B-148824, AUG. 6, 1962

B-148824, AUG. 6, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1962, AGAIN REQUESTING THAT WE RECONSIDER THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MARCH 28, 1962, IN DETERMINING THAT THE SETTLEMENT MADE TO WILLIAM L. HILDEBRAND ON JANUARY 17, 1962, WAS ERRONEOUS IN THAT IT ALLOWED HIM ADDITIONAL RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO MARCH 31, 1955, AND IN DEMANDING THAT HE REFUND THE SUM OF $84.14 ALLOWED FOR THAT PERIOD.

IN OUR LETTER OF JUNE 7, 1962, WE ADVISED YOU THAT FOR THE PERIOD FROM SEPTEMBER 1, 1954, TO MARCH 31, 1955, MR. HILDEBRAND WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER THE PROVISIONS OF LAW IN EFFECT PRIOR TO OCTOBER 1, 1949, AS PROVIDED IN METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, THAT IS, COMPUTED ON THE SAME BASIS THAT HIS RETAINER PAY WAS COMPUTED PRIOR TO HIS RECALL TO ACTIVE DUTY ON SEPTEMBER 6, 1950--- ONE-HALF OF BASE PAY PLUS 35 PERCENT LONGEVITY FOR OVER 21 YEARS OF ACTIVE SERVICE, PLUS 10 PERCENT OF THE TOTAL OF THOSE TWO SUMS FOR GOOD CONDUCT, BUT BASED ON THE RATE OF PAY APPLICABLE TO HIS COMMISSIONED WARRANT OFFICER GRADE.

WE ALSO ADVISED YOU THAT, IN VIEW OF THE SPECIFIC FORMULA FOR RECOMPUTING RETAINER PAY AND RETIRED PAY CONTAINED IN SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832, 37 U.S.C. 316, WE HAD HELD THAT THAT SECTION SUPERSEDED SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 994, AND THAT, THEREFORE, ACTIVE DUTY PERFORMED AFTER OCTOBER 1, 1949, MAY NOT BE USED TO INCREASE RETAINER PAY OR RETIRED PAY UNLESS SUCH PAY IS COMPUTED AS PROVIDED IN SECTION 516 OF THE 1949 ACT.

IT IS YOUR CONTENTION THAT, SINCE SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 WAS NOT EXPRESSLY REPEALED BY THE CAREER COMPENSATION ACT, MR. HILDEBRAND IS ENTITLED, UNDER METHOD (A) OF SECTION 511 OF THE 1949 ACT, TO RECEIVE RETIRED PAY AS A COMMISSIONED WARRANT OFFICER BASED UPON HIS FULL PERIOD OF ACTIVE SERVICE, INCLUDING THE ACTIVE SERVICE PERFORMED BETWEEN SEPTEMBER 6, 1950, AND MAY 29, 1953. YOU EXPRESS THE OPINION THAT IN THE CONSIDERATION OF MR. HILDEBRAND'S CASE WE HAVE FAILED TO GIVE EFFECT TO THE PROVISIONS OF SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 834, 37 U.S.C. 319, WHICH WAS AS FOLLOWS:

"ANY PROVISION OF LAW WHICH, ON THE DATE OF ENACTMENT OF THIS ACT, ENTITLES ANY PERSON TO BE RETIRED, TO RECEIVE PAY, RETIRED PAY, RETIREMENT PAY, OR RETAINER PAY, OR OTHER MONETARY BENEFIT, AND WHICH IS DIRECTLY REPEALED, IMPLIEDLY REPEALED, OR AMENDED BY THE PROVISIONS OF THIS ACT, SHALL, IF THE ENTITLEMENT OF SUCH PERSON TO SUCH RETIREMENT, PAY, RETIRED PAY, RETIREMENT PAY, RETAINER PAY, OR OTHER MONETARY BENEFIT IS SAVED BY THE PROVISONS OF THIS ACT, BE CONTINUED IN FULL FORCE AND EFFECT FOR SUCH ENTITLEMENT AND FOR SUCH TIME AS SUCH ENTITLEMENT MAY EXIST.'

H.REPT.NO. 970, 84TH CONGRESS, WAS A REPORT FROM THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 7049 (A BILL TO REVISE, CODIFY, AND ENACT INTO LAW, TITLE 10 OF THE U.S. CODE, ENTITLED "ARMED FORCES," AND TITLE 32, U.S. CODE, ENTITLED "NATIONAL GUARD"), WHICH WAS ENACTED AS PUB.L. 1028, CH. 1041, 84TH CONGRESS, APPROVED AUGUST 10, 1956. THE FOLLOWING STATEMENT RELATING TO SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 APPEARS ON PAGE 1092 OF THAT REPORT:

"SUPERSEDED. AUTHORIZED INCREASES IN RETIRED AND RETAINER PAY TO REFLECT ACTIVE DUTY PERFORMED BY MEMBERS OF THE FLEET RESERVE SUBSEQUENT TO THEIR TRANSFER. SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 832 (37 U.S.C. 316), PROVIDES FOR INCREASES OF RETAINER PAY FOR MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, AND FOR INCREASES OF RETIRED PAY FOR RETIRED MEMBERS OF THE REGULAR NAVY AND THE REGULAR MARINE CORPS FOR ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE OR AFTER RETIREMENT.'

IT SEEMS CLEAR THAT THE CONGRESS CONSIDERED THAT SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 WAS SUPERSEDED BY SECTION 516 OF THE CAREER COMPENSATION ACT OF 1949 AND THAT, THEREFORE, IT WAS IMPLIEDLY REPEALED. SEE PAGE 972 OF THE REPORT. COMPARE SIOUX TRIBE OF INDIANS V. UNITED STATES, 316 U.S. 317 (1942) AT PAGE 329; SOCONY MOBIL OIL COMPANY V. UNITED STATES, 287 F.2D 910 (1961); AND HEVENOR V. UNITED STATES, 121 CT.CL. 77 (1951) AT PAGE 88.

IT IS OUR VIEW THAT SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949 CONTAINS NO PROVISION WHICH WOULD AUTHORIZE THE COMPUTATION OF MR. HILDEBRAND'S RETIRED PAY FOR THE PERIOD INVOLVED ON THE BASIS CLAIMED BY YOU. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO OUR DECISION OF NOVEMBER 30, 1949, B-90270, 29 COMP. GEN. 241, WHERE WE HELD THAT ALTHOUGH THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, COINCIDENTLY WITH ITS REPEAL ON OCTOBER 1, 1949, WAS CONTINUED IN EFFECT FOR A LIMITED PERIOD BY SECTION 520 OF THE CAREER COMPENSATION ACT OF 1949 AS TO MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) THEREOF, IT DID NOT SAVE TO SUCH MEMBERS AFTER OCTOBER 1, 1949, A RIGHT TO AN INCREASE IN PAY AND ALLOWANCES OR OTHER MONETARY BENEFITS SUCH AS AN INCREASE IN FAMILY ALLOWANCES BY REASON OF THE ACQUISITION OF ADDITIONAL DEPENDENTS, AS AUTHORIZED BY PRIOR LAW.

UPON RECONSIDERATION, WE FIND NO BASIS FOR CANCELING MR. HILDEBRAND'S INDEBTEDNESS. ACCORDINGLY, REFUND OF THE SUM OF $84.14 SHOULD BE MADE WITHOUT DELAY. IF THAT AMOUNT IS NOT RECEIVED WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, THE MATTER WILL BE FORWARDED TO THE SECRETARY OF THE NAVY FOR ACTION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JULY 15, 1954, 68 STAT. 482.