE AMOUNT OF RETIRED PAY TO WHICH HE WOULD BE ENTITLED COMPUTED ON THE PERCENTAGE OF HIS DISABILITY (70 PERCENTUM) IN THE MANNER PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 IS LESS THAN THE AMOUNT HE HAS RECEIVED EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AND AT THE RATES AUTHORIZED BY THE PERTINENT PROVISIONS OF LAW WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL SUBSEQUENT INCREASES THERETO.

ACCORDINGLY, THE DISALLOWANCES OF HIS CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 2, 1954, IS SUSTAINED.