B-128594, NOV. 22, 1965

B-128594: Nov 22, 1965

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THROUGH COMPTROLLER OF THE NAVY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 22. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. WOODWARD WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON OCTOBER 19. WAS PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE AUGUST 1. IN WHICH HIS DISABILITY WAS RATED AT "ZERO" PERCENTUM. WOODWARD'S RETIREMENT PAY WAS COMPUTED EFFECTIVE AS OF OCTOBER 1. IT WAS HELD THAT INACTIVE TIME IN THE FLEET NAVAL RESERVE (OR FLEET RESERVE) COULD BE INCLUDED IN COMPUTING DISABILITY RETIREMENT PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) UNDER AN ELECTION OF OPTION (A) IN SECTION 411 OF THE 1949 LAW. WOODWARD'S DISABILITY RETIREMENT PAY WOULD HAVE BEEN COMPUTED EFFECTIVE FROM OCTOBER 1.

B-128594, NOV. 22, 1965

TO COMMANDER M. L. CONNER, SC, USN, DISBURSING OFFICER, RETIRED PAY DEPARTMENT, THROUGH COMPTROLLER OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPER BASIS ON WHICH TO COMPUTE THE RETIRED PAY OF ELMER C. WOODWARD, CSM, USN, RETIRED (134 65 36), EFFECTIVE FROM DECEMBER 1, 1964. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-868 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

MR. WOODWARD WAS TRANSFERRED TO THE FLEET NAVAL RESERVE ON OCTOBER 19, 1931, AND RELEASED TO INACTIVE DUTY THAT SAME DATE. HE LATER SERVED ON ACTIVE DUTY FROM FEBRUARY 26, 1940, TO DECEMBER 14, 1946, INCLUSIVE. WAS PLACED ON THE RETIRED LIST OF THE NAVY EFFECTIVE AUGUST 1, 1940, FOR PHYSICAL DISABILITY. THUS, EFFECTIVE OCTOBER 1, 1949, HIS RETIRED PAY STATUS CAME SQUARELY WITHIN THE PURVIEW OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823.

THE RECORD SHOWS THAT ACTING ON THE BASIS OF CERTAIN INFORMATION FURNISHED TO HIM BY THE FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, IN FIRST ENDORSEMENT TO LETTER DATED OCTOBER 19, 1951, IN WHICH HIS DISABILITY WAS RATED AT "ZERO" PERCENTUM, MR. WOODWARD ON OCTOBER 22, 1951, ELECTED UNDER SECTION 411 OF THE 1949 LAW TO RECEIVE RETIREMENT PAY ON A YEARS-OF-SERVICE BASIS. IN ACCORDANCE WITH THAT ELECTION MR. WOODWARD'S RETIREMENT PAY WAS COMPUTED EFFECTIVE AS OF OCTOBER 1, 1949, ON THE BASIS OF 57 1/2 PERCENT OF THE MONTHLY ACTIVE DUTY BASIC PAY OF ENLISTED PAY GRADE E 7, WITH OVER 22 BUT NOT OVER 26 YEARS OF CREDITABLE SERVICE.

IN SELIGA V. UNITED STATES, 137 CT.CL. 710, DECIDED MARCH 6, 1957, IT WAS HELD THAT INACTIVE TIME IN THE FLEET NAVAL RESERVE (OR FLEET RESERVE) COULD BE INCLUDED IN COMPUTING DISABILITY RETIREMENT PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) UNDER AN ELECTION OF OPTION (A) IN SECTION 411 OF THE 1949 LAW. UNDER THE SELIGA RULE, AND IF HE MET THE REQUIREMENTS PRESCRIBED IN TITLE IV OF THE 1949 LAW, MR. WOODWARD'S DISABILITY RETIREMENT PAY WOULD HAVE BEEN COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, ON THE BASIS OF 57 1/2 PERCENT OF THE MONTHLY ACTIVE DUTY BASIC PAY OF ENLISTED PAY GRADE E-7, WITH OVER 30 YEARS OF CREDITABLE SERVICE.

MR. WOODWARD'S SUIT FOR INCREASED RETIRED PAY COVERING THE PERIOD "FROM MAY 1, 1950, UNTIL THE DATE OF JUDGMENT" ADVANCED ON THE SAME BASIS AS THE SELIGA CASE, WHICH WAS THEN PENDING IN THE COURT OF CLAIMS, WAS FILED ON MAY 17, 1956, AS PLAINTIFF NO. 34 IN AFLAGUE, ET AL. V. UNITED STATES, CT.CL. NO. 212-56. SUBSEQUENTLY, UPON THE FILING OF A MOTION TO DISMISS HIS ACTION AS PLAINTIFF NO. 34 (THE MOTION WAS HELD IN ESCROW BY THE DEPARTMENT OF JUSTICE), MR. WOODWARD'S SELIGA TYPE CLAIM THAT HAD BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 30, 1959, FROM HIS ATTORNEYS FOR THE PERIOD "FROM OCTOBER 1, 1949 TO THE DATE OF SETTLEMENT OF THIS CLAIM" WAS DISALLOWED BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED FEBRUARY 25, 1963, FOR THE REASON THAT---

"THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, HAS CONCLUDED THAT THE DISABILITY FOR WHICH YOU WERE PLACED UPON THE RETIRED LIST WAS NOT INCURRED WHILE YOU WERE ENTITLED TO RECEIVE ACTIVE DUTY PAY AS PRESCRIBED IN SECTION 402 (A) AND (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816.'

THE ISSUE RAISED IN THE DISALLOWANCE OF FEBRUARY 25, 1963, NAMELY, WHETHER MR. WOODWARD DID NOR DID NOT INCUR THE DISABILITY FOR WHICH HE WAS PLACED ON THE RETIRED LIST EFFECTIVE AUGUST 1, 1940, WHILE IN RECEIPT OF ACTIVE DUTY PAY HAS BEEN IN DISPUTE EVER SINCE. THE ACTION TAKEN IN THE SETTLEMENT OF FEBRUARY 25, 1963, WAS UPHELD BY THIS OFFICE IN DECISION OF MARCH 28, 1963, B-128594, COPY HEREWITH, ON THE BASIS OF A REPORT DATED FEBRUARY 14, 1963, FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, IN WHICH IT WAS STATED THAT IN THE OPINION OF THE BUREAU "* * * THE DISABILITY FOR WHICH WOODWARD WAS RETIRED WAS NOT INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY.'

UPON THE REQUEST OF MR. WOODWARD'S ATTORNEYS FOR RECONSIDERATION OF THE MATTER, THE DISALLOWANCE OF FEBRUARY 25, 1963, WAS AGAIN UPHELD IN DECISION OF AUGUST 9, 1963, B-128594, COPY HEREWITH, BY REASON OF THE SUPPLEMENTAL REPORT DATED JUNE 28, 1963, FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, SETTING FORTH IN MORE DETAIL THE FACTS CONCERNING MR. WOODWARD'S DISABILITY RETIRED STATUS AND CONTAINING THE EXPRESS STATEMENTS THAT (1) WOODWARD'S ,PHYSICAL DISABILITY WAS NEITHER INCURRED IN NOR AGGRAVATED BY A PERIOD OF ACTIVE SERVICE BUT RATHER, THE DEGREE OF DISABILITY AT THE TIME OF * * * RETIREMENT AND RERETIREMENT WAS DUE TO THE NATURAL PROGRESSION OF A DEVELOPMENTAL DEFECT WHICH IN FACT EXISTED PRIOR TO * * * ENTRY INTO THE NAVAL SERVICE" AND (2) THAT IN THE OPINION OF THE BUREAU MR. WOODWARD "* * * DOES NOT QUALIFY FOR THE BENEFITS OF TITLE 4 (IV) OF THE CAREER COMPENSATION ACT OF 1949.'

ON NOVEMBER 30, 1964, THE DEPARTMENT OF JUSTICE FILED "DEFENDANT'S ADMISSION OF LIABILITY" IN WHICH IT WAS CONCEDED THAT THE PLAINTIFF, MR. WOODWARD,"IS ENTITLED, IN ESTABLISHING THE BASIC PAY FACTOR TO BE USED IN RECOMPUTING HIS RETIRED PAY FROM MAY 1, 1950, TO CREDIT FOR INACTIVE TIME BETWEEN THE DATE OF TRANSFER TO THE FLEET RESERVE AND RECALL TO ACTIVE DUTY" CITING THE SELIGA DECISION OF MARCH 6, 1957, AS AUTHORITY THEREFOR. IN CONNECTION WITH THE ABOVE, THE DEPARTMENT OF JUSTICE, IN A LETTER DATED JULY 9, 1964, HAD REQUESTED THE DEPARTMENT OF THE NAVY TO REEXAMINE THE WOODWARD MATTER AND SUBMIT RECOMMENDATIONS REGARDING THE FILING OF AN ADMISSION OF LIABILITY IN THE CASE. THE DEPARTMENT OF THE NAVY IN LETTER OF NOVEMBER 9, 1964, REPLIED AS FOLLOWS:

"IN RESPONSE TO YOUR LETTER ADDRESSED TO THE DEPARTMENT OF THE NAVY DATED 9 JULY 1964, YOU ARE ADVISED THAT THE BUREAU OF MEDICINE AND SURGERY REMAINS OF THE VIEW THAT WOODWARD'S DISABILITY WAS NEITHER INCURRED IN NOR AGGRAVATED BY ACTIVE SERVICE IN THE UNITED STATES NAVY. FOR THIS REASON IT IS IMPOSSIBLE FOR THIS CASE TO BE SETTLED ADMINISTRATIVELY. IT IS RECOGNIZED, HOWEVER, THAT BY A LETTER DATED 19 OCTOBER 1951, WOODWARD WAS ADVISED THAT HE WAS PLACED ON THE RETIRED LIST PRIOR TO 1 OCTOBER 1949 BY REASON OF PHYSICAL DISABILITY INCURRED AS A RESULT OF ACTIVE SERVICE AND THAT BY A LETTER DATED 22 OCTOBER 1951, HE MADE A PROPER ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 824.'

JUDGMENT WAS ENTERED ON FEBRUARY 12, 1965, IN FAVOR OF MR. WOODWARD IN THE AMOUNT OF $1,599.67, REPRESENTING INCREASED RETIRED PAY UNDER THE SELIGA RULE FOR THE PERIOD MAY 1, 1950, TO NOVEMBER 30, 1964, INCLUSIVE. THE ATTORNEY FOR MR. WOODWARD, BY LETTER OF MARCH 12, 1965, REQUESTED RECONSIDERATION OF THE SELIGA TYPE CLAIM COVERING THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, INCLUSIVE, AND IN ADDITION IN A LETTER DATED JULY 26, 1965, THE ATTORNEY FURTHER REQUESTED THAT THIS OFFICE INSTRUCT THE DEPARTMENT OF THE NAVY TO ADJUST MR. WOODWARD'S RETIRED PAY ON THE SAME BASIS FOR THE PERIOD SUBSEQUENT TO NOVEMBER 30, 1964, THEREBY RAISING THE IDENTICAL ISSUE PRESENTED IN YOUR LETTER OF JULY 22, 1965.

IN DECISIONS DATED JUNE 22, 1965, AND SEPTEMBER 21, 1965, B-128594, COPIES ALSO ENCLOSED, MR. WOODWARD'S CLAIM FOR SELIGA TYPE BENEFITS FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, INCLUSIVE (BARRED FROM CONSIDERATION OF THE COURT OF CLAIMS BY THE PROVISIONS OF 28 U.S.C. 2501) WAS DENIED NOTWITHSTANDING THE JUDGMENT ENTERED IN HIS FAVOR ON FEBRUARY 12, 1965. SEE THE LAST PARAGRAPH BEGINNING ON PAGE 1 OF THE DECISION OF JUNE 22, 1965, IN WHICH IT IS POINTED OUT THAT THE JUDGMENT OF FEBRUARY 12, 1965, WHICH IS BASED SOLELY ON AN ADMISSION OF LIABILITY DOES NOT ESTABLISH ENTITLEMENT TO THE RETIREMENT PAY IN QUESTION FOR ANY PERIOD OTHER THAN THAT COVERED BY THE JUDGMENT ITSELF (MAY 1, 1950, TO NOVEMBER 30, 1964, INCLUSIVE). ALSO, NOTE IN PARTICULAR THE PARAGRAPH ON PAGE 2 OF THE DECISION OF SEPTEMBER 21, 1965, WHERE IT WAS STATED THAT THE SAME REASONS WHICH BAR ENTITLEMENT TO THE ADJUSTMENT CLAIMED FOR THE PERIOD CLAIMED OCTOBER 1, 1949, TO APRIL 30, 1950, INCLUSIVE, ALSO BAR ENTITLEMENT TO A SIMILAR ADJUSTMENT FOR THE PERIOD SUBSEQUENT TO NOVEMBER 30, 1964. CF. 41 COMP. GEN. 283. YOUR BASIC QUESTION AS TO WHETHER MR. WOODWARD IS ENTITLED TO RETIRED PAY FROM DECEMBER 1, 1964, BASED ON OVER 30 YEARS OF CREDITABLE SERVICE FOR BASIC PAY PURPOSES (THE SELIGA RULE) IS ANSWERED IN THE NEGATIVE.

IN PARAGRAPH 5 OF YOUR LETTER IT IS STATED THAT IN APRIL 1965 YOUR OFFICE ADJUSTED MR. WOODWARD'S RETIRED PAY RETROACTIVELY TO DECEMBER 1, 1964, ON THE SAME BASIS AS THE AMOUNT HE RECEIVED UNDER THE COURT OF CLAIMS JUDGMENT OF FEBRUARY 12, 1965, ABOVE REFERRED TO. PARAGRAPH 6 OF YOUR LETTER DISCLOSES THAT UPON SUBSEQUENTLY RECEIVING INFORMATION SHOWING THAT THE JUDGMENT OF FEBRUARY 12, 1965, WAS BASED ON AN ADMISSION OF LIABILITY BY THE GOVERNMENT (DEPARTMENT OF JUSTICE) AS DISTINGUISHED FROM A JUDGMENT ON THE MERITS, YOUR OFFICE THEN READJUSTED MR. WOODWARD'S RETIRED PAY EFFECTIVE FROM JUNE 1, 1965, TO EXCLUDE CREDIT FOR HIS INACTIVE SERVICE IN THE FLEET RESERVE. IT THUS APPEARS THAT MR. WOODWARD HAS BEEN OVERPAID BY YOUR OFFICE FOR THE PERIOD DECEMBER 1, 1964, TO MAY 31, 1965, INCLUSIVE.

IN PARAGRAPH 8 OF YOUR LETTER SPECIFIC REFERENCE IS MADE TO DECISION OF THIS OFFICE DATED SEPTEMBER 3, 1959, 39 COMP. GEN. 152, COUPLED WITH THE COMMENT THAT UNDER THE HOLDING OF THAT DECISION MR. WOODWARD MAY BE ENTITLED TO THE BENEFITS OF THE SELIGA RULE. THAT DECISION HELD THAT THE RE-RETIREMENT CONCEPT AS APPLIED TO RETIRED MEMBERS OF THE UNIFORMED SERVICES BY THE COURT OF CLAIMS IN BAILEY V. UNITED STATES, 134 CT.CL. NO. 471 (1956); TRAVIS V. UNITED STATES, 137 CT.CL. 148 (1956); AND SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957) TO PERMIT ADDITIONAL RETIRED PAY BASED ON INACTIVE TIME ON A RETIRED LIST OR IN THE FLEET RESERVE UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949 WOULD BE FOLLOWED BY THIS OFFICE IN SIMILAR CASES INVOLVING RE-RETIREMENTS BEFORE OCTOBER 1, 1949 "* * * WHERE THE MEMBERS HAVE ELECTED TO QUALIFY FOR RETIRED PAY UNDER SECTION 411 OF THE 1949 ACT.' WE AGREE THAT IF MR. WOODWARD MET THE REQUIREMENT PRESCRIBED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 ("PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY") HE WOULD BE ENTITLED TO THE BENEFITS OF THE SELIGA RULE. HOWEVER, ON THE RECORD BEFORE THIS OFFICE MR. WOODWARD DOES NOT MEET SUCH REQUIREMENT AND HENCE HIS RETIRED PAY STATUS MAY NOT BE VIEWED AS COMING WITHIN THE PURVIEW OF THE DECISION OF SEPTEMBER 3, 1959.

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