B-146185, FEB. 20, 1962
Highlights
HILLARD DAUGHERTY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15. YOU WERE NOT PAID RETIRED PAY COMPUTED ON THE 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE FORMULA PRIOR TO OCTOBER 1. YOU WERE PAID ONE-THIRD OF BASE PAY PLUS ALL PERMANENT ADDITIONS AS PROVIDED IN SECTION 203 OF THE NAVAL RESERVE ACT OF 1938. YOUR RETIRED PAY WAS COMPUTED ON THE 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE FORMULA AS PROVIDED IN METHOD (B). SECTION 511 OF THE 1949 ACT) WERE GREATER FOR THE PERIOD PRIOR TO APRIL 1. IT APPEARS TO BE YOUR BELIEF THAT SINCE CONSTRUCTIVE SERVICE IS CREDITABLE IN DETERMINING THE NUMBER OF YEARS (20) NECESSARY FOR SANDERS CASE BENEFITS. WE HAVE FOUND NO COURT DECISION WHICH SUPPORTS YOUR BELIEF.
B-146185, FEB. 20, 1962
TO MR. HILLARD DAUGHERTY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1961, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY BELIEVED TO BE DUE YOU AS A RETIRED FLEET RESERVIST FOR THE PERIOD AUGUST 3, 1950, TO DECEMBER 15, 1961.
CONTRARY TO YOUR BELIEF, YOU WERE NOT PAID RETIRED PAY COMPUTED ON THE 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE FORMULA PRIOR TO OCTOBER 1, 1949. YOU WERE PAID ONE-THIRD OF BASE PAY PLUS ALL PERMANENT ADDITIONS AS PROVIDED IN SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED. COMMENCING OCTOBER 1, 1949, YOUR RETIRED PAY WAS COMPUTED ON THE 2 1/2 PERCENT TIMES YEARS OF ACTIVE SERVICE FORMULA AS PROVIDED IN METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829. UPON RECEIPT OF A CLAIM FROM YOU FOR SANDERS CASE (120 CT.CL. 501) BENEFITS AND SINCE SUCH BENEFITS (ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS, PAYABLE UNDER THE SAVED PAY PROVISIONS OF METHOD (A), SECTION 511 OF THE 1949 ACT) WERE GREATER FOR THE PERIOD PRIOR TO APRIL 1, 1955, THAN THE RETIRED PAY PAID TO YOU UNDER METHOD (B), SETTLEMENT OF MARCH 28, 1961, ALLOWED YOU $139.98 REPRESENTING THE ADDITIONAL AMOUNT FOUND DUE FOR THE PERIOD AUGUST 3, 1950, TO MARCH 31, 1955.
IT APPEARS TO BE YOUR BELIEF THAT SINCE CONSTRUCTIVE SERVICE IS CREDITABLE IN DETERMINING THE NUMBER OF YEARS (20) NECESSARY FOR SANDERS CASE BENEFITS, SUCH CONSTRUCTIVE SERVICE MUST ALSO BE INCLUDED IN DETERMINING YEARS OF ACTIVE SERVICE UNDER METHOD (B) OF SECTION 511, THUS GIVING YOU 25 YEARS, RATHER THAN THE 22 YEARS OF ACTUAL ACTIVE SERVICE CURRENTLY BEING CREDITED TO YOU IN THE COMPUTATION OF YOUR RETIRED PAY UNDER METHOD (B). WE HAVE FOUND NO COURT DECISION WHICH SUPPORTS YOUR BELIEF.
METHOD (B) OF SECTION 511 AUTHORIZES THE PAYMENT OF "MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY * * * WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY * * * MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.' THE TERM "ACTIVE SERVICE" IS EXPRESSLY DEFINED IN SECTION 511 AS MEANING--
"* * * ALL SERVICE AS A MEMBER OR AS A FORMER MEMBER OF THE UNIFORMED SERVICES * * * WHILE ON THE ACTIVE LIST OR ON ACTIVE DUTY OR WHILE PARTICIPATING IN FULL-TIME TRAINING OR OTHER FULL-TIME DUTY PROVIDED FOR OR AUTHORIZED IN THE NATIONAL DEFENSE ACT, AS AMENDED, THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR IN OTHER PROVISIONS OF LAW * * *.'
"ACTIVE SERVICE," ACCORDING TO SUCH DEFINITION, INCLUDES ONLY PERIODS OF ACTUAL SERVICE AND WE MUST CONCLUDE THAT THE PERIOD OF CONSTRUCTIVE SERVICE CREDITED WHEN YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE PURSUANT TO THE ACT OF JULY 1, 1922, 42 STAT. 799-800, MAY NOT BE CONSIDERED AS CREDITABLE ACTIVE SERVICE IN DETERMINING THE PERCENTAGE MULTIPLE FACTOR UNDER THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511.
IN THE CIRCUMSTANCES, WE DO NOT SEE ANY MERIT TO YOUR CONTENTIONS AND, HENCE, NO FURTHER ACTION ON YOUR CLAIM WILL BE TAKEN BY THIS OFFICE.