B-130313, APR. 5, 1957

B-130313, APR. 5, 1957

TO MR. LOUIS NELSON SHANK:

REFERENCE IS MADE TO LETTER DATED MARCH 4, 1957, FROM MR. THOMAS W. GITTINGS, JR., REQUESTING RECONSIDERATION OF YOUR CLAIM FOR AN ADJUSTMENT OF RETIRED PAY BELIEVED TO BE DUE WHEN COMPUTED ON THE BASIS OF ONE-HALF OF YOUR BASE PAY FOR THE PERIOD SEPTEMBER 20, 1945 THROUGH FEBRUARY 2, 1949, INCIDENT TO YOUR TRANSFER TO THE FLEET RESERVE, AS BOATSWAIN. OUR SETTLEMENT DATED MARCH 15, 1956, YOUR CLAIM WAS DISALLOWED SINCE IT APPEARED THAT YOU DID NOT HAVE SUFFICIENT SERVICE TO MEET THE REQUIREMENTS OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED.

IN A REPORT DATED MAY 4, 1955, THE DEPARTMENT OF THE NAVY FURNISHED THE FOLLOWING INFORMATION IN CONNECTION WITH YOUR TRANSFER TO THE FLEET NAVAL RESERVE:

CHART

"TERM ENLISTED DISCHARGED DEDUCTIONS SERVICE FOR

TRANSFER

4 YRS 12-10-01 12- 9-05 0- 0- 1 (AWOL) 3-11-29

4 YRS 2- 6-07 2-25-11 0- 4- 1 (AWOL) 3- 8-19

4 YRS 3- 6-11 12-28-14 4- 0- 0

4 YRS 12-29-14 12-28-18 4- 0- 0

TOTAL NAVAL SERVICE AT TIME OF TRANSFER 15- 8-18

ACTIVE DUTY 2-20-42 TO 9-20-45 3- 7- 1

DATE OF RETIREMENT: 1 MAY 1933"

IT APPEARS THAT ON OCTOBER 16, 1956, MR. GITTINGS REQUESTED THE DEPARTMENT OF THE NAVY TO CORRECT THE REPORT OF YOUR SERVICE SO AS TO REFLECT THAT AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE YOU HAD MORE THAN 16 YEARS OF SERVICE. THE BASIS FOR HIS CONTENTION WAS THAT DEDUCTION FOR "BAD TIME" (ABSENCE FROM NAVAL SERVICE WITHOUT OFFICIAL LEAVE) WAS MADE AFTER YOUR TRANSFER, THE CONTENTION BEING MADE THAT IF YOUR SERVICE "FOR TRANSFER PURPOSE WAS LESS THAN SIXTEEN YEARS, AND WAS SO DETERMINED AT THE TIME OF TRANSFER, NO AUTHORITY EXISTED FOR * * * TRANSFER TO THE FLEET RESERVE.' (IT IS DOUBTFUL THAT THERE IS ANY DESIRE TO HAVE THE LEGALITY OF YOUR TRANSFER TO FLEET NAVAL RESERVE LITIGATED ON THE BASIS OF THE CONTEMPORANEOUS RECORDS, INCLUDING THE EFFECT OF SUCH ABSENCE.)

BY FIRST ENDORSEMENT DATED DECEMBER 3, 1956, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED HERE A LETTER DATED NOVEMBER 19, 1956, OF THE CHIEF OF NAVAL PERSONNEL, WHEREIN IT IS STATED WITH RESPECT TO YOUR SERVICE, THAT:

"* * * THE FOLLOWING INFORMATION IS FURNISHED FROM SUBJECT MAN'S RECORD IN THE BUREAU FOR ANY ACTION THAT MAY BE DEEMED APPROPRIATE.

"A. SERVICE AS COMPUTED AT TIME OF TRANSFER TO THE FLEET RESERVE, CLASS 1 -C, ON 28 DECEMBER 1918:

TABLE

TERM ENLISTED DISCHARGED SERVICE FOR TRANSFER

4 YRS 12-10-01 12- 9-05 4- 0- 0

4 YRS 2- 6-07 2-25-11 4- 0-20

4 YRS 3- 6-11 11-28-14 4- 0- 0

4 YRS 12-29-14 12-28-18 4- 0- 0

TOTAL NAVAL SERVICE CREDITED AT TIME OF

TRANSFER 16- 0-20

SHANK WAS ABSENT OVER LEAVE FOR 1 DAY ON 12-21-05 AND FOR A PERIOD OF 4 MONTHS, 1 DAY FROM 12-6-07 TO 4-4-08, WHICH WAS NOT DEDUCTED AT THE TIME OF TRANSFER.

"B. ACTIVE DUTY PERFORMED SUBSEQUENT TO 8 SEP 1939 FROM 2-20-42 TO 9-20- 45.

3- 7- 1

"C. DATE OF RETIREMENT: 1 MAY 1933.'

MR. GITTINGS NOW CONTENDS THAT AS THIS CORRECTED REPORT SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE WITH 16 OR MORE YEARS OF ACTIVE SERVICE, YOU ARE NOW ENTITLED TO RECEIVE RETIRED PAY AT THE RATE OF ONE- HALF OF BASE PAY UNDER THE NAVAL RESERVE ACT OF JUNE 25, 1938, AS AMENDED, UNDER AUTHORITY OF SANDERS V. UNITED STATES, 120 CT.CLS. 501. MR. GITTINGS ALSO REQUESTS THAT THE CLAIM BE EXTENDED FROM SEPTEMBER 20, 1945 THROUGH THE DATE OF SETTLEMENT, AND ADVISES US THAT A MOTION TO DISMISS YOUR PENDING ACTION IN THE COURT OF CLAIMS HAS BEEN SUBMITTED TO THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW, SUBJECT TO A SATISFACTORY SETTLEMENT OF YOUR CLAIM BY OUR CLAIMS DIVISION.

THE ACT OF AUGUST 29, 1916, 39 STAT. 589, PURSUANT TO WHICH YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE, ON DECEMBER 28, 1918, PROVIDED IN PERTINENT PART AS FOLLOWS:

"IN ADDITION TO THE ENROLLMENTS IN THE FLEET NAVAL RESERVE ABOVE PROVIDED, THE SECRETARY OF THE NAVY IS AUTHORIZED TO TRANSFER TO THE FLEET NAVAL RESERVE AT ANY TIME WITHIN HIS DISCRETION ANY ENLISTED MAN OF THE NAVAL SERVICE WITH TWENTY OR MORE YEARS' NAVAL SERVICE, AND ANY ENLISTED MAN, AT THE EXPIRATION OF A TERM OF ENLISTMENT WHO MAY BE THEN ENTITLED TO AN HONORABLE DISCHARGE, AFTER SIXTEEN YEARS' NAVAL SERVICE: PROVIDED, THAT SUCH TRANSFERS SHALL ONLY BE MADE UPON VOLUNTARY APPLICATION AND IN THE RATING IN WHICH THEN SERVING, AND THE MEN SO TRANSFERRED SHALL BE CONTINUED IN THE FLEET NAVAL RESERVE UNTIL DISCHARGED BY COMPETENT AUTHORITY.

"* * * PROVIDED, THAT FOR ALL PURPOSES OF THIS ACT A COMPLETE ENLISTMENT DURING MINORITY AND ANY ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF ENLISTMENT BY SPECIAL ORDER OF THE SECRETARY OF THE NAVY SHALL BE CONSIDERED AS FOUR YEARS' SERVICE. * * *"

SIMILAR PROVISIONS RELATING TO EARLY DISCHARGES ARE CONTAINED IN THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1086 AND THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 854 (A).

WHILE YOUR SECOND ENLISTMENT, FROM FEBRUARY 6, 1907 TO FEBRUARY 25, 1911, EXTENDED OVER A PERIOD OF 4 YEARS AND 20 DAYS, THERE OCCURRED DURING SUCH TERM A PERIOD OF UNAUTHORIZED ABSENCE OF 4 MONTHS AND 1 DAY, THEREBY REDUCING YOUR NAVAL SERVICE DURING THAT ENLISTMENT TO 3 YEARS, 8 MONTHS AND 19 DAYS. HENCE THE PROPRIETY OF CREDITING YOU WITH 4 YEARS AND 20 DAYS SERVICE FOR THIS ENLISTMENT IS AT LEAST DOUBTFUL, AND IN CONJUNCTION WITH YOUR OTHER ENLISTMENTS, IT IS OBVIOUS THAT YOU DID NOT HAVE THE NECESSARY 16 YEARS SERVICE (ACTUAL OR CONSTRUCTIVE) FOR TRANSFER TO THE FLEET RESERVE. NEVERTHELESS, YOU WERE, IN FACT, SO TRANSFERRED BY THE SECRETARY OF THE NAVY AND WE DO NOT NOW QUESTION YOUR MEMBERSHIP, NOTWITHSTANDING YOU DID NOT HAVE 16 YEARS OF NAVAL SERVICE AS CONTEMPLATED BY LAW AND PERTINENT REGULATIONS. SEE 5 COMP. GEN. 189. HOWEVER, SINCE IT IS APPARENT THAT THE SANDERSCASE GAVE NO CONSIDERATION TO A STATE OF FACTS SUCH AS HERE INVOLVED, THERE IS EXTREME DOUBT THAT THE CONCLUSION IN THAT CASE MAY BE ACCEPTED AS AUTHORITY FOR THE VIEW THAT YOUR TOTAL ACTIVE SERVICE, PRIOR AND SUBSEQUENT TO TRANSFER, CONSTITUTES SUFFICIENT SERVICE TO ENTITLE YOU TO RETAINER OR RETIRED PAY AT ONE-HALF OF BASE PAY UNDER THE PERTINENT LAW. NOR DO WE CONSIDER THE REPORT OF THE BUREAU OF NAVAL PERSONNEL OF NOVEMBER 17, 1956, THAT YOU HAD 16 YEARS, 20 DAYS SERVICE AT TIME OF TRANSFER, SUCH A CORRECTION OF THE RECORD AS WAS CONTEMPLATED BY THE SECOND PROVISO OF SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854A. ACCORDINGLY, IT IS CONCLUDED THAT THE DENIAL OF YOUR CLAIM WAS PROPER.