B-113939, DEC. 1, 1965

B-113939, DEC. 1, 1965

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 11, 1965, AND MAY 26, 1965, REQUESTING RECONSIDERATION OF THE ACTION TAKEN BY THE CLAIMS DIVISION OF THIS OFFICE IN SETTLEMENT DATED FEBRUARY 4, 1965, DISALLOWING THE CLAIM OF KATHRYN V. WILSON FOR INCREASED RETIRED PAY IN THE CASE OF JAMES C. WILSON, USN, RETIRED, DECEASED, BY REASON OF ADDITIONAL CONSTRUCTIVE SERVICE BELIEVED CREDITABLE UNDER THE HOLDING IN CALLAHAN V. UNITED STATES, CT.CL. NO. 349-62, DECIDED FEBRUARY 14, 1964.

IN BAILEY, ET AL. V. UNITED STATES, CT.CL. NO. 588-52, A JUDGMENT BASED ON A STIPULATION AGREEMENT WAS ENTERED DECEMBER 1, 1953, IN FAVOR OF WILSON (PLAINTIFF NO. 44 IN THAT CASE), ALLOWING HIM INCREASED RETIRED PAY UNDER THE BASIC RULE OF THE SANDERS CASE, 120 CT.CL. 501 (1951), PLUS FIVE PERCENTUM FOR GOOD CONDUCT MARK (BY COMPROMISE) FOR THE PERIOD DECEMBER 4, 1946, THROUGH DECEMBER 31, 1952, INCLUSIVE. WILSON'S CLAIM AS PLAINTIFF NO. 151 IN ABERCROMBIE, ET AL. V. UNITED STATES, CT.CL. NO. 221-56, FOR 10 PERCENTUM INCREASE IN RETIRED PAY BY REASON OF GOOD CONDUCT MARK FOR THE PERIOD JANUARY 1, 1953, TO DATE OF JUDGMENT WAS DISMISSED ON ITS MERITS JULY 12, 1957, 139 CT.CL. 748, THEREBY RAISING THE BAR OF RES JUDICATA AS TO THE PERIOD COVERED BY THAT JUDGMENT. CONSEQUENTLY, ONLY THE PERIOD JULY 13, 1957, TO FEBRUARY 12, 1963 (DATE OF WILSON'S DEATH), IS NOW OPEN FOR CONSIDERATION OF THE CLAIM FOR ADDITIONAL RETIRED PAY BENEFITS UNDER THE CALLAHAN RULE.

A COPY OF AUTHORIZATION FOR TRANSFER TO THE FLEET NAVAL RESERVE IN WILSON'S CASE WAS RECEIVED WITH LETTER OF AUGUST 19, 1965, FROM THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY. THE AUTHORIZATION FORM, N.NAV. 395, SHOWS THE FOLLOWING SERVICE WAS CREDITED UPON WILSON'S TRANSFER:

TABLE

SERVICE FOR TERM ENLISTED

DISCHARGED TRANSFER

YR. MO. DA.

4 2-6-11 12-7-14 4 0 0

4 12-8-14 3-6-16 1 2 28 DOW (*) 12-14-17

4-25-21 3 4 12

4 (**) 4-26-21 4-25-27 6 0 0

4 4-30-27 TO 4-30-29 2 0 1

16 7 11

(*) ENLISTMENT CHANGED TO D.O.W. AND EXTENDED FOR TWO YEARS EFFECTIVE 24 JULY 1919.

(**) ENLISTMENT EXTENDED FOR TWO YEARS.

WILSON SUBSEQUENTLY SERVED ON ACTIVE DUTY FROM JUNE 17, 1941, THROUGH APRIL 21, 1945, A PERIOD OF 3 YEARS, 10 MONTHS AND 5 DAYS WHICH, WHEN ADDED TO THE 16 YEARS, 7 MONTHS AND 11 DAYS (INCLUDING CONSTRUCTIVE SERVICE) CREDITED TO HIM FOR TRANSFER PURPOSES, TOTALS 20 YEARS, 5 MONTHS AND 16 DAYS. ON THAT BASIS HIS CALLAHAN RATE OF RETIRED PAY IS LESS THAN THE AMOUNT OF RETIRED PAY PAID TO HIM BY THE DEPARTMENT OF THE NAVY UNDER METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 829, DURING THE PERIOD JULY 13, 1957, TO FEBRUARY 12, 1963, INCLUSIVE. SEE SETTLEMENT OF FEBRUARY 4, 1965.

AS INDICATED IN YOUR LETTER OF MAY 11, 1965, THE DEPARTMENT OF THE NAVY IN A LETTER DATED MARCH 19, 1953, ADDRESSED TO THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, SUBMITTING A COMPUTATION OF THE AMOUNT DUE WILSON AS PLAINTIFF NO. 44 IN BAILEY, ET AL. V. UNITED STATES, CT.CL. NO. 588-52 (STIPULATED JUDGMENT ENTERED ON DECEMBER 1, 1953), REPORTED THAT WILSON HAD 16 YEARS, 10 MONTHS AND 9 DAYS OF SERVICE, INCLUDING CONSTRUCTIVE SERVICE, FOR TRANSFER TO THE FLEET NAVAL RESERVE. THE TOTAL OF 16 YEARS, 10 MONTHS AND 9 DAYS OBVIOUSLY REFLECTS A FULL TWO-YEAR CREDIT FOR WILSON'S TWO-YEAR EXTENSION OF ENLISTMENT ON JULY 24, 1919. HOWEVER, THE STATEMENT CONTAINED IN THE LETTER OF MARCH 19, 1953, SHOWING 16 YEARS,10 MONTHS AND 9 DAYS OF SERVICE CREDITABLE FOR TRANSFER TO THE FLEET NAVAL RESERVE IS INCONSISTENT WITH THE SERVICE CREDITED TO WILSON ON N.NAV. 395 AT THE TIME OF HIS TRANSFER TO THE FLEET NAVAL RESERVE ON APRIL 30, 1929.

SECTION 2, ACT OF MAY 23, 1930, CH. 311, 46 STAT. 375, PROVIDED:

"ALL TRANSFERS OF ENLISTED MEN OF THE NAVY OR MARINE CORPS TO THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE CREATED BY THE ACTS OF AUGUST 29, 1916, AND FEBRUARY 28, 1925, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE TO THE RETIRED LIST HERETOFORE OR HEREAFTER MADE BY THE NAVY DEPARTMENT SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEN SO TRANSFERRED SHALL FROM DATE OF TRANSFER BE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH THEIR RANKS OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE NAVY DEPARTMENT AT TIME OF TRANSFER.'

THE AMOUNT OF SERVICE CREDITED TO WILSON, 16 YEARS, 7 MONTHS AND 11 DAYS UPON HIS TRANSFER TO THE FLEET NAVAL RESERVE IS CONCLUSIVE FOR ALL PURPOSES. IN THAT CONNECTION THE BUREAU OF NAVAL PERSONNEL, IN LETTER OF AUGUST 19, 1965, ABOVE REFERRED TO, HAS ADVISED THIS OFFICE THAT "NO OFFICIAL CHANGE HAS BEEN MADE IN THE TOTAL SERVICE CREDITABLE FOR TRANSFER SUBSEQUENT TO THE DATES OF THE AUTHORIZATIONS.' IN THE ABSENCE OF SUCH A CHANGE (SEE 10 U.S.C. 6332) THIS OFFICE MAY RECOGNIZE ONLY THAT SERVICE WHICH WAS CREDITED TO WILSON ON N.NAV. 395 FOR THE PURPOSE OF HIS TRANSFER TO THE FLEET NAVAL RESERVE.

ACCORDINGLY, SINCE THE SERVICE SET FORTH IN WILSON'S AUTHORIZATION FOR TRANSFER, TOGETHER WITH THE SUBSEQUENT PERIOD OF ACTIVE DUTY PERFORMED BY HIM, TOTALS LESS THAN 20 YEARS AND 6 MONTHS, THERE IS NO AUTHORITY TO COMPUTE WILSON'S RETIRED PAY UNDER THE CALLAHAN RULE ON THE BASIS OF 21 YEARS OF SERVICE. THE DISALLOWANCE OF THE CLAIM IN THE SETTLEMENT OF FEBRUARY 4, 1965, IS SUSTAINED.