B-140272, NOV. 3, 1959

B-140272: Nov 3, 1959

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26. WE POINTED OUT THAT THE RECORDS SHOW THAT SINCE YOUR RELEASE FROM ACTIVE DUTY YOU HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY (AS CAPTAIN WITH OVER 30 YEARS OF CREDITABLE SERVICE) YOU WERE RECEIVING AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 12. WE SAID THAT YOU HAVE BEEN PAID RETIRED PAY EQUAL TO THAT WHICH COULD BE PAID UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SAID THAT WE ARE WITHOUT AUTHORITY TO QUESTION THE DETERMINATION OF PHYSICAL DISABILITY WHICH HAS BEEN MADE IN YOUR CASE. WAS BASED ON A DEPARTMENT OF THE NAVY WORKSHEET (COMPUTATION OF LONGEVITY AND ACTIVE SERVICE) FURNISHED OUR OFFICE WITH YOUR CLAIM.

B-140272, NOV. 3, 1959

TO CAPTAIN PAUL R. STALNAKER (MC), USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1959, CONCERNING THE ACTION TAKEN IN OUR LETTER TO YOU DATED AUGUST 24, 1959, B-140272, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR INCREASED RETIRED PAY COMPUTED ON THE BASIS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368.

IN OUR LETTER OF AUGUST 24, 1959, WE POINTED OUT THAT THE RECORDS SHOW THAT SINCE YOUR RELEASE FROM ACTIVE DUTY YOU HAVE BEEN IN RECEIPT OF RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY (AS CAPTAIN WITH OVER 30 YEARS OF CREDITABLE SERVICE) YOU WERE RECEIVING AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 12, 1944, WITH APPLICABLE INCREASES PROVIDED BY SUBSEQUENT LEGISLATION. WE SAID THAT YOU HAVE BEEN PAID RETIRED PAY EQUAL TO THAT WHICH COULD BE PAID UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. ALSO CALLED YOUR ATTENTION TO THE PROVISIONS OF SECTION 414 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, AND SAID THAT WE ARE WITHOUT AUTHORITY TO QUESTION THE DETERMINATION OF PHYSICAL DISABILITY WHICH HAS BEEN MADE IN YOUR CASE.

YOUR LETTER CONTAINS NO RELEVANT FACTS NOT PREVIOUSLY CONSIDERED AND DOES NOT WARRANT ANY DIFFERENT ACTION IN THE MATTER. THE PERIOD YOU SERVED ON ACTIVE DUTY SUBSEQUENT TO YOUR TRANSFER TO THE RETIRED LIST FROM MARCH 20, 1942, TO FEBRUARY 12, 1944, AS SHOWN IN OUR LETTER, WAS BASED ON A DEPARTMENT OF THE NAVY WORKSHEET (COMPUTATION OF LONGEVITY AND ACTIVE SERVICE) FURNISHED OUR OFFICE WITH YOUR CLAIM. THE FILE, HOWEVER, DOES CONTAIN A COPY OF A LETTER DATED MARCH 31, 1944, FROM THE BUREAU OF NAVAL PERSONNEL TO THE CHIEF OF FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO, STATING THAT YOU WERE RECALLED TO ACTIVE DUTY ON MARCH 16, 1942, AND RELIEVED FROM ACTIVE DUTY ON FEBRUARY 12, 1944. THE FOUR DAY DISCREPANCY MAKES NO MATERIAL DIFFERENCE IN YOUR CASE SINCE YOU ALREADY HAD COMPLETED OVER 30 YEARS OF CREDITABLE SERVICE--- THE MAXIMUM FOR LONGEVITY PAY COMPUTATION PURPOSES--- WHEN YOU WERE RECALLED TO ACTIVE DUTY IN 1942.

SINCE YOU STILL CONTEND THAT YOUR PERCENTAGE OF DISABILITY SHOULD BE CHANGED AND, IN EFFECT, THAT YOUR RECORD SHOULD BE CORRECTED TO SHOW THAT YOU ELECTED TO RECEIVE RETIRED PAY ON THE BASIS OF PERCENTAGE OF DISABILITY EFFECTIVE AS OF OCTOBER 1, 1949, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF 10 U.S.C. 1552. UNDER SUCH PROVISIONS OF LAW THE SECRETARY OF THE NAVY, ON A RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, MAY CORRECT ANY NAVAL RECORD WHERE, IN HIS JUDGMENT, SUCH ACT "IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' ANY REQUEST FOR CONSIDERATION OF THE MATTER BY THIS BOARD SHOULD BE ADDRESSED TO THE BOARD FOR CORRECTION OF NAVAL RECORDS, DEPARTMENT OF THE NAVY, WASHINGTON 25, D.C. ..END :

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