B-103633, OCT. 2, 1962

B-103633, OCT. 2, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1962, REQUESTING RECONSIDERATION OF THE CLAIM OF THE LATE MR. SIMPLICIO GOMEZ, U.S. NAVY, RETIRED (CLAIM NO. Z-1979390), FOR ADDITIONAL RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE RULE OF THE SELIGA DECISION, 137 CT.CL. 710 (1957). THE CLAIM WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 13, 1960, ON THE GROUNDS OF RES JUDICATA. A POWER OF ATTORNEY EXECUTED IN YOUR FAVOR BY MRS. GOMEZ WAS RECEIVED WITH YOUR LETTER ADVISING THAT MR. GOMEZ DIED ON JANUARY 29, 1961.

IT APPEARS THAT THE DEPARTMENT OF JUSTICE IS HOLDING IN ESCROW THE DECEASED PLAINTIFF'S MOTION (FILED IN 1959) TO DISMISS HIS SUIT AS PLAINTIFF NO. 7 IN THE CASE OF BRANDENSTEIN, ET AL. V. UNITED STATES, CT.CL. NO. 98-59. IN THAT CASE, INCREASED RETIRED PAY UNDER THE SELIGA RULE IS CLAIMED EFFECTIVE FROM FEBRUARY 1, 1953.

IN A SEPARATE LETTER, ALSO DATED JULY 6, 1962, YOU FORWARDED HERE A COPY OF THE ORDER GRANTED JUNE 29, 1962, BY THE COURT OF CLAIMS, AMENDING THE JUDGMENT ENTERED ON DECEMBER 1, 1953, IN FAVOR OF SIMPLICO GOMEZ AS PLAINTIFF NO. 37 IN THE CASE OF AMICONE, ET AL. V. UNITED STATES, CT.CL. NO. 50150. THE EFFECT OF THE ORDER OF JUNE 29, 1962, IS TO REMOVE THE BAR OF RES JUDICATA RAISED BY THE JUDGMENT OF DECEMBER 1, 1953, EXCEPT AS TO THE PERIOD COVERED BY THE STIPULATION AGREEMENT.

THE NAVY FINANCE CENTER, CLEVELAND, OHIO, IN LETTER OF DECEMBER 10, 1959, ADVISED OUR CLAIMS DIVISION THAT MR. GOMEZ WAS PLACED ON THE RETIRED LIST EFFECTIVE FEBRUARY 1, 1947, BY REASON OF A PHYSICAL DISABILITY. THE NAVY FINANCE CENTER FURTHER STATED IN THE SAME LETTER OF DECEMBER 10, 1959, THAT THEY HAVE NO RECORD SHOWING WHETHER THE DISABILITY IN QUESTION WAS OR WAS NOT EVALUATED BY THE SECRETARY OF THE NAVY OR WHETHER MR. GOMEZ MADE AN ELECTION OF OPTIONS UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 62 STAT. 823.

ALSO, THE NAVY FINANCE CENTER REPORTED THAT MR. GOMEZ WAS PAID RETIRED PAY AT THE RATE OF $120.49 PER MONTH FOR THE PERIOD JANUARY 13, 1947, TO SEPTEMBER 30, 1949, INCLUSIVE (COMPUTED IN ACCORDANCE WITH THE STIPULATED JUDGMENT ENTERED IN HIS FAVOR ON DECEMBER 1, 1953, AS PLAINTIFF NO. 37 IN THE AMICONE CASE); AT THE RATE OF $143.69 PER MONTH FROM OCTOBER 1949 TO APRIL 1952, INCLUSIVE; AT THE RATE OF $149.44 PER MONTH FROM APRIL 1955 TO MAY 1958, INCLUSIVE, AND AT THE RATE OF $175.91 PER MONTH EFFECTIVE FROM JUNE 1, 1958. SINCE THE MONTHLY RATE OF RETIRED PAY PAID TO MR. GOMEZ COMMENCING OCTOBER 1, 1949, WAS GREATER THAN THAT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, IT IS EVIDENT THAT HIS RETIRED PAY WAS COMPUTED EFFECTIVE AS OF OCTOBER 1, 1949, EITHER UNDER CLAUSE (1) OF SECTION 402 (D) OF THE 1949 LAW, 63 STAT. 818 (OPTION A OF SECTION 411) OR PURSUANT TO METHOD (B) PRESCRIBED IN SECTION 511 OF THE ACT, 63 STAT. 829 (OPTION B OF SECTION B OF SECTION 411) AS FOLLOWS: 2 1/2 PERCENT TIMES 23 YEARS' ACTIVE SERVICE OR 57 1/2 PERCENT OF $249.90, THE MONTHLY BASIC ACTIVE DUTY PAY OF AN ENLISTED MAN IN PAY GRADE E-6 WITH OVER 22 YEARS OF CREDITABLE SERVICE.

UNDER THE PROVISIONS OF SECTION 201 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, THE MAXIMUM MONTHLY RATE OF ACTIVE DUTY PAY OF AN ENLISTED PERSON IN PAY GRADE E-6 WAS REACHED WHEN THE INDIVIDUAL CONCERNED ACCUMULATED "OVER 22" YEARS OF CREDITABLE SERVICE. SEE SECTION 1 (A) OF THE ACT APPROVED MAY 19, 1962, CH. 310, 66 STAT. 79; SECTION 2 (1) OF THE ACT APPROVED MARCH 31, 1955, CH. 20, 69 STAT. 19; AND THE CHANGE MAKING THE RATE PAYABLE TO MEMBERS IN GRADE E-6 WITH "OVER 18" YEARS OF CREDITABLE SERVICE THE MAXIMUM RATE OF PAY PRESCRIBED FOR MEMBERS IN THAT PAY GRADE IN SECTION 1 (1) OF THE ACT OF MAY 20, 1958, PUB.L. 85-422, 72 STAT. 123. CONSEQUENTLY, THE SELIGA RULE DOES NOT BENEFIT MR. GOMEZ IN THE COMPUTATION OF HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, BASED ON THE YEARS OF SERVICE FACTOR PRESCRIBED IN CLAUSE (1) OF SECTION 402 (D) OF THE 1949 LAW.

ALTHOUGH THE NAVY FINANCE CENTER HAS STATED THERE IS NO RECORD THAT MR. GOMEZ MADE AN ELECTION OF OPTIONS UNDER SECTION 411 OF THE 1949 LAW, IT IS EVIDENT THAT HIS RETIRED PAY WAS COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, AS THOUGH SUCH AN ELECTION HAD BEEN MADE, OTHERWISE HE WOULD NOT HAVE BEEN PAID RETIRED PAY IN AN AMOUNT GREATER THAN THAT TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949. IT REASONABLY MAY BE ASSUMED THAT THE COMPUTATION OF THE SUBJECT MAN'S RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, ON THE BASIS ABOVE SET FORTH REFLECTED THE GREATER AMOUNT OF RETIRED PAY FOUND DUE HIM UNDER THE SEVERAL METHODS PRESCRIBED IN OPTIONS (A) AND (B) OF SECTION 411. THUS, IT WOULD FURTHER APPEAR THAT THE COMPUTATION OF HIS RETIRED PAY BASED ON THE NUMBER OF YEARS OF CREDITABLE SERVICE EXCEEDED THE AMOUNT OF RETIRED PAY OTHERWISE THEN FOUND DUE HIM COMPUTED UNDER CLAUSE (2) OF SECTION 402 (D) BASED ON THE PERCENTAGE OF HIS DISABILITY.

ACCORDINGLY, THE RECORD INDICATES THAT NO ADDITIONAL AMOUNT OF RETIRED PAY IS DUE MR. GOMEZ UNDER THE RULE OF THE SELIGA CASE AND NO PAYMENT MAY BE MADE ON HIS CLAIM.