B-119312, OCTOBER 14, 1957, 37 COMP. GEN. 234

B-119312, OCTOBER 14, 1957, 37 COMP. GEN. 234

MILITARY PERSONNEL - RETIRED PAY - STATE NATIONAL GUARD SERVICE - HEDDEN V. UNITED STATES UNDER THE DECISION IN HEDDEN V. UNITED STATES, DECIDED JULY 12, 1957 (C.1CLS. NO. 156-55), ONLY ACTIVE DUTY TRAINING PERFORMED AS A MEMBER OF A STATE NATIONAL GUARD UNDER THE DICK ACT OF 1903, 32 STAT. 775, AS DISTINGUISHED FROM PERIODS OF MERE MEMBERSHIP IN A STATE NATIONAL GUARD, MAY BE INCLUDED IN DETERMINING THE NUMBER OF YEARS OF ACTIVE SERVICE IN COMPUTING RETIRED PAY UNDER METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 311.

TO ROBERT F. KLEPINGER, OCTOBER 14, 1957:

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR MAJOR PRICE W. BEEBE, UNITED STATES ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 28, 1955, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY BELIEVED DUE HIM, EFFECTIVE FROM OCTOBER 1, 1949, UNDER AUTHORITY OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 311. YOUR REQUEST IS BASED ON THE DECISION RENDERED JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASE OF WILLIS A. HEDDEN V. UNITED STATES, C.1CLS. NO. 156-55.

THE SOLE ISSUE PRESENTED TO THE COURT IN THE HEDDEN CASE WAS WHETHER THE THREE 10-DAY PERIODS OF "ACTIVE DUTY TRAINING" PERFORMED BY HEDDEN AS AN ENLISTED MEMBER OF THE NATIONAL GUARD OF INDIANA IN THE MONTHS OF JULY 1911, JULY 1912 AND JULY 1913, UNDER AUTHORITY OF THE DICK ACT OF 1903, 32 STAT. 775, AS AMENDED, CONSTITUTED "ACTIVE SERVICE" FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY UNDER METHOD (B) IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED, 37 U.S.C. 311.

SECTION 511 OF THE 1949 LAW, EFFECTIVE OCTOBER 1, 1949, PRESCRIBED TWO METHODS FOR THE COMPUTATION OF THE RETIRED PAY OF THOSE MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL DISABILITY. UNDER METHOD (A), MONTHLY RETIRED PAY IS PRESCRIBED ,IN THE AMOUNT AUTHORIZED * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING THE DATE OF ENACTMENT" OF THAT ACT. METHOD (B), IN SECTION 511, PRESCRIBES "MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING * * * SATISFACTORILY HELD * * * AND WHICH SUCH MEMBER, FORMER MEMBER, OR PERSON WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.' SECTION 511 ALSO EXPRESSLY PROVIDES THAT FOR THE PURPOSE OF COMPUTING RETIRED PAY UNDER METHOD (B) "FRACTIONS OF ONE-HALF YEAR OR MORE OF ACTIVE SERVICE SHALL BE COUNTED AS A WHOLE YEAR" AND THAT IN NO CASE "SHALL SUCH RETIRED PAY * * * EXCEED 75 PERCENTUM OF THE MONTHLY BASIC PAY UPON WHICH THE COMPUTATION IS BASED.' THE THIRD PROVISO IN SECTION 511 EXPRESSLY DEFINES THE TERM "ACTIVE SERVICE" FOR THE PURPOSES OF THAT SECTION. THE BENEFITS OF SECTION 511 WERE ALSO EXTENDED (SEE SECTION 411 OF THE ACT, 63 STAT. 823, 37 U.S.C. 281) TO ANY MEMBER OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY, PROVIDED THAT AN ELECTION WAS MADE BY SUCH MEMBER WITHIN A 5-YEAR PERIOD FROM THE EFFECTIVE DATE OF TITLE IV OF THE 1949 LAW, 37 U.S.C. 271, TO HAVE HIS RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511.

IN COLONEL HEDDEN'S CASE, THE ELECTION WHICH HE MADE UNDER AUTHORITY OF SECTION 411 ENTITLED HIM TO HAVE HIS RETIRED PAY COMPUTED, EFFECTIVE FROM OCTOBER 1, 1949, IN THE MANNER PRESCRIBED IN METHOD (B), SECTION 511. EXCLUDING THE THREE 10-DAY PERIODS OF HIS ACTIVE DUTY TRAINING AS AN ENLISTED MEMBER OF THE INDIANA NATIONAL GUARD, COLONEL HEDDEN WAS BEING CREDITED BY THE DEPARTMENT OF THE ARMY WITH A TOTAL OF 28 YEARS, 5 MONTHS, AND 12 DAYS' ACTIVE SERVICE AND WITH APPROXIMATELY YEARS, 11 MONTHS, AND 9 DAYS' INACTIVE NATIONAL GUARD SERVICE. THUS, COLONEL HEDDEN HAD A TOTAL OF MORE THAN 30 CUMULATIVE YEARS OF SERVICE FOR THE PURPOSE OF DETERMINING, UNDER THE PROVISIONS OF SECTION 511, THE AMOUNT OF MONTHLY BASIC PAY THAT HE WOULD HAVE BEEN ENTITLED TO RECEIVE AS A COLONEL IF THEN SERVING ON ACTIVE DUTY. THEREFORE, UNDER THE FORMULA PRESCRIBED IN METHOD (B), SECTION 511, AND BASED ON A FACTOR OF 28 (REPRESENTING 28 YEARS, 5 MONTHS, AND 12 DAYS' ACTIVE SERVICE) HIS RETIRED PAY WAS COMPUTED, EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 2 1/2 PERCENTUM TIMES THE MONTHLY BASIC PAY OF A COLONEL WITH OVER 30 CUMULATIVE YEARS' SERVICE TIMES 28. THE FACTOR "28" REPRESENTED THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.

THE HOLDING IN THE HEDDEN DECISION OF JULY 12, 1957, THAT THE THREE 10- DAY PERIODS OF ACTIVE DUTY TRAINING WHICH THE PLAINTIFF HAD PERFORMED AS AN ENLISTED MEMBER OF THE NATIONAL GUARD OF INDIANA IN THE YEARS 1911, 1912, AND 1913, CONSTITUTED "ACTIVE SERVICE" FOR THE PURPOSES OF SECTION 511 OF THE 1949 ACT, INCREASED THE TOTAL OF COLONEL HEDDEN'S CREDITABLE ACTIVE SERVICE FROM 28 YEARS, 5 MONTHS, AND 12 DAYS, TO 28 YEARS, 6 MONTHS, AND 12 DAYS. SINCE THIS INCREASE SERVED TO BRING HIM WITHIN THE SCOPE OF THE FIRST PROVISO IN SECTION 511, HE THEREUPON BECAME ENTITLED TO USE A FACTOR OF 29 (REPRESENTING 28 YEARS, 6 MONTHS, AND 12 DAYS OF CREDITABLE ACTIVE SERVICE) AS THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM IN COMPUTING HIS RETIRED PAY UNDER METHOD (B/--- 2 1/2 PERCENTUM TIMES THE MONTHLY BASIC PAY OF A COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 29. IT IS QUITE CLEAR THAT IF THE COURT HAD RULED THAT THE ENTIRE PERIOD OF COLONEL HEDDEN'S MEMBERSHIP IN THE NATIONAL GUARD OF INDIANA CONSTITUTED CREDITABLE "ACTIVE SERVICE" FOR THE PURPOSES OF SECTION 511--- AS YOU SEEM TO CONTEND--- THEN IT WOULD NOT HAVE BEEN NECESSARY FOR THE COURT TO GIVE PARTICULAR CONSIDERATION TO THE THREE 10- DAY PERIODS OF ACTIVE DUTY TRAINING, SINCE IN SUCH A CASE, AND WITHOUT THE NEED TO INCLUDE THOSE THREE 10-DAY PERIODS OF ACTIVE DUTY TRAINING, COLONEL HEDDEN WOULD HAVE BEEN ENTITLED TO USE A FACTOR OF 30 (THE MAXIMUM FACTOR POSSIBLE UNDER THE 75 PERCENTUM RESTRICTION CONTAINED IN THE SECOND PROVISO OF SECTION 511) IN COMPUTING HIS RETIRED PAY UNDER METHOD (B). INASMUCH AS THE DECISION OF JULY 12, 1957, EXPRESSLY HOLDS THAT COLONEL HEDDEN IS ENTITLED TO RECOVER "HIS RETIRED PAY BASED ON 29 YEARS OF SERVICE" IT IS APPARENT THAT ONLY ACTUAL ACTIVE SERVICE, AS DISTINGUISHED FROM PERIODS OF MERE MEMBERSHIP IN THE NATIONAL GUARD, MAY BE USED IN DETERMINING THE FACTOR REPRESENTING THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE FOR THE PURPOSE OF COMPUTING RETIRED PAY IN ACCORDANCE WITH THE FORMULA PRESCRIBED IN METHOD (B), SECTION 511 OF THE 1949 LAW.

IN THE INSTANT CASE, INFORMATION RECEIVED FROM THE DEPARTMENT OF THE ARMY SHOWS THAT MAJOR PRICE W. BEEBE HAS 27 YEARS AND 6 DAYS OF CREDITABLE ACTIVE SERVICE AND 7 YEARS, 23 DAYS OF INACTIVE SERVICE, MAKING A TOTAL OF OVER 30 CUMULATIVE YEARS OF SERVICE WHICH MAY BE COUNTED BY HIM FOR THE PURPOSE OF DETERMINING HIS MONTHLY BASIC PAY UNDER METHOD (B), SECTION 511. THE ABOVE TOTAL OF OVER 30 CUMULATIVE YEARS OF SERVICE WHICH IS BEING CREDITED TO MAJOR BEEBE APPARENTLY INCLUDES ALL THE "ACTIVE" AND "INACTIVE" PERIODS OF SERVICE PERFORMED BY HIM UNDER AUTHORITY OF THE DICK ACT OF 1903 AND PRIOR TO DATE OF ENACTMENT OF THE NATIONAL DEFENSE ACT OF 1916, 10 U.S.C. 602. UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND THE FORMULA PRESCRIBED IN METHOD (B), SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, MAJOR BEEBE'S RETIRED PAY IS REQUIRED TO BE COMPUTED AT THE RATE OF 2 1/2 PERCENTUM TIMES THE MONTHLY BASIC PAY OF A MAJOR WITH OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 27 (REPRESENTING 27 YEARS AND 6 DAYS OF CREDITABLE ACTIVE SERVICE). IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT MAJOR BEEBE HAD ANY PERIOD OF ACTIVE SERVICE IN THE NATIONAL GUARD FOR WHICH HE HAS NOT BEEN GIVEN FULL CREDIT IN DETERMINING THE AMOUNT OF RETIRED PAY TO WHICH HE WOULD BE ENTITLED UNDER METHOD (B), SECTION 511 OF THE 1949 LAW. ALSO, IT FURTHER APPEARS THAT THE AMOUNT OF RETIRED PAY THAT WOULD BE DUE HIM IF COMPUTED UNDER METHOD (B) OF SECTION 511 IS LESS THAN THE AMOUNT HE IS ENTITLED TO RECEIVE AND WHICH HE HAS BEEN RECEIVING EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AND AT THE RATE AUTHORIZED IN PERTINENT LAWS WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, PLUS ALL SUBSEQUENT INCREASES THERETO.

ACCORDINGLY, THE DISALLOWANCE OF MAJOR BEEBE'S CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 28, 1955, IS FOUND TO BE CORRECT AND IS SUSTAINED.