B-147383, JAN. 23, 1964

B-147383, JAN. 23, 1964

TO MR. BALLARD DAUGHERTY, USN, RETIRED:

YOUR LETTER OF OCTOBER 14, 1963, ADDRESSED TO THE OFFICER IN CHARGE, U.S. NAVY FINANCE CENTER, CLEVELAND 14, OHIO, RELATIVE TO ADJUSTMENT IN YOUR RETIRED PAY, HAS BEEN FORWARDED TO THIS OFFICE AS AN APPEAL FROM THE DISALLOWANCE OF YOUR CLAIM FOR INCREASED RETIRED PAY BY OUR CLAIMS DIVISION UNDER DATE OF JULY 10, 1963.

YOU REQUEST ADJUSTMENT OF YOUR RETIRED PAY TO 75 PERCENT OF THE ACTIVE DUTY PAY OF YOUR GRADE WITH MAXIMUM LONGEVITY CREDIT BECAUSE YOU WERE RELEASED FOR PHYSICAL DISABILITY IN 1944 AND YOU WERE RECEIVING ACTIVE DUTY PAY BASED ON 30 CUMULATIVE YEARS OF SERVICE, ACTIVE AND INACTIVE, AT THAT TIME. THE RECORD SHOWS THAT YOU HAD BEEN RECALLED TO ACTIVE DUTY FROM A RETIRED STATUS ON AUGUST 28, 1941. IT APPEARS THE BENEFITS CLAIMED BY YOU ARE BASED ON THE COURT OF CLAIMS DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957). THE COURT RULES THEREIN THAT IN DETERMINING THE PROPER RATE OF BASIC PAY TO BE USED IN COMPUTING THE RETIRED PAY OF A FLEET RESERVIST WHO WAS RETIRED FOR PHYSICAL DISABILITY AND WHO QUALIFIED TO RECEIVE DISABILITY RETIRED PAY ON AND AFTER OCTOBER 1, 1949, UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, BY MEANS OF TIMELY ELECTION UNDER SECTION 411 OF THAT ACT, HIS INACTIVE TIME IN THE FLEET RESERVE SHOULD BE INCLUDED.

ON NOVEMBER 7, 1962, THE COURT OF CLAIMS RENDERED A DECISION IN THE CASE OF PAUL F. FORSTER (PLAINTIFF NO. 13 IN AFLAGUE, ET AL. V. UNITED STATES, CT.CL.NO. 212-56), GEORGE C. ELLIS (PLAINTIFF NO. 2 IN COBB, ET AL. V. UNITED STATES, CT.CL.NO. 430-56) AND FRANK BRIGGS WILSON V. UNITED STATES, CT.CL.NO. 465-59, FORMER FLEET RESERVISTS RETIRED FOR PHYSICAL DISABILITY WHO WERE CLAIMING THE BENEFITS OF THE SELIGA DECISION. SINCE THE PLAINTIFF WILSON IN 1951 HAD REQUESTED THE NAVY TO EVALUATE HIS DISABILITY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT AND THE NAVY HAD DENIED HIS REQUEST, THE COURT HELD THAT HE HAD TAKEN SUFFICIENT ACTION TOWARD MAKING AN ELECTION, TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THAT ACT WITHIN THE FIVE YEAR LIMITATION PERIOD ENDING SEPTEMBER 30, 1954, FIXED IN SECTION 411. THE PLAINTIFFS FORSTER AND ELLIS MADE NO SUCH REQUEST AND THE COURT HELD THEY WERE NOT ENTITLED TO THE BENEFITS OF THE SELIGA DECISION BECAUSE THEY HAD NOT MADE AN ELECTION PRIOR TO OCTOBER 1, 1954.

YOU STATE THAT YOU WROTE TO THE NAVY IN 1950 AND REQUESTED THAT YOU BE RETIRED FOR DISABILITY BUT WE HAVE NOT RECEIVED A COPY OF SUCH LETTER. HOWEVER, WE HAVE A COPY OF A LETTER ADDRESSED TO YOU UNDER DATE OF FEBRUARY 20, 1950, FROM THE CHIEF, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO, WHICH IS STATED TO BE IN REPLY TO A LETTER FROM YOU DATED JANUARY 19, 1950, AND CONCERNS ONLY THE WITHHOLDING OF INCOME TAX FROM RETIRED PAY. WE ALSO HAVE A COPY OF A LETTER DATED APRIL 5, 1950, ADDRESSED TO YOU FROM THE MEDICAL RECORDS CORRESPONDENCE SECTION, BUREAU OF MEDICINE AND SURGERY, WHICH IS STATED TO BE IN REPLY TO A LETTER FROM YOU DATED MARCH 13, 1950, AND INDICATES THAT YOUR RELEASE FROM ACTIVE DUTY IN 1944 WAS EFFECTED BECAUSE OF PHYSICAL DISABILITY. IT WAS ALSO STATED THAT YOU MIGHT FURNISH A COPY OF THAT LETTER TO YOUR LOCAL COLLECTOR OF INTERNAL REVENUE IF YOU SO DESIRED.

IT IS CLEAR THAT THE EXCHANGES OF CORRESPONDENCE BETWEEN YOU AND THE DEPARTMENT OF THE NAVY IN 1950, TO WHICH YOU REFER, WERE MADE FOR THE PURPOSE OF ESTABLISHING YOUR RIGHT TO THE EXEMPTION FROM FEDERAL INCOME TAX ACCORDED PERSONS RETIRED FOR PHYSICAL DISABILITY. THERE IS NO INDICATION THAT YOU MADE ANY ATTEMPT TO ELECT TO HAVE YOUR DISABILITY RETIRED PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 OR THAT ANY AFFIRMATIVE ACTION OF THE DEPARTMENT OF THE NAVY MISLED YOU INTO NOT FILING AN ELECTION. SINCE THE FACTS IN YOUR CASE ARE SIMILAR TO THE FACTS IN THE CASES OF FORSTER AND ELLIS, YOUR RIGHTS ARE GOVERNED BY THE COURT'S DECISION OF NOVEMBER 7, 1962, DENYING THEM THE BENEFITS CLAIMED. ACCORDINGLY, THERE IS NO AUTHORITY FOR ALLOWING YOU THE SELIGA-TYPE BENEFITS INASMUCH AS YOU MADE NO ELECTION PRIOR TO OCTOBER 1, 1954, TO QUALIFY FOR RETIRED PAY AS REQUIRED IN SECTION 411 OF THE CAREER COMPENSATION ACT.

IF YOU HAD ELECTED TO HAVE YOUR RETIRED PAY COMPUTED UNDER THE DISABILITY RETIRED PAY PROVISIONS OF THE CAREER COMPENSATION ACT AND PROPERLY QUALIFIED THEREFOR YOU WOULD HAVE BEEN ENTITLED UNDER SECTION 402 (D) TO RETIRED PAY COMPUTED AT 2 1/2 PERCENT OF THE BASIC PAY OF YOUR GRADE MULTIPLIED BY EITHER THE NUMBER OF YEARS OF ACTIVE SERVICE PERFORMED BY YOU OR THE PERCENTAGE OF YOUR DISABILITY AS DETERMINED BY THE SECRETARY OF THE NAVY. THE PERCENTAGE OF YOUR DISABILITY HAS NEVER BEEN FIXED AND YOUR ACTUAL ACTIVE SERVICE TOTALED LESS THAN 23 YEARS. WE HAVE FOUND NOTHING IN THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 359, TO WHICH YOU REFER, OR ANY OTHER LAW WHICH WOULD PERMIT THE COMPUTATION OF YOUR RETIRED PAY AT THE 75 PERCENT RATE BASED ON 30 YEARS OF ACTIVE AND INACTIVE SERVICE.

YOU CITE AS SUPPORTING AUTHORITY FOR YOUR CLAIM THE DECISION OF JUNE 7, 1963, IN THE CASE OF STEELMAN V. UNITED STATES, CT.CL. NO. 24-60. THE SOLE QUESTION PRESENTED IN THAT CASE WAS WHETHER A REGULAR NAVY RETIRED ENLISTED MAN ENTITLED TO RECEIVE RETIRED PAY COULD RECEIVE DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, CH. 458, 39 STAT. 742, AS AMENDED, 5 U.S.C. 751, ET SEQ., IN ADDITION TO HIS RETIRED PAY. THAT DECISION APPEARS TO HAVE NO BEARING ON YOUR CLAIM FOR INCREASED RETIRED PAY.