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B-147383, OCT. 31, 1961

B-147383 Oct 31, 1961
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BALLARD DAUGHERTY: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30. WERE DISCHARGED MARCH 24. WERE DISCHARGED JULY 31. WERE DISCHARGED JULY 31. WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 12. IT APPEARS THAT YOUR TRANSFER WAS EFFECTED PURSUANT TO THE ACT OF JULY 1. OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE. 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 THE REPORT FURTHER SHOWS THAT YOU WERE RECALLED TO ACTIVE DUTY FOR THE PERIOD JUNE 23. THAT YOU WERE RETIRED SEPTEMBER 1. YOU WERE AGAIN RECALLED TO ACTIVE DUTY AND SERVED FROM AUGUST 28. THAT TO WHICH YOU WERE ENTITLED FOR THE PERIOD UNDER THE RULE OF THE SANDERS DECISION.

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B-147383, OCT. 31, 1961

TO MR. BALLARD DAUGHERTY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 30, 1961, AND ENCLOSURES, RELATIVE TO YOUR CLAIM AS A RETIRED FLEET RESERVIST FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF BASE PAY RATHER THAN ONE-THIRD BASE PAY FOR THE PERIOD FROM JANUARY 18, 1944, THROUGH SEPTEMBER 30, 1949.

THE REPORT OF YOUR NAVAL SERVICE FURNISHED TO US BY THE DEPARTMENT OF THE NAVY SHOWS THAT YOU ENTERED INTO A MINORITY ENLISTMENT IN THE NAVY ON FEBRUARY 5, 1909, AND WERE DISCHARGED MARCH 24, 1912; THAT YOU REENLISTED OCTOBER 28, 1912, AND WERE DISCHARGED JULY 31, 1916; THAT YOU REENLISTED AUGUST 1, 1916, AND WERE DISCHARGED JULY 31, 1920; THAT YOU REENLISTED AUGUST 2, 1920, AND WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 12, 1922, AS A CHIEF QUARTERMASTER. WHILE AT THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU HAD A TOTAL OF ONLY 12 YEARS, 10 MONTHS AND 5 DAYS OF ACTUAL NAVAL SERVICE, IT APPEARS THAT YOUR TRANSFER WAS EFFECTED PURSUANT TO THE ACT OF JULY 1, 1922, 42 STAT. 799-800, WHICH PROVIDED IN PERTINENT PART, AS FOLLOWS:

"* * * 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

THE REPORT FURTHER SHOWS THAT YOU WERE RECALLED TO ACTIVE DUTY FOR THE PERIOD JUNE 23, 1926, TO JUNE 6, 1933, AND THAT YOU WERE RETIRED SEPTEMBER 1, 1938. YOU WERE AGAIN RECALLED TO ACTIVE DUTY AND SERVED FROM AUGUST 28, 1941, TO JANUARY 18, 1944. THUS, THE TWO PERIODS OF ADDITIONAL ACTIVE DUTY, AGGREGATING 9 YEARS, 4 MONTHS AND 5 DAYS WHEN ADDED TO THE TOTAL OF YOUR ACTUAL ACTIVE DUTY PRIOR TO TRANSFER TO THE FLEET NAVAL RESERVE GAVE YOU 22 YEARS, 2 MONTHS AND 10 DAYS OF ACTUAL SERVICE FOR RETIRED PAY PURPOSES.

BY LETTER DATED MARCH 19, 1957, YOU PRESENTED CLAIM UNDER THE SANDERS CASE (120 CT.CL. 501) FOR ADJUSTMENT OF YOUR RETIRED PAY ON THE BASIS OF ONE-HALF BASE PAY. OUR CLAIMS DIVISION, BY SETTLEMENT OF SEPTEMBER 19, 1960, DETERMINED THAT YOU HAD CREDITABLE SERVICE OF 22 YEARS, 2 MONTHS, AND 10 DAYS UNDER THE RULE OF THAT DECISION FOR RETIRED PAY PURPOSES, AND ACCORDINGLY, ALLOWED YOU THE AMOUNT OF $795.67. THAT AMOUNT REPRESENTED THE DIFFERENCE BETWEEN THE RETIRED PAY RECEIVED BY YOU DURING THE PERIOD MAY 3, 1947, THROUGH SEPTEMBER 30, 1949, AT THE RATE OF $112.75 PER MONTH, AND THAT TO WHICH YOU WERE ENTITLED FOR THE PERIOD UNDER THE RULE OF THE SANDERS DECISION, ON THE BASIS OF OVER 21 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, $140.25 PER MONTH. NO ALLOWANCE WAS MADE TO COVER THE PERIOD PRIOR TO MAY 3, 1947, FOR THE REASON THAT, SINCE YOUR CLAIM DATED MARCH 19, 1957, WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL MAY 3, 1957, THERE WAS FOR APPLICATION IN YOUR CASE THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

IN YOUR LETTER DATED SEPTEMBER 30, 1961, YOU REQUEST, IN EFFECT, THAT YOU BE GIVEN A CONSTRUCTIVE CREDIT OF 16 YEARS' SERVICE AT THE TIME YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 12, 1922, PURSUANT TO THE DECISION OF THE COURT OF CLAIMS IN MOJICA V. UNITED STATES, CT.CL.NO. 264- 52, DECIDED JANUARY 20, 1960, WHICH SERVICE, WHEN ADDED TO YOUR SUBSEQUENT ACTIVE SERVICE, WOULD GIVE YOU A TOTAL OF 25 YEARS FOR COMPUTING YOUR RETIRED PAY ON THE 2 1/2 PERCENT FORMULA PRESCRIBED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 60 STAT. 993, 34 U.S.C. 854C (1946 EDITION). HOWEVER, UNDER SUCH COMPUTATION YOU WOULD ONLY BE ENTITLED TO RETIRED PAY AT THE RATE OF $139.22 PER MONTH ).625 TIMES $222.75), WHEREAS UNDER THE RULE OF THE SANDERS CASE AND OUR DECISION OF APRIL 22, 1960, B- 100610, REPORTED IN 39 COMP. GEN. 720, YOU WERE PAID AT THE RATE OF $140.25 PER MONTH ($82.50 PLUS $57.75), BASED UPON ONE-HALF BASE PAY OF YOUR RATING PLUS THE PERMANENT ADDITIONS ALLOWABLE THEREUNDER BECAUSE OF LONGEVITY, FOR THE PERIOD MAY 3, 1947, THROUGH SEPTEMBER 30, 1949, IN OUR SETTLEMENT. AS INDICATED, YOU WERE CREDITED 16 YEARS' SERVICE AT THE TIME YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE FOR THE PURPOSE OF DETERMINING YOUR ELIGIBILITY FOR THE DIFFERENCE IN THE RETIRED PAY CLAIMED UNDER THE SANDERS DECISION. HOWEVER, SEE 34 U.S.C. 854A (1946 EDITION) AND SECTION 9 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, AS AMENDED. UNDER THE PERTINENT STATUTORY PROVISIONS, THE ADDITIONAL SERVICE CLAIMED MAY NOT BE INCLUDED FOR LONGEVITY PURPOSES IN THE COMPUTATION OF YOUR RETIRED PAY.

AS POINTED OUT, YOUR CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD PRIOR TO MAY 3, 1947, IS SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH BARS THE CONSIDERATION OF "EVERY" CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE--- WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE--- IF SUCH CLAIM IS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. THEREFORE, THAT PORTION OF YOUR CLAIM MAY NOT BE CONSIDERED BY OUR OFFICE.

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