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B-129535, DEC. 17, 1956

B-129535 Dec 17, 1956
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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. CHRISTIAN'S CLAIM WAS DISALLOWED SINCE IT APPEARED THAT HE HAD BEEN TRANSFERRED TO THE FLEET RESERVE WITH "EXACTLY SIXTEEN YEARS" SERVICE CREDITABLE FOR TRANSFER PURPOSES" RATHER THAN . ASIDE FROM THE FACT THAT WE HAVE NOT. WAS NOT A MINORITY ENLISTMENT WHICH ENTITLED MR. INASMUCH AS THOSE PROVISIONS APPEAR TO HAVE BECOME INEFFECTIVE AFTER JANUARY 1. WE HAVE SERIOUS DOUBT THAT THE BRACHER CASE. IS AUTHORITY FOR FAVORABLE CONSIDERATION OF THE PRESENT CHRISTIAN CASE. CHRISTIAN WAS LEGALLY TRANSFERRED TO THE UNITED STATES FLEET NAVAL RESERVE ON NOVEMBER 28.

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B-129535, DEC. 17, 1956

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1956, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF MR. STEPHEN A. CHRISTIAN FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE FOR THE PERIOD OCTOBER 1, 1945, THROUGH OCTOBER 31, 1946. BY OUR CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 14, 1955, MR. CHRISTIAN'S CLAIM WAS DISALLOWED SINCE IT APPEARED THAT HE HAD BEEN TRANSFERRED TO THE FLEET RESERVE WITH "EXACTLY SIXTEEN YEARS" SERVICE CREDITABLE FOR TRANSFER PURPOSES" RATHER THAN ,MORE THAN 16 YEARS" SERVICE" AS PROVIDED IN SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 854 (G).

IN YOUR LETTER YOU REFER TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF ABAD, ET AL. (MARY AGNES BRACHER, ADMINISTRATRIX OF THE ESTATE OF WALTER EVANS BRACHER, PLAINTIFF NO. 43) V. UNITED STATES, NO. 49667, DECIDED OCTOBER 2, 1956, WHICH OVERRULED THE CASE OF LIBERTY V. UNITED STATES, 120 C.CLS. 274, WHEREIN THE COURT HAD DECIDED THAT SECTION 208, SUPRA, APPLIED ONLY TO MEMBERS OF THE FLEET RESERVE WHO HAD COMPLETED MORE THAN 16 YEARS OF ACTIVE SERVICE WHEN TRANSFERRED TO THE RESERVE.

ASIDE FROM THE FACT THAT WE HAVE NOT, AS YET, EXPRESSED AGREEMENT WITH THE MAJORITY OPINION IN THE BRACHER CASE, BUT PRESENTLY LEAN MORE FAVORABLY TO THE UNANIMOUS OPINION RENDERED BY THE SAME COURT IN THE LIBERTY CASE, SUPRA, INVOLVING THE SAME SUBJECT MATTER, TOGETHER WITH THE OPINION IN THE ANALOGOUS CASE OF LAMBERT V. UNITED STATES, 121 C.CLS. 333, WE NOW FIND, UPON EXAMINATION OF THE NAVAL RECORD OF MR. CHRISTIAN, THAT UPON TRANSFER TO THE UNITED STATES FLEET NAVAL RESERVE, EFFECTIVE NOVEMBER 28, 1923, HE HAD COMPLETED ONLY 15 YEARS, 5 MONTHS AND 28 DAYS OF SERVICE, BASED UPON AN ENLISTED NAVAL RECORD AS FOLLOWS:

TABLE

DATE OF ENLISTMENT DATE OF DISCHARGE ACTIVE SERVICE

NOVEMBER 14, 1907 NOVEMBER 13, 1911 3 YRS., 11 MOS.

26 DAYS (TIME LOST

ABSENT OVER LEAVE,

4 DAYS)

DATE OF ENLISTMENT DATE OF DISCHARGE ACTIVE SERVICE

NOVEMBER 27, 1911 MAY 28, 1923 11 YEARS., 6

MOS., 2 DAYS

THE FIRST ENLISTMENT BEGINNING NOVEMBER 14, 1907, BEING FOR FOUR YEARS, WAS NOT A MINORITY ENLISTMENT WHICH ENTITLED MR. CHRISTIAN TO A CREDIT FOR CONSTRUCTIVE SERVICE, AND THE PERIOD OF SERVICE WHICH BEGAN NOVEMBER 27, 1911, AND TERMINATED MAY 28, 1923, DOES NOT APPEAR TO BE AN ENLISTMENT TERMINATED WITHIN THREE MONTHS OF EXPIRATION SO AS TO BE COUNTED AS 12 YEARS OF NAVAL SERVICE UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 590, THE STATUTE IN EFFECT AT THE TIME OF MR. CHRISTIAN'S TRANSFER. THERE HAS NOT BEEN OVERLOOKED THE PROVISION CONTAINED IN THE ACT OF JULY 1, 1922, 42 STAT. 799, 800, WHICH PERMITTED TRANSFER TO THE UNITED STATES FLEET NAVAL RESERVE OF CERTAIN MEN WHO HAD COMPLETED LESS THAN 16 YEARS OF NAVAL SERVICE, BUT INASMUCH AS THOSE PROVISIONS APPEAR TO HAVE BECOME INEFFECTIVE AFTER JANUARY 1, 1923, WE HAVE SERIOUS DOUBT THAT THE BRACHER CASE, IN ANY EVENT, IS AUTHORITY FOR FAVORABLE CONSIDERATION OF THE PRESENT CHRISTIAN CASE. IF THIS PREMISE BE WELL FOUNDED THEN, ACTUALLY, QUESTION NOW MAY ARISE WHETHER MR. CHRISTIAN WAS LEGALLY TRANSFERRED TO THE UNITED STATES FLEET NAVAL RESERVE ON NOVEMBER 28, 1923. IN ANY EVENT, THE RECORD PRESENTLY BEFORE US DOES NOT REFLECT SUCH AN ANALOGY AS WOULD JUSTIFY APPLICATION OF THE COURT'S CONCLUSION IN THE BRACHER CASE, EVEN ASSUMING, WITHOUT AT THIS TIME DECIDING, THAT SUCH CONCLUSION EVENTUALLY MAY BE ACCEPTED AS CONTROLLING, CONTRARY TO THE LIBERTY AND LAMBERT CASES.

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