B-135386, MAR. 12, 1958

B-135386, MAR. 12, 1958

TO MR. JOHN E. HINKEL:

YOUR LETTER OF FEBRUARY 10, 1958, REQUESTS RECONSIDERATION OF OFFICE SETTLEMENT DATED FEBRUARY 4, 1958, WHEREIN IT WAS HELD THAT YOU WERE NOT ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY YOU AFTER TRANSFER TO THE FLEET NAVAL RESERVE, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE -HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS ONE- THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.

YOU SUBMIT EXCERPT FROM "NAVAL AFFAIRS," DECEMBER 1957 ISSUE, CITING CASES AND DECISION 26 COMP. GEN. 804, WHICH YOU STATE SUPPORT YOUR CONTENTION, WHICH IS, IN EFFECT THAT THE ACT OF JULY 1, 1922, 42 STAT. 799, 800, PROVIDES THAT MEN TRANSFERRED UNDER ITS PROVISIONS WITH OVER 12 BUT LESS THAN 16 YEARS' SERVICE SHOULD BE DEEMED TO HAVE ACTUALLY PERFORMED 16 YEARS' SERVICE. THE CASES REFERRED TO ARE THE SANDERS, ABAD, AND HENRY GRISSING CASES; B-64196, APRIL 24, 1947, 26 COMP. GEN. 804, IS CITED AS AUTHORITY FOR THE PROPOSITION THAT THOSE MEN WHO TRANSFERRED TO THE FLEET RESERVE IN JULY 1922 WITH OVER 12 AND UNDER 16 YEARS' SERVICE COULD COUNT THEIR "SERVICE" AS EXACTLY 16 YEARS.

IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE IN JULY 1922 WITH CREDITABLE SERVICE OF 13 YEARS, 7 MONTHS, AND 3 DAYS, AND THAT THEREAFTER YOU SERVED ON ACTIVE DUTY FROM JUNE 23, 1941, TO NOVEMBER 4, 1945, A PERIOD OF 4 YEARS, 4 MONTHS, AND 12 DAYS, OR A TOTAL OF 17 YEARS, 11 MONTHS, AND 15 DAYS CREDITABLE SERVICE.

OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 813, SAID, IN ANSWER TO THE QUESTION WHETHER MEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN 15 YEARS' ACTUAL SERVICE WERE TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946 THAT:

"UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42 STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT "AFTER 16 YEARS' SERVICE.' WHERE IT BECOMES MATERIAL FOR PAY PURPOSES TO DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16 YEARS' SERVICE. CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE. SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS ANSWER IN THE NEGATIVE.

THE ANSWER TO QUESTION (C) REFERRED TO IN THE ABOVE QUOTATIONS, WAS THAT MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY 16 YEARS' SERVICE WERE NOT TO BE CONSIDERED AS HAVING BEEN TRANSFERRED ,AFTER MORE THAN 16 YEARS' SERVICE" AS THAT TERM WAS USED IN SECTION 208.

SINCE IT WAS HELD IN THE DECISION OF APRIL 24, 1947, THAT MEN SO TRANSFERRED TO THE FLEET NAVAL RESERVE WITH EXACTLY 16 YEARS' SERVICE ARE NOT ELIGIBLE FOR THE BENEFITS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, THERE WAS NO OCCASION TO SPECULATE AS TO WHAT SERVICE WOULD BE CREDITABLE UNDER SECTION 208 TO A MAN TRANSFERRED UNDER THE 1922 ACT.

YOU REFER TO ABAD ET AL. V. UNITED STATES, C.CLS. NO. 49667, DECIDED OCTOBER 2, 1956. IN THAT CASE IT WAS HELD THAT A MAN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY 16 YEARS' SERVICE WAS TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION 208. IN B-129880, FEBRUARY 6, 1957, 36 COMP. GEN. 579, IT WAS HELD THAT WE WOULD FOLLOW THE COURT'S OPINION IN THE ABAD CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS AND ACCORDINGLY THE ANSWER TO QUESTION (C) IN THE DECISION OF APRIL 24, 1947, WAS OVERRULED.

IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT AN ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER SECTION 26 OF ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED BY THE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938--- WITH MORE THAN 16 AND LESS THAN 20 YEARS' ACTIVE SERVICE (WITH CONSEQUENT ENTITLEMENT TO RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS) AND WHO SUBSEQUENT TO SUCH TRANSFER, PERFORMED ACTIVE DUTY OF 4 YEARS, 10 MONTHS, AND 20 DAYS, WAS ENTITLED BY VIRTUE OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, UPON RELEASE FROM SUCH ACTIVE DUTY TO RETAINER OR RETIRED PAY ON THE BASIS OF 20 YEARS' ACTIVE SERVICE, THAT IS, TO ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE LANGUAGE OF THE COURT IN THIS CASE THAT "THE INTENT OF CONGRESS APPEARS TO HAVE BEEN TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO INACTIVE DUTY AND THEN RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY, TO COUNT THEIR WARTIME SERVICE IN THE COMPUTATION OF RETIREMENT PAY IN THE SAME MANNER AS IF THEIR ACTUAL-DUTY STATUS HAD BEEN CONTINUOUS," SEEMS PARTICULARLY APPLICABLE TO THE PRESENT CASE.

THE HOLDING IN THE CASE OF WILLIAM S. EBINGER ET AL. (HENRY GRISSING, PLAINTIFF NO. 79) V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, IS NOT PERTINENT TO YOUR CLAIM. THAT CASE HELD THAT ALL PERIODS OF EXTENDED ACTIVE DUTY PERFORMED BY FLEET RESERVISTS AFTER JULY 1, 1925, MAY BE COUNTED IN COMPUTING THEIR RETAINER OR RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, WHETHER SUCH ADDITIONAL EXTENDED ACTIVE DUTY IS PERFORMED DURING TIME OF NATIONAL EMERGENCY OR DURING PEACETIME. CONSIDERATION OF EXTENDED ACTIVE DUTY PERFORMED AFTER JULY 1, 1925, AND DURING PEACETIME, IS NOT INVOLVED IN YOUR CASE.

WE FOLLOWED BOTH THE SANDERS DECISION AND THE REASONING IN 26 COMP. GEN. 804, 813 IN MAKING THE SETTLEMENT OF FEBRUARY 4, 1958, OF YOUR CLAIM. CONCLUDED THAT A MAN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN 16 YEARS' SERVICE WAS IN THE SAME POSITION AS A MAN TRANSFERRED UNDER SOME OTHER PROVISIONS OF LAW WITH EXACTLY 16 YEARS' SERVICE INSOFAR AS THE DETERMINATION OF WHETHER SECTION 208 IS APPLICABLE TO HIM AND, SINCE A MAN TRANSFERRED WITH EXACTLY 16 YEARS' SERVICE COMES WITHIN THE SCOPE OF THAT SECTION (ABAD CASE), IT MUST FOLLOW THAT A MAN TRANSFERRED UNDER THE 1922 ACT WITH LESS THAN 16 YEARS' SERVICE ALSO COMES WITHIN THE SCOPE OF THAT SECTION. IT WAS CONCLUDED ALSO, FOLLOWING THE SANDERS DECISION, THAT A MAN WITHIN THE PROVISION OF SECTION 208 IS ENTITLED, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, TO RETAINER OR RETIRED PAY AS A TWENTY-YEAR MAN IF HIS TOTAL CREDITABLE SERVICE, BEFORE AND AFTER TRANSFER, WOULD HAVE ENTITLED HIM, UPON THE DAY OF HIS RELEASE FROM SUCH ACTIVE DUTY TO TRANSFER TO THE FLEET RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT AS A TWENTY-YEAR MAN. IN OTHER WORDS, THE SETTLEMENT OF FEBRUARY 4, 1958, WAS PREDICATED UPON THE PRINCIPLE OF THE SANDERS CASE, EQUAL BENEFITS FOR EQUAL SERVICE. SINCE YOU, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, HAD PERFORMED AN AGGREGATE OF BUT 17 YEARS, 11 MONTHS, AND 15 DAYS CREDITABLE SERVICE, IT WAS HELD THAT YOU HAD NOT MET THE REQUIREMENT FOR PAY AS A TWENTY-YEAR MAN OF AT LEAST 19 YEARS, 6 MONTHS' SERVICE. CONCLUSION, IT MUST BE POINTED OUT THAT THERE IS NOTHING IN THE ACT OF JULY 1, 1922, WHICH PROVIDES OR EVEN INTIMATES THAT MEN TRANSFERRED UNDER ITS PROVISIONS SHOULD BE DEEMED TO HAVE ACTUALLY PERFORMED 16 YEARS' SERVICE. THE ACT MERELY SAID THAT MEN SO TRANSFERRED SHOULD "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 16 YEARS' SERVICE.' IN THIS RESPECT, IT IS SIGNIFICANT THAT THE DEPARTMENT OF THE NAVY IN REPORTING YOUR SERVICE, DID NOT CREDIT YOU WITH 16 YEARS' SERVICE AT THE TIME OF TRANSFER TO THE FLEET RESERVE.

THERE IS FORWARDED A COPY OF B-134160, DECEMBER 4, 1957, WHICH SETS FORTH IN DETAIL THE PERTINENT STATUTES AND DECISIONS TOGETHER WITH THE UNDERLYING REASONING INVOLVED IN COMPUTING NAVAL SERVICE CREDITS FOR DETERMINATION OF ENTITLEMENT TO THE BENEFITS ACCRUING UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, ADDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 994, 34 U.S.C. 854G. ON THE BASIS THEREOF AND ON THE REASONING ABOVE SET FORTH, THE SETTLEMENT OF FEBRUARY 4, 1958 MUST BE, AND HEREBY IS, SUSTAINED.