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B-146185, SEP. 14, 1961

B-146185 Sep 14, 1961
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HILLARD DAUGHERTY: REFERENCE IS MADE TO YOUR LETTER OF MAY 18. WERE DISCHARGED MARCH 24. WERE DISCHARGED JUNE 6. WERE DISCHARGED JANUARY 6. WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 11. IT APPEARS THAT YOUR TRANSFER WAS EFFECTED PURSUANT TO THE ACT OF JULY 1. OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE. 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 SIXTEEN YEARS' SERVICE THE REPORT FURTHER SHOWS THAT SUBSEQUENT TO YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU WERE RECALLED TO ACTIVE DUTY FOR THE PERIOD MARCH 26. THAT YOU WERE RETIRED AUGUST 1. SUBSEQUENT TO RETIREMENT YOU WERE AGAIN RECALLED TO ACTIVE DUTY AND SERVED FROM DECEMBER 29.

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B-146185, SEP. 14, 1961

TO MR. HILLARD DAUGHERTY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1961, RELATIVE TO YOUR CLAIM AS A RETIRED FLEET RESERVIST FOR INCREASED RETIRED PAY FROM DECEMBER 5, 1944, TO BE COMPUTED ON THE BASIS OF 25 YEARS OF ACTIVE SERVICE ON THE 2 1/2 PERCENTUM FORMULA PROVIDED IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993.

THE REPORT OF YOUR NAVAL SERVICE FURNISHED TO US BY THE DEPARTMENT OF THE NAVY SHOWS THAT YOU ENTERED INTO A MINORITY ENLISTMENT IN THE NAVY ON NOVEMBER 20, 1908, AND WERE DISCHARGED MARCH 24, 1912; THAT YOU REENLISTED JUNE 17, 1912, AND WERE DISCHARGED JUNE 6, 1916; THAT YOU REENLISTED JULY 27, 1916, AND WERE DISCHARGED JANUARY 6, 1922; AND THAT YOU REENLISTED JANUARY 7, 1922, AND WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON JULY 11, 1922, AS A CHIEF BOATSWAIN'S MATE (PERMANENT APPOINTMENT). WHILE AT THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU HAD A TOTAL OF ONLY 13 YEARS, 3 MONTHS AND 10 DAYS OF ACTUAL ACTIVE NAVAL SERVICE, IT APPEARS THAT YOUR TRANSFER WAS EFFECTED PURSUANT TO THE ACT OF JULY 1, 1922, 42 STAT. 799-800, WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON SUCH TRANSFER, 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 SIXTEEN YEARS' SERVICE

THE REPORT FURTHER SHOWS THAT SUBSEQUENT TO YOUR TRANSFER TO THE FLEET NAVAL RESERVE YOU WERE RECALLED TO ACTIVE DUTY FOR THE PERIOD MARCH 26, 1927, TO MARCH 20, 1933, AND THAT YOU WERE RETIRED AUGUST 1, 1938. SUBSEQUENT TO RETIREMENT YOU WERE AGAIN RECALLED TO ACTIVE DUTY AND SERVED FROM DECEMBER 29, 1941, TO DECEMBER 5, 1944. THUS, THE TWO PERIODS OF ADDITIONAL ACTIVE DUTY, AGGREGATING 8 YEARS, 11 MONTHS, AND 2 DAYS, WHEN ADDED TO THE TOTAL OF YOUR CREDITABLE ACTIVE DUTY PRIOR TO TRANSFER TO THE FLEET NAVAL RESERVE GAVE YOU A TOTAL OF 22 YEARS, 2 MONTHS, AND 12 DAYS OF ACTUAL ACTIVE SERVICE FOR RETIRED PAY PURPOSES. COMMENCING DECEMBER 6, 1944, AND UNTIL SEPTEMBER 30, 1949, YOU WERE PAID RETIRED PAY PURSUANT TO THE PROVISIONS OF SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, ON THE BASIS OF ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS FOR OVER 22 YEARS OF ACTIVE SERVICE AND THEREAFTER YOU WERE PAID RETIRED PAY PURSUANT TO SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, ON THE BASIS OF THE 2 1/2 PERCENTUM FORMULA FOR THE SAME NUMBER OF YEARS OF ACTIVE SERVICE.

ON JULY 30, 1960, YOU PRESENTED CLAIM UNDER THE SANDERS CASE (120 CT.CL. 501) FOR ADJUSTMENT OF YOUR RETIRED PAY FOR THE PERIODS MARCH 20, 1933, TO DECEMBER 23, 1941, AND FROM DECEMBER 5, 1944, TO PRESENT DATE ON THE BASIS OF 25 YEARS OF ACTIVE SERVICE. OUR CLAIMS DIVISION BY SETTLEMENT OF MARCH 28, 1961, DETERMINED THAT YOU HAD CREDITABLE SERVICE OF 22 YEARS, 2 MONTHS, AND 12 DAYS FOR RETIRED PAY PURPOSES AND, ACCORDINGLY, ALLOWED TO YOU THE AMOUNT OF $139.98 UNDER THE SAVED PAY PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. THAT AMOUNT REPRESENTED THE DIFFERENCE BETWEEN THE RETIRED PAY RECEIVED BY YOU DURING THE PERIOD AUGUST 3, 1950, TO MARCH 31, 1955, COMPUTED UNDER SECTION 511 ON THE BASIS OF THE 2 1/2 PERCENTUM FORMULA, AND THAT TO WHICH YOU WERE ENTITLED FOR THAT PERIOD ON THE SANDERS BASIS OF ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. NO ALLOWANCE WAS MADE TO COVER THE PERIOD SUBSEQUENT TO MARCH 31, 1955, INASMUCH AS YOU WERE PAID RETIRED PAY ON A MORE ADVANTAGEOUS RATE, COMPUTED ON THE 2 1/2 PERCENTUM FORMULA UNDER SECTION 511 AND BASED ON THE RATE OF PAY AUTHORIZED BY THE ACT OF MARCH 31, 1955, 69 STAT. 18. AS YOU WERE ADVISED IN THE SETTLEMENT, NO CONSIDERATION WAS GIVEN TO THAT PORTION OF YOUR CLAIM WHICH RELATED TO THE PERIOD PRIOR TO AUGUST 3, 1950, FOR THE REASON THAT SINCE YOUR CLAIM WAS NOT RECEIVED IN THIS OFFICE UNTIL AUGUST 3, 1960, THERE WAS FOR APPLICATION IN YOUR CASE THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH BARS THE CONSIDERATION OF EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF SUCH CLAIM IS NOT RECEIVED THEREIN WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

IN YOUR LETTER OF MAY 18, 1961, YOU MAINTAIN THAT UNDER THE SANDERS CASE AND OUR DECISION OF APRIL 22, 1960, B-100610, REPORTED IN 39 COMP. GEN. 720, YOU SHOULD BE GIVEN A CONSTRUCTIVE CREDIT OF 16 YEARS OF SERVICE AT THE TIME YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE WHICH SERVICE WHEN ADDED TO THE SUBSEQUENT ACTIVE SERVICE WOULD GIVE YOU A TOTAL OF 24 YEARS, 11 MONTHS, AND 12 DAYS FOR RETIRED PAY BASED ON THE 2 1/2 PERCENTUM FORMULA PRESCRIBED IN SECTION 204 OF THE 1938 ACT, AS AMENDED, FROM DECEMBER 5, 1944.

SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 60 STAT. 993, 34 U.S.C. 854C (1946 ED.), PROVIDED IN PERTINENT PART AS FOLLOWS:

"MEMBERS OF THE NAVY * * * MAY UPON THEIR OWN REQUEST BE TRANSFERRED TO THE FLEET RESERVE UPON THE COMPLETION OF AT LEAST TWENTY YEARS' ACTIVE FEDERAL SERVICE. AFTER SUCH TRANSFER, EXCEPT WHEN ON ACTIVE DUTY, THEY SHALL BE PAID AT THE ANNUAL RATE OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE FEDERAL SERVICE: * * * PROVIDED FURTHER, THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEAR FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY * * *.'

WE STATED IN OUR DECISION OF APRIL 22, 1960, B-100610, THAT WE WOULD FOLLOW THE RULE ESTABLISHED IN THE CASE OF MOJICA, ET AL. V. UNITED STATES, CT.CL. NO. 264-52 (SADIE L. SENST AND PEGGY MAE WILSON, BENEFICIARIES OF THE ESTATE OF WALTER CARR SENST, DECEASED, PLAINTIFF NO. 60), DECIDED JANUARY 20, 1960, IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. THE COURT RULED IN THAT CASE THAT A MEMBER TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, SHOULD BE CREDITED WITH A PERIOD OF 16 YEARS OF CONSTRUCTIVE SERVICE UPON SUCH TRANSFER AND THAT A PERIOD OF ACTIVE DUTY AFTER TRANSFER SHOULD BE ADDED TO SUCH CONSTRUCTIVE PERIOD TO DETERMINE WHETHER THE MEMBER HAD COMPLETED AN AGGREGATE OF 19 YEARS AND 6 MONTHS OF CREDITABLE SERVICE, THE MINIMUM FOR ENTITLEMENT TO RETAINER OR RETIRED PAY COMPUTED ON THE ONE HALF BASIS UNDER THE RULE OF THE SANDERS CASE. IN SUPPORT OF SUCH RULING THE COURT SAID, IN PART, AS FOLLOWS:

"CONSIDERING THE POLICY UNDERLYING STATUTORY PROVISIONS RELATING TO RETIREMENT PAY TOGETHER WITH THE EXPRESS DIRECTION THAT PAY AND ALLOWANCE BENEFITS WERE TO BE EQUAL BETWEEN THE REGULAR RESERVISTS AND THOSE WHO WERE MADE RESERVISTS UNDER THE 1922 LAW, IT WOULD SEEM THAT CONGRESS MEANT TO EQUALIZE THE STATUS OF THE TWO GROUPS AT LEAST INSOFAR AS PAY AND ALLOWANCES WERE CONCERNED. IN SHORT, THE MEN TRANSFERRED WERE TO BE GIVEN CONSTRUCTIVE CREDIT FOR SIXTEEN YEARS' SERVICE. SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, ADDED IN 1946, PERMITTING MEMBERS OF THE FLEET RESERVE WITH MORE THAN SIXTEEN YEARS' SERVICE TO ADD YEARS OF SUBSEQUENT ACTIVE SERVICE IN DETERMINING THEIR RETIRED PAY STATUS ACCORDINGLY SHOULD BE APPLIED TO THE CLASS TO WHICH PLAINTIFF BELONGED.'

THE RIGHTS WHICH ACCRUE UNDER THE SANDERS-MOJICA RULE ARE THOSE WHICH ARE PAYABLE UNDER SECTION 203 OF THE 1938 ACT. WHILE THE WORD "ACTIVE" USED IN SECTION 204 (AS AMENDED BY THE 1946 ACT) IN CONNECTION WITH THE 20 YEARS' SERVICE THERE MENTIONED, DOES NOT APPEAR IN SECTION 203 AS AN ADJECTIVE MODIFYING THE 20 OR MORE YEARS'"SERVICE" PRESCRIBED IN SECTION 203, IT HAS ALWAYS BEEN UNDERSTOOD THAT THIS LATTER SERVICE IS ACTIVE SERVICE. IN DISCUSSING THE 1946 ACT AS IT RELATED TO THE MATTER THERE INVOLVED THE COURT IN THE SANDERS CASE STATED THAT "IT DOES NOT APPEAR THAT THERE WAS AN ATTEMPT TO DISTINGUISH BETWEEN A PERSON RELEASED UNDER SECTION 203 AND ONE RELEASED UNDER SECTION 204.' SINCE THE COURT HELD IN THE MOJICA CASE THAT CONSTRUCTIVE SERVICE UNDER THE 1922 ACT MAY BE COUNTED FOR THE PURPOSES OF SECTION 203, WE SEE NO SUBSTANTIAL BASIS FOR A CONCLUSION THAT THE CONGRESS INTENDED THAT A DIFFERENT BASIS MUST BE USED IN DETERMINING THE SERVICE WHICH MAY BE COUNTED IN COMPUTING THE PERCENTAGE FACTOR UNDER SECTION 204, AS AMENDED.

IT IS BELIEVED THAT THE HOLDING IN THE MOJICA CASE FURNISHES SUFFICIENT AUTHORITY FOR ADDING THE YEARS OF SUBSEQUENT ACTIVE SERVICE TO THE CONSTRUCTIVE SERVICE CREDIT OF 16 YEARS FOR THE PURPOSE OF DETERMINING THE TOTAL NUMBER OF YEARS OF SERVICE CREDITABLE IN COMPUTING YOUR RETIRED PAY. THEREFORE, UNDER THE 2 1/2 PERCENTUM FORMULA PROVIDED IN SECTION 204, AS AMENDED, THE USE OF WHICH WAS AUTHORIZED BY THE DECISION OF THE COURT OF CLAIMS IN HULSE V. UNITED STATES, 133 CT.CL. 848, YOU ARE ENTITLED TO HAVE YOUR RETIRED PAY COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF THE ANNUAL BASE AND LONGEVITY PAY YOU WERE RECEIVING AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY IN 1944 MULTIPLIED BY 25, THE TOTAL NUMBER OF YOUR YEARS OF ACTIVE AND CONSTRUCTIVE SERVICE.

YOUR ENTITLEMENT TO ADDITIONAL RETIRED PAY IS SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, HERETOFORE MENTIONED. SECTION 1 OF THAT ACT PROVIDES AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

YOUR LETTER OF JULY 30, 1960, ADDRESSED TO THE UNITED STATES NAVY OFFICER IN CHARGE, FINANCE CENTER, SPECIAL PAYMENTS DIVISION, CLEVELAND, OHIO, IN WHICH YOU INITIALLY PRESENTED CLAIM FOR THE DIFFERENCE IN RETIRED PAY BELIEVED TO BE DUE, WAS RECEIVED IN THIS OFFICE ON AUGUST 3, 1960, MORE THAN 10 YEARS AFTER AUGUST 10, 1946, DATE OF AMENDMENT OF SECTION 204, WHEN YOUR RIGHT TO THE ADDITIONAL RETIRED PAY FIRST ACCRUED. AFTER THAT DATE SUCH RIGHT ACCRUED ON A DAY TO DAY BASIS. SINCE THE ACT OF OCTOBER 9, 1940, DOES NOT PERMIT OF ANY EXCEPTIONS TO ITS PROVISIONS NOR DOES IT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE THOSE PROVISIONS IN ANY PARTICULAR CASE, WE ARE PRECLUDED FROM CONSIDERING THAT PORTION OF YOUR CLAIM WHICH COVERS THE PERIOD PRIOR TO AUGUST 3, 1950.

ACCORDINGLY, WE ARE TODAY INSTRUCTING OUR CLAIMS DIVISION TO ISSUE A SUPPLEMENTAL SETTLEMENT ALLOWING YOU THE DIFFERENCE IN RETIRED PAY FROM AUGUST 3, 1950, TO BE COMPUTED ON THE BASIS OF 25 YEARS OF SERVICE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE FACTOR UNDER SECTION 204 OF THE NAVAL RESERVE ACT, AS AMENDED.

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