B-135386, MAR. 9, 1960
Highlights
HELD THAT THE "SHORT 16-YEAR" MEN WERE ENTITLED TO RECEIVE DIFFERENCE BETWEEN ONE-THIRD AND ONE-HALF OF THEIR BASE PAY. IN THAT DECISION WE SET FORTH THE REASONS WHY YOU WERE NOT ENTITLED TO INCREASED RETIRED PAY AS A "SHORT 16-YEAR" MAN AND FURNISHED YOU A COPY OF DECISION DATED DECEMBER 4. WE ARE NOT AWARE OF ANY COURT HOLDING OF JANUARY 20. IT IS OUR VIEW THAT THE DECISION IS ERRONEOUS AND WE HAVE RECOMMENDED TO THE DEPARTMENT OF JUSTICE THAT THE COURT BE REQUESTED TO RECONSIDER THE MATTER. THE SENST DECISION WILL NOT BE FOLLOWED BY THIS OFFICE AT THIS TIME IN THE SETTLEMENT OF OTHER CLAIMS OF A SIMILAR NATURE.
B-135386, MAR. 9, 1960
TO MR. JOHN E. HINKEL:
YOUR LETTER OF JANUARY 28, 1960, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR 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 STATE THAT "SINCE THE COURT, ON JANUARY 20, 1958, HELD THAT THE "SHORT 16-YEAR" MEN WERE ENTITLED TO RECEIVE DIFFERENCE BETWEEN ONE-THIRD AND ONE-HALF OF THEIR BASE PAY, PROVIDED THEY PERFORMED AT LEAST 3 YRS AND 6 MOS. ADDITIONAL ACTIVE SERVICE, I FEEL NOW THAT MY CLAIM SHOULD BE RECHECKED AND VERIFIED.'
IN DECISION TO YOU, DATED MARCH 12, 1958, B-135386, THIS OFFICE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM CONTAINED IN SETTLEMENT OF FEBRUARY 4, 1958. IN THAT DECISION WE SET FORTH THE REASONS WHY YOU WERE NOT ENTITLED TO INCREASED RETIRED PAY AS A "SHORT 16-YEAR" MAN AND FURNISHED YOU A COPY OF DECISION DATED DECEMBER 4, 1957, B-134160, WHICH SET FORTH IN DETAIL THE PERTINENT STATUTES AND DECISIONS TOGETHER WITH THE UNDERLYING REASONING INVOLVED IN COMPUTING THE AMOUNT OF 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.
WE ARE NOT AWARE OF ANY COURT HOLDING OF JANUARY 20, 1958, WHICH FURNISHES A BASIS FOR ALLOWANCE OF YOUR CLAIM. POSSIBLY, YOU INTENDED TO REFER TO THE RECENT DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF MOJICA, ET AL. V. UNITED STATES, C.CLS.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. WHILE THE DECISION IN THAT CASE SUPPORTS YOUR CLAIM, THE JUDGMENT HAS NOT YET BECOME FINAL INASMUCH AS THE TIME ALLOWED THE GOVERNMENT TO FILE AN APPEAL HAS NOT YET EXPIRED.
IT IS OUR VIEW THAT THE DECISION IS ERRONEOUS AND WE HAVE RECOMMENDED TO THE DEPARTMENT OF JUSTICE THAT THE COURT BE REQUESTED TO RECONSIDER THE MATTER. THEREFORE, THE SENST DECISION WILL NOT BE FOLLOWED BY THIS OFFICE AT THIS TIME IN THE SETTLEMENT OF OTHER CLAIMS OF A SIMILAR NATURE.
ACCORDINGLY, WE MUST ADHERE TO THE CONCLUSION REACHED IN OUR DECISION OF MARCH 12, 1958, B-135386.