B-147928, SEP. 21, 1962

B-147928, SEP. 21, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2, 1962, REQUESTING RECONSIDERATION OF OUR DECISIONS OF MARCH 27 AND JULY 11, 1962, IN THE CASE OF DIONICIO MANUEL, USN, RETIRED, WHEREIN WE HELD THAT MANUEL, A FLEET RESERVIST WHO HAD BEEN TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1179, AS AMENDED, 34 U.S.C. 854E (1952 ED.), WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829, AS AMENDED, 37 U.S.C. 311, FOR THE REASON THAT HE HAD MADE NO ELECTION OF SUCH BENEFITS UNDER SECTION 411 OF THE ACT.

WITH YOUR LETTER YOU ENCLOSED A COPY OF A PRINTED LETTER ADDRESSED TO FRANK LOUIS COZZA BY THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF OCTOBER 16, 1951, ADVISING THE ADDRESSEE THAT HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 411 AND YOU STATE THAT IT IS YOUR UNDERSTANDING THAT THE SAME LETTER WAS SENT TO DIONICIO MANUEL. WE HAVE BEEN INFORMALLY ADVISED THAT MANUEL'S PERSONNEL FILE CONTAINS NO COPY OF A LETTER DENYING HIM THE RIGHT TO FILE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT.

YOU HAVE REFERRED AGAIN TO THE DECISION IN THE CASE OF AFLAGUE, ET AL. (GREAVES) V. UNITED STATES, CT.CL.NO. 212-56, DECIDED JANUARY 12, 1962, AND YOU STATE THAT IN THAT DECISION THE COURT RULED THAT THE ACTION OF THE NAVY DEPARTMENT IN DEPRIVING GREAVES OF THE OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411 WAS NOT ERRONEOUS. THE COURT STATED THE QUESTION PRESENTED IN THAT PETITION AS FOLLOWS:

"THE QUESTION PRESENTED HERE IS WHETHER PLAINTIFF, WHO WAS RETIRED FOR PHYSICAL DISABILITY NOT INCURRED IN ACTIVE SERVICE, IS ENTITLED TO CREDIT FOR THE INTERIM INACTIVE PERIOD OF SERVICE WHEN HE WAS IN THE FLEET RESERVE AND ON THE RETIRED LIST OF THE NAVY BETWEEN HIS TWO PERIODS OF ACTIVE DUTY, IN THE COMPUTATION OF HIS BASIC PAY AS A FACTOR IN COMPUTING HIS RETIRED PAY UNDER HIS ELECTION OF METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.'

WHILE THE COURT TREATED GREAVES' PAY AS BEING GOVERNED BY SECTION 511 OF THE CAREER COMPENSATION ACT, NO CONTESTED ISSUE AS TO THE RIGHTS OF A PERSON RETIRED FOR DISABILITY TO THE BENEFITS OF THAT SECTION WITHOUT MAKING AN AFFIRMATIVE ELECTION UNDER SECTION 411 WAS SUBMITTED FOR THE COURT'S CONSIDERATION AND NO DECISION WAS RENDERED ON THAT POINT. THE GOVERNMENT RELIED ON ANOTHER DEFENSE.

YOU SUGGEST THAT, ALTHOUGH MANUEL MADE NO ELECTION UNDER SECTION 411, HE RECEIVED HIS SAVED PAY UNDER SECTION 511, RATHAN SECTION 519, BY VIRTUE OF THE NAVY DEPARTMENT'S DETERMINATION THAT HE WAS TO BE TREATED AS A NON- DISABILITY RETIREE. UNDER THIS THEORY MANUEL WOULD HAVE TO BE REGARDED AS COMING WITHIN THE CLASSES OF PERSONS AUTOMATICALLY COVERED BY SECTION 511. SINCE HE WAS TRANSFERRED TO THE RETIRED LIST FOR PHYSICAL DISABILITY, HOWEVER, HE IS WITHIN THE CLASSES OF PERSONS SPECIFIED IN SECTION 411 AS COVERED THEREBY, AND THERE IS NO INDICATION THAT CONGRESS INTENDED THE SAME PERSONS TO BE COVERED AUTOMATICALLY BY BOTH SECTIONS 411 AND 511. SEE DECISION OF APRIL 13, 1950, 29 COMP. GEN. 404, AT PAGE 407, WHEREIN IT WAS HELD THAT FLEET RESERVISTS TRANSFERRED BEFORE OCTOBER 1, 1949, TO THE RETIRED LIST FOR PHYSICAL DISABILITY UNDER THE NAVAL RESERVE ACT OF 1938 ARE WITHIN THE CLASSES OF PERSONS COVERED BY SECTION 411 OF THE CAREER COMPENSATION ACT AND THEIR RETIRED PAY IS NOT AFFECTED BY SECTION 511 EXCEPT TO THE EXTENT THAT IT IS MADE APPLICABLE BY AN ELECTION UNDER SECTION 411.

THE EXCERPT FROM OUR DECISION OF MARCH 27, 1962, TO THE EFFECT THAT ALL OTHER MEMBERS RETIRED PRIOR TO OCTOBER 1, 1949, CAME UNDER THE PROVISIONS OF SECTION 511 WITHOUT CHOICE, WHICH WAS QUOTED IN YOUR LETTER, REFERS TO MEMBERS RETIRED BEFORE OCTOBER 1, 1949, WHO WERE NOT ELIGIBLE TO ELECT UNDER SECTION 411 AND THEREFORE CAME UNDER SECTION 511 WITHOUT CHOICE. SINCE MANUEL WAS ENTITLED TO FILE AN ELECTION UNDER SECTION 411, AS SHOWN ABOVE, HE IS NOT A MEMBER WHO CAME UNDER THE PROVISIONS OF SECTION 511. NO INFORMATION HAS BEEN FURNISHED THIS OFFICE WHICH INDICATES IN ANY WAY THAT THE DEPARTMENT OF THE NAVY MADE A DETERMINATION THAT HE WAS TO BE TREATED AS A NON-DISABILITY RETIREE.

THE FILE BEFORE US CONTAINS NO EVIDENCE OF ERRONEOUS INFORMATION HAVING BEEN FURNISHED TO MANUEL WHICH ADVERSELY AFFECTED HIS RIGHTS UNDER THE CAREER COMPENSATION ACT. AS YOU WERE ADVISED PREVIOUSLY, AN ELECTION TO RECEIVE RETIRED PAY UNDER SECTION 511 WOULD HAVE AVAILED HIM NO PECUNIARY BENEFIT PRIOR TO APRIL 1, 1955, INASMUCH AS THE RETIRED PAY HE RECEIVED FROM OCTOBER 1, 1949, $140.25 PER MONTH COMPUTED ON A SAVED-PAY BASIS UNDER SECTION 519, EXCEEDED THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER SECTION 511 (B), $138.92 PER MONTH.

ACCORDINGLY, NO BASIS IS FOUND FOR MODIFICATION OF OUR PREVIOUS DECISIONS IN THIS CASE.