Skip to main content

B-130313, JUL. 8, 1960

B-130313 Jul 08, 1960
Jump To:
Skip to Highlights

Highlights

TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. THE CLAIM WAS DISALLOWED BECAUSE AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE IN 1918 SHANK'S ACTIVE SERVICE (EXCLUDING 4 MONTHS AND 2 DAYS UNAUTHORIZED ABSENCE) WAS ONLY 15 YEARS. SINCE THE NAVY DEPARTMENT HAS TAKEN THE POSITION THAT SHANK'S RECORDS SHOULD NOT BE CORRECTED BECAUSE HE IS CONSIDERED AS HAVING BEEN ORIGINALLY TRANSFERRED TO THE FLEET RESERVE WITH CREDIT FOR 16 OR MORE YEARS' SERVICE. IF HE WAS TRANSFERRED AND CREDITED WITH 16 YEARS' NAVAL SERVICE FOR THE PURPOSE OF TRANSFER BY THE SECRETARY OF THE NAVY. WHICH WAS BASED ON THE HOLDING IN SANDERS V. WAS FIRST SUBMITTED HERE ON FEBRUARY 7. WAS DISALLOWED BY OFFICE SETTLEMENT DATED MARCH 15.

View Decision

B-130313, JUL. 8, 1960

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1960, WRITTEN ON BEHALF OF LOUIS NELSON SHANK, REQUESTING THAT WE REVIEW OUR DISALLOWANCE OF HIS CLAIM, SUBMITTED ON JANUARY 28, 1960, FOR INCREASED RETIRED PAY, COMPUTED ON THE ONE-HALF BASE PAY FORMULA UNDER THE SANDERS DOCTRINE AS A MEMBER WHO HAD SUFFICIENT ACTIVE DUTY AFTER TRANSFER TO THE FLEET NAVAL RESERVE TO EQUAL, WHEN COMBINED WITH ACTIVE SERVICE PRIOR TO TRANSFER, A TOTAL OF MORE THAN 19 YEARS AND 6 MONTHS OF ACTIVE SERVICE.

THE CLAIM WAS DISALLOWED BECAUSE AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE IN 1918 SHANK'S ACTIVE SERVICE (EXCLUDING 4 MONTHS AND 2 DAYS UNAUTHORIZED ABSENCE) WAS ONLY 15 YEARS, 8 MONTHS, AND 18 DAYS, AND HIS TOTAL ACTIVE SERVICE, INCLUDING ACTIVE SERVICE OF 3 YEARS, 7 MONTHS, AND 1 DAY (DURING WORLD WAR II), AMOUNTED TO LESS THAN 19 YEARS AND 6 MONTHS. YOU STATE THAT, SINCE THE NAVY DEPARTMENT HAS TAKEN THE POSITION THAT SHANK'S RECORDS SHOULD NOT BE CORRECTED BECAUSE HE IS CONSIDERED AS HAVING BEEN ORIGINALLY TRANSFERRED TO THE FLEET RESERVE WITH CREDIT FOR 16 OR MORE YEARS' SERVICE, AND SINCE BOTH THE NAVAL RESERVE ACTS OF 1925 AND 1938 CONTAINED A PROVISION MAKING THE DETERMINATION BY THE SECRETARY OF THE NAVY OF A MAN'S RATE AND LENGTH OF SERVICE AT TIME OF TRANSFER FINAL AND CONCLUSIVE, SUCH POSITION SHOULD BE BINDING ON THIS OFFICE. YOU STATE FURTHER, IN EFFECT, THAT THE DECISION OF THE COURT IN MOJICA ET AL. V. UNITED STATES (SENST, PLAINTIFF NO. 60), COURT OF CLAIMS NO. 264-52, DECIDED JANUARY 20, 1960, SHOULD PROVIDE SUFFICIENT AUTHORITY FOR CREDITING A MAN WITH HAVING 16 YEARS' CONSTRUCTIVE SERVICE FOR TRANSFER, IF HE WAS TRANSFERRED AND CREDITED WITH 16 YEARS' NAVAL SERVICE FOR THE PURPOSE OF TRANSFER BY THE SECRETARY OF THE NAVY.

THE CLAIM, WHICH WAS BASED ON THE HOLDING IN SANDERS V. UNITED STATES, 120 C.CLS. 501, WAS FIRST SUBMITTED HERE ON FEBRUARY 7, 1955, AND WAS DISALLOWED BY OFFICE SETTLEMENT DATED MARCH 15, 1956, WHICH DISALLOWANCE WAS SUSTAINED IN REVIEW HERE ON APRIL 5, 1957, B-130313. CLAIM WAS RESUBMITTED ON JANUARY 28, 1960, PRINCIPALLY ON THE BASIS OF THE SENST DECISION. SUCH CLAIM WAS DISALLOWED BY OUR DECISION B 141995, DATED MARCH 9, 1960. YOU WERE ADVISED AT THAT TIME OF THE BASIS FOR OUR VIEW THAT THE SENST CASE THEN PROVIDED NO SUFFICIENT LEGAL BASIS TO EXTEND THE RULE THEREOF TO OTHER MEMBERS OF THE FLEET RESERVE.

BY DECISION B-100610, DATED APRIL 22, 1960, WE STATED THAT WE HAD DECIDED TO FOLLOW THE RULE ESTABLISHED IN THE SENST DECISION IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. IN VIEW OF THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 23, 1930, 46 STAT. 375, WHICH IN PRINCIPLE ARE SIMILAR TO THE STATUTORY PROVISIONS ON WHICH THE SENST CASE WAS DECIDED, SHANK WILL BE CONSIDERED TO HAVE HAD 16 YEARS' ACTIVE SERVICE AT THE TIME OF HIS TRANSFER IN 1918, THEREBY BRINGING HIM WITHIN THE PRINCIPLE ESTABLISHED BY THE SENST DECISION.

THE CLAIM HAS BEEN RETURNED TO THE CLAIMS DIVISION OF THIS OFFICE FOR FURTHER CONSIDERATION IN ACCORDANCE WITH THE RULE OF THE SENST CASE, WITH INSTRUCTIONS TO ALLOW THE CLAIM, IF OTHERWISE PROPER.

GAO Contacts

Office of Public Affairs