B-124847, DECEMBER 7, 1955, 35 COMP. GEN. 339

B-124847, DECEMBER 7, 1955, 35 COMP. GEN. 339

PAY - RETAINER; RETIRED - JUDGMENT ON STIPULATION - ADJUSTMENT OF PAY FOR PRIOR PERIODS A RETIRED NAVY ENLISTED MAN WHO WAS AWARDED A COURT OF CLAIMS JUDGMENT BASED ON A STIPULATION FOR ADDITIONAL RETIRED OR RETAINED PAY FOR THE PERIOD SUBSEQUENT TO JULY 30, 1948, NOTWITHSTANDING HE HAD LESS THAN THE STATUTORY REQUIREMENT OF NINETEEN AND ONE-HALF YEARS OF NAVAL SERVICE, EXCLUDING PEACETIME SERVICE, MAY NOT HAVE AN ADJUSTMENT MADE IN HIS RETIRED OR RETAINER PAY FOR THE PERIOD PRIOR TO THE PERIOD COVERED IN THE JUDGMENT.

TO HARRY ARGERBRIGHT, DECEMBER 7, 1955:

THERE HAS BEEN CONSIDERED A LETTER DATED MAY 12, 1955, FROM MR. THOMAS M. GITTINGS, JR., REQUESTING REVIEW OF THE ACTION TAKEN IN SETTLEMENT DATED MAY 10, 1955, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT IN RETAINER OR RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF OF YOUR BASE PAY, PLUS 10 PERCENT FOR GOOD CONDUCT, FOR THE PERIODS JULY 1, 1932, TO JULY 7, 1941, AND MARCH 24, 1942, TO JULY 29, 1948, INCIDENT TO YOUR TRANSFER TO THE FLEET RESERVE AS CHIEF COMMISSARY MAN.

THE RECORDS SHOW THAT ON FEBRUARY 8, 1955, THE UNITED STATES COURT OF CLAIMS ENTERED JUDGMENT IN YOUR FAVOR IN THE AMOUNT OF $440.36 AS ONE OF THE PLAINTIFFS IN THE CASE OF HARRY ARGERBRIGHT, ET AL. V. UNITED STATES, NO. 310-54, REPRESENTING ADDITIONAL RETIRED OR RETAINER PAY FOR THE PERIOD JULY 30, 1948, TO SEPTEMBER 30, 1949. THAT JUDGMENT WAS ENTERED ON A STIPULATION BETWEEN YOUR ATTORNEY AND THE ATTORNEY FOR THE GOVERNMENT ON THE BASIS OF THE COURT OF CLAIMS DECISION IN THE CASE OF SANDERS V. UNITED STATES, 120 C.1CLS. 501. YOUR PRESENT CLAIM IS FOR PERIODS PRECEDING JULY 30, 1948, AND IS STATED TO BE MADE PURSUANT TO THE NAVAL RESERVE ACT OF 1938 AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AND ON THE BASIS OF THE COURT OF CLAIMS DECISION IN THE SANDERS CASE.

IN MR. GITTING'S LETTER IT IS CONTENDED THAT THE COURT OF CLAIMS HELD THAT UNDER THE PROVISIONS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 AS ADDED BY THE 1946 ACT, YOU WERE ENTITLED TO CREDIT IN COMPUTING RETAINER OR RETIRED PAY, FOR THE PEACETIME ACTIVE SERVICE PERFORMED BY YOU FROM JUNE 4, 1927, TO JUNE 30, 1932, AND ON THAT BASIS THE COURT ENTERED JUDGMENT IN YOUR BEHALF. IT IS FURTHER STATED THAT THE DEPARTMENT OF THE NAVY IN COMPUTING YOUR SERVICE FOR PAY PURPOSES, ON WHICH THE JUDGMENT WAS BASED, INCLUDED CREDIT FOR YOUR PEACETIME SERVICE PERFORMED AFTER YOUR TRANSFER TO THE FLEET RESERVE.

THE DEPARTMENT OF THE NAVY IN A LETTER TO US DATED SEPTEMBER 20, 1954, REPORTS THAT AT THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL 1954, REPORTS THAT AT THE TIME OF YOUR TRANSFER TO THE FLEET NAVAL RESERVE ON FEBRUARY 3, 1919, YOU HAD NAVAL SERVICE TOTALING 16 YEARS, 2 MONTHS AND 10 DAYS. IT IS FURTHER REPORTED THAT YOU PERFORMED ACTIVE DUTY AFTER TRANSFER BUT PRIOR TO SEPTEMBER 8, 1939--- THE DATE A NATIONAL EMERGENCY WAS PROCLAIMED TO EXIST--- FROM FEBRUARY 4, 1919, TO JUNE 12, 1919, AND FROM JUNE 4, 1927, TO JUNE 30, 1932, OR 5 YEARS, 5 MONTHS AND 6 DAYS. THE REPORT DISCLOSES ALSO THAT YOU WERE RECALLED TO ACTIVE DUTY ON JULY 8, 1941, AND SERVED UNTIL MARCH 23, 1942, A PERIOD OF 8 MONTHS AND 16 DAYS. ON THAT BASIS, YOUR TOTAL NAVAL SERVICE BOTH BEFORE AND AFTER TRANSFER TO THE FLEET NAVAL RESERVE AMOUNTED TO 22 YEARS, 4 MONTHS AND 2 DAYS. EXCLUDING YOUR PEACETIME ACTIVE DUTY SERVICE OF 5 YEARS, 5 MONTHS AND 6 DAYS, HOWEVER, YOUR TOTAL NAVAL SERVICE AMOUNTED TO 16 YEARS, 10 MONTHS AND 26 DAYS, OR LESS THAN THE STATUTORY REQUIREMENT OF 19 YEARS AND 6 MONTHS.

SECTION 208, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. 854G, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

WHENEVER ENLISTED MEN OF THE FLEET RESERVE, TRANSFERRED THERETO AFTER MORE THAN SIXTEEN YEARS' SERVICE * * * PERFORM ACTIVE DUTY AFTER JULY 1, 1925, SUCH ACTIVE DUTY, EXCEPT THAT WHICH THEY ARE REQUIRED TO PERFORM IN TIME OF PEACE UNDER SECTION 854E OF THIS TITLE, SHALL BE INCLUDED IN THE COMPUTATION OF THEIR TOTAL SERVICE FOR THE PURPOSE OF COMPUTING THEIR RETAINER OR RETIRED PAY WHEN IN AN INACTIVE- DUTY STATUS, AND IN THE COMPUTATION OF THEIR RETAINER OR RETIRED PAY ALL ACTIVE DUTY SO PERFORMED SUBSEQUENT TO THE EFFECTIVE DATE OF TRANSFER TO THE FLEET RESERVE OR TO THE RETIRED LIST SHALL BE COUNTED FOR THE PURPOSE OF COMPUTING PERCENTAGE RATES AND INCREASES WITH RESPECT TO THEIR RETAINER OR RETIRED PAY AND SHALL BE BASED ON THE ENLISTED PAY RECEIVED BY THEM AT THE TIME THEY RESUME INACTIVE DUTY STATUS, INCLUDING INCREASES IN CONSEQUENCE OF ADVANCEMENT IN RATING, LONGEVITY, AND EXTRAORDINARY HEROISM: PROVIDED, THAT SUCH PAY SHALL NOT EXCEED 75 PERCENTUM OF THE BASE AND LONGEVITY PAY OF THE HIGHEST RATING TO WHICH ENTITLED UNDER THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT ACTIVE DUTY PERFORMED DURING ANY PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT SHALL BE CONSIDERED FOR THE PURPOSE OF THIS SECTION AS NOT BEING ACTIVE DUTY IN TIME OF PEACE REQUIRED BY SECTION 854E * * * AND PROVIDED FURTHER, THAT PERSONS OF THE CLASSES DESCRIBED IN THIS SECTION WHO HAVE BEEN RETIRED OR RETURNED TO AN INACTIVE DUTY STATUS PRIOR TO AUGUST 10, 1946, SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RETURN TO AN INACTIVE DUTY STATUS. ( ITALICS SUPPLIED.)

IT WAS HELD IN THE CASE OF SANDERS V. UNITED STATES, 120 C.1CLS. 501, THAT, BY VIRTUE OF THE ADDED SECTION 208, MEMBERS TRANSFERRED TO THE FLEET RESERVE AFTER 16 YEARS' SERVICE, WHO WERE RECALLED TO ACTIVE DUTY IN WORLD WAR II AND WHOSE PERIOD OF SUCH ACTIVE DUTY, WHEN ADDED TO THEIR PRIOR ACTIVE NAVAL SERVICE TOTALED MORE THAN 20 YEARS OF ACTIVE NAVAL SERVICE, WERE ENTITLED, UPON RETURN TO AN INACTIVE STATUS, TO THE PAY PROVIDED FOR MEMBERS WHO ENLISTED IN THE NAVY ON, OR PRIOR TO JULY 1, 1925, AND WERE TRANSFERRED TO THE FLEET RESERVE AFTER 20 OR MORE YEARS OF NAVAL SERVICE. IN THE SANDERS CASE THE COURT EMPHASIZED THE FACT THAT UNDER THE 1946 ACT CONGRESS INTENDED 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 THE RETIRED OR INACTIVE DUTY PAY TO WHICH THEY WERE ENTITLED. SEE PAGES 508, 510 OF THAT DECISION. THAT CONNECTION, IT WILL BE NOTED THAT THE PLAINTIFF IN THAT CASE QUALIFIED AS A 20-YEAR MAN FOR THE REASON THAT THE ACTIVE SERVICE PERFORMED BY HIM AFTER TRANSFER TO THE FLEET RESERVE ( AUGUST 22, 1940, TO JULY 11, 1945) WAS "WARTIME SERVICE" AND, HENCE, WHEN ADDED TO HIS SERVICE PRIOR TO THE DATE OF TRANSFER AMOUNTED TO MORE THAN 20 YEARS.

IN CONSIDERING CERTAIN QUESTIONS ARISING OUT OF THE SANDERS CASE, IN DECISION DATED OCTOBER 3, 1952, 32 COMP. GEN. 159, WE HELD THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE BUT PRIOR TO SEPTEMBER 8, 1939--- THE DATE A NATIONAL EMERGENCY WAS PROCLAIMED TO EXIST--- MAY NOT BE INCLUDED IN DETERMINING ELIGIBILITY FOR AN ADJUSTMENT IN RETAINER OR RETIRED PAY UNDER THE SANDERS DECISION. ALSO, SEE 26 COMP. GEN. 804, ANSWER TO QUESTION (1). THE JUDGMENT OF THE COURT OF CLAIMS IN YOUR FAVOR ENTERED ON A STIPULATION IS NOT NECESSARILY BINDING ON US FOR PERIODS PROCEEDING THE PERIOD COVERED IN THE JUDGMENT WHERE, AS HERE, THE STATUTORY REQUIREMENTS HAVE NOT BEEN FULLY MET. YOUR PEACETIME SERVICE OF 5 YEARS, 5 MONTHS AND 6 DAYS, PERFORMED AFTER TRANSFER TO THE FLEET RESERVE BUT PRIOR TO THE DATE OF THE NATIONAL EMERGENCY ( SEPTEMBER 8, 1939) MAY NOT BE INCLUDED IN DETERMINING YOUR ELIGIBILITY FOR AN ADJUSTMENT IN RETAINER OR RETIRED PAY. SINCE YOU HAD LESS THAN 19 1/2 YEARS' SERVICE, NOT COUNTING SUCH PEACETIME SERVICE, IT FOLLOWS THAT YOUR CASE DOES NOT COME WITHIN THE SCOPE OF SECTION 208 AS APPLIED IN THE SANDERS CASE. HENCE, THERE IS NO BASIS FOR ALLOWING ANY PART OF YOUR CLAIM PRIOR TO JULY 30, 1948.