B-100137, APR. 22, 1958

B-100137, APR. 22, 1958

TO LIEUTENANT COMMANDER ARTHUR C. MEYERS, USNR (RET):

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11, 1958, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY PREDICATED UPON THE INCLUSION OF MIDSHIPMAN SERVICE AT THE UNITED STATES NAVAL ACADEMY PRIOR TO MARCH 4, 1913, IN DETERMINING THE BASIC PAY RATE TO BE USED IN THE COMPUTATION OF YOUR RETIRED PAY. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED DECEMBER 13, 1956, FOR THE REASON THAT YOU WERE NOT ON ACTIVE DUTY ON JUNE 30, 1922, AND HENCE YOU ARE NOT ENTITLED TO INCLUDE THE MIDSHIPMAN SERVICE FOR LONGEVITY PAY PURPOSES.

YOU NOW CALL ATTENTION TO AN ITEM STATED TO HAVE APPEARED IN THE JANUARY- FEBRUARY ISSUE OF "THE RETIRED OFFICER,"REPORTING THAT THE COURT OF CLAIMS HAS HELD THAT RETIRED NAVAL OFFICERS MAY INCLUDE SERVICE AS MIDSHIPMAN UNDER APPOINTMENTS MADE PRIOR TO MARCH 14, 1913, IN THE COMPUTATION OF THEIR RETIRED PAY. THE UNIDENTIFIED COURT OF CLAIMS DECISION APPEARS TO BE THE DECISION IN CASES OF LEO J. BROYDERICK ET AL. (491-56), JOHN A. BROWNELL, ET AL. (505-56), PAUL F. FOSTER (506-56) V. UNITED STATES, DECIDED DECEMBER 4, 1957. THE COURT THERE HELD THAT NAVAL RESERVE OFFICERS, WHO SERVED AS MIDSHIPMAN PRIOR TO MARCH 4, 1913, AND WERE RETIRED UNDER THE ACT OF FEBRUARY 21, 1946, IN WHICH THEY WERE ENTITLED TO COUNT THE NUMBER OF YEARS "FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF THEIR PAY WHILE ON ACTIVE DUTY" IN COMPUTING THEIR RETIRED PAY, AND WHO, THE COURT SAID, SERVED IN THE REGULAR NAVY AS COMMISSIONED OFFICERS ON JUNE 30, 1922, BUT WHO DID NOT HAVE CONTINUOUS SERVICE UNTIL RETIREMENT, ARE ENTITLED TO RECOVER RETIRED PAY ON THE BASIS OF THE MIDSHIPMAN SERVICE. SINCE THE COURT'S DECISION RELATED TO OFFICERS WHO, IT SAID, SERVED IN THE REGULAR NAVY AS COMMISSIONED OFFICERS ON JUNE 30, 1922, IT DOES NOT APPEAR THAT YOUR CASE IS ONE THAT WOULD FALL WITHIN THE PURVIEW OF THE COURT OF CLAIMS DECISION OF DECEMBER 4, 1957.

IN EARLIER LETTERS TO OUR OFFICE YOU HAVE STATED THAT YOU HAD NAVAL ACADEMY SERVICE FROM 1902 TO YOUR GRADUATION IN 1906, AND THAT YOU RESIGNED FROM THE SERVICE ON JULY 1, 1908. ALSO, ON AN EARLIER OCCASION, YOU SUBMITTED A COPY OF LETTER DATED FEBRUARY 14, 1950, RECEIVED FROM THE OFFICE OF THE CHIEF OF NAVAL PERSONNEL, SHOWING CREDITABLE SERVICE AS FOLLOWS:

CHART

INACTIVE SERVICE 4/23/17 TO 5/21/17

ACTIVE SERVICE 5/22/17 TO 10/16/19

INACTIVE SERVICE 10/17/19 TO 4/22/21

INACTIVE SERVICE 4/28/21 TO 4/27/25

INACTIVE SERVICE 2/16/26 TO 6/30/39

TRANSFERRED TO THE HONORARY RETIRED

LIST EFFECTIVE 1 JULY 1936.

IT IS READILY APPARENT FROM THE ABOVE THAT YOU WERE NOT A COMMISSIONED OFFICER OF THE REGULAR NAVY IN ACTIVE SERVICE ON JUNE 30, 1922, AND UNDER SUCH CIRCUMSTANCE THE DECISION REFERRED TO IS NOT FOR APPLICATION TO THE FACTS OF YOUR CASE.

ACCORDINGLY, ASIDE FROM THE FACT THAT WE HAVE NOT, AS YET, DECIDED TO FOLLOW THE COURT'S DECISION OF DECEMBER 4, 1957, IN THE SETTLEMENT OF CLAIMS OF PERSONS WHO SERVED ON ACTIVE DUTY AS OFFICERS OF THE REGULAR NAVY ON JUNE 30, 1922, YOUR PRESENT CLAIM MAY NOT BE ALLOWED, SINCE YOU WERE NOT SERVING ON ACTIVE DUTY ON THAT DATE. THE SETTLEMENT OF DECEMBER 13, 1956, IS AFFIRMED.