B-133855, DEC. 9, 1957

B-133855, DEC. 9, 1957

TO KING AND KING, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 5, 1957, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN CONNECTION WITH THE CLAIM OF MR. ALFRED SZARMANSKI FOR ADJUSTMENT OF RETIRED PAY.

RECONSIDERATION OF MR. SZARMANSKI'S CLAIM FOR THE PERIOD NOVEMBER 3, 1945, THROUGH OCTOBER 31, 1946, IS REQUESTED UNDER THE PROVISIONS OF SECTIONS 1 AND 2 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505. UPON RECONSIDERATION OF THE MATTER, INSTRUCTIONS ARE BEING ISSUED TODAY DIRECTING ALLOWANCE OF THE CLAIM FOR SUCH AMOUNT AS MAY BE PROPERLY ALLOWABLE FOR THAT PERIOD.

A FURTHER CLAIM IS PRESENTED FOR THE DIFFERENCE BETWEEN THE PAY OF A CHIEF WARRANT OFFICER AND THAT OF A CHIEF PETTY OFFICER FOR THE PERIOD NOVEMBER 1, 1946, THROUGH JULY 31, 1948, IT BEING SUGGESTED THAT THE SAME IS ALLOWABLE UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF TATO V. UNITED STATES, C.CLS. NO. 139-54, DECIDED NOVEMBER 7, 1956. BY LETTER OF SEPTEMBER 5, 1957, B-129535, IN THE CASE OF STEPHEN A. CHRISTIAN, WE ADVISED YOU THAT WE HAD DECIDED NOT TO AUTHORIZE ANY DISBURSEMENTS OF PUBLIC FUNDS IN OTHER SIMILAR CASES AT THIS TIME ON THE BASIS OF THE COURT'S HOLDING IN THE TATO CASE, OUR DECISION BEING BASED, IN PART, ON OUR UNDERSTANDING THAT THE DEPARTMENT OF JUSTICE WILL AGAIN ARGUE BEFORE THE COURT OF CLAIMS ANOTHER CASE INVOLVING THE SAME PRINCIPLE. ALSO, IT WILL BE NOTED THAT SZARMANSKI ELECTED TO RECEIVE THE RETIRED PAY OF A CHIEF PETTY OFFICER FOR THE PERIOD NOVEMBER 1, 1946, THROUGH JULY 31, 1948, UNDER THE PROVISIONS OF THE ACT OF MAY 27, 1954, 68 STAT. 140, WHICH WAS CERTIFIED FOR PAYMENT TO HIM BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF MAY 2, 1955.

YOU SUGGEST THAT THE CLAIMANT SHOULD BE GIVEN THE INCREASED PAY OF A CHIEF WARRANT OFFICER DURING THE PERIOD AUGUST 1, 1948, THROUGH SEPTEMBER 30, 1949, IT BEING STATED THAT AT THE TIME THE CLAIMANT WAS EXTENDED THE OPTION OF REVERTING TO HIS PERMANENT ENLISTED STATUS HE WAS MISADVISED BY THE DEPARTMENT OF THE NAVY IN THAT HE WAS TOLD THAT UNLESS HE SO REVERTED HE WOULD CONTINUE TO BE SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932. UNDER THE CIRCUMSTANCES, YOU SUGGEST THAT THE CLAIMANT SHOULD NOT BE HELD TO HIS ELECTION. THE REVERSION OF THE CLAIMANT TO HIS PERMANENT ENLISTED STATUS WAS EFFECTED PURSUANT TO HIS REQUEST UNDER THE PROVISIONS OF THE ACT OF JUNE 19, 1948, AND WE ARE NOT AWARE OF ANY PROVISION OF LAW UNDER WHICH PAYMENT OF THE RETIRED PAY OF A CHIEF WARRANT OFFICER FOR THIS PERIOD WOULD BE AUTHORIZED. FURTHERMORE, ANY ALLOWANCE TO HIM ON THE BASIS OF HAVING HELD THE RANK OF CHIEF WARRANT OFFICER WOULD INVOLVE THE APPLICATION OF THE HOLDING IN THE TATO CASE, CONCERNING WHICH SEE THE PRECEDING PARAGRAPH.

THE DEPARTMENT OF THE NAVY REPORTS THAT THE CLAIMANT WAS PAID THE SUM OF $4,172.29 DURING THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1952, OR AT THE RATE OF $134.59 PER MONTH. THE REFERENCE IN THE SETTLEMENT OF JULY 5, 1957, TO THE RATE OF $132.30 PER MONTH FOR THAT PERIOD WAS TYPOGRAPHICAL ERROR.

WITH REGARD TO THE ALLOWANCE FOR THE PERIOD APRIL 1 THROUGH JUNE 30, 1955, UNDER THE CAREER INCENTIVE ACT, YOU REQUEST THAT THE SAME BE REVIEWED BUT YOU DO NOT POINT OUT WHEREIN THE ACTION TAKEN BY OUR CLAIMS DIVISION WAS IN ERROR. THE AMOUNT OF $146.25, ALLOWED UNDER DATE OF JULY 5, 1957, FOR THE PERIOD APRIL 1, 1955, THROUGH JUNE 30, 1956--- INCLUDED IN THE TOTAL OF $1,108.75--- REPRESENTS THE DIFFERENCE BETWEEN THE RETIRED PAY OF A BOATSWAIN WITH OVER 18 YEARS' SERVICE ($168.50 PER MONTH) PAYABLE UNDER THE CAREER INCENTIVE ACT, AND RETIRED PAY AT THE RATE OF $158.75 PER MONTH REPORTED BY THE DEPARTMENT OF THE NAVY AS HAVING BEEN PAID TO THE CLAIMANT DURING THE SAME PERIOD. THE ACTION TAKEN BY OUR CLAIMS DIVISION APPEARS TO HAVE BEEN CORRECT AND IS SUSTAINED. RESPECTING YOUR STATEMENT THAT THE CLAIM UNDER THE CAREER INCENTIVE ACT WILL CONTINUE THROUGH THE PRESENT DATE, THE U.S. NAVY FINANCE CENTER REPORTED UNDER DATE OF APRIL 25, 1957, THAT EFFECTIVE JULY 1, 1956, THE CLAIMANT'S PAY ACCOUNT WAS SUSPENDED DUE TO TOTAL WAIVER OF RETIRED PAY TO ACCEPT A CIVIL SERVICE ANNUITY.

BY YOUR LETTER OF OCTOBER 16, 1957, YOU SUBMITTED AN ADDITIONAL CLAIM FOR THE DIFFERENCE BETWEEN THE MONTHLY RATE OF $134.59 REPRESENTING THE RATE PAID TO THE CLAIMANT FOR THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1952, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, BASED UPON THE RANK OF BOATSWAIN, AND THE MONTHLY RATE OF $144 TO WHICH, YOU ALLEGE, THE CLAIMANT IS ENTITLED FOR THE SAME PERIOD BY VIRTUE OF THE "SAVED-PAY" PROVISIONS OF THE CITED ACT. THE CLAIMANT'S NAVAL HISTORY SHOWS THAT UNDER DATE OF SEPTEMBER 1, 1950, HE WAS PROMOTED ON THE RETIRED LIST TO THE RANK OF BOATSWAIN, EFFECTIVE OCTOBER 1, 1949. IT APPEARS THAT ON SEPTEMBER 30, 1949, THE CLAIMANT WAS IN RECEIPT OF PAY AT THE MONTHLY RATE OF $132, BASED UPON THE RATING OF CHIEF BOATSWAIN'S MATE. IT THUS FOLLOWS THAT THE MONTHLY RATE OF $134.59 ALLOWED AND PAID FOR THE PERIOD BEGINNING OCTOBER 1, 1949, WAS GREATER THAN THE AMOUNT THAT WOULD BE PAYABLE UNDER THE ,SAVED-PAY" PROVISIONS OF THE ACT. THE SAME REASONING APPLIES TO THE CLAIM FOR THE PERIOD BEGINNING MAY 1, 1952, THROUGH MARCH 31, 1955.

WITH REFERENCE TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE CHECK NOW IN YOUR POSSESSION MAY BE NEGOTIATED WITHOUT AFFECTING YOUR RIGHT TO REQUEST FURTHER CONSIDERATION OF THE CLAIM BY OUR OFFICE.