B-119880, JUL 26, 1954

B-119880, JUL 26, 1954

PRECIS-UNAVAILABLE

JOHN D. MURPHY, REAR ADMIRAL, U.S. NAVY, RETIRED:

REFERENCE IS MADE TO YOUR CLAIMS NOW PENDING BEFORE THIS OFFICE FOR (1) DIFFERENCE IN ACTIVE DUTY PAY BETWEEN THAT OF A REAR ADMIRAL (LOWER HALF) AND THAT RECEIVED BY YOU AS A CAPTAIN WITH OVER 27 YEARS' BUT LESS THAN 30 YEARS' CREDITABLE SERVICE FOR THE PERIOD FROM JANUARY 1, 1947, TO AUGUST 6, 1947, INCLUSIVE, AND (2) ADDITIONAL RETIRED PAY FROM DECEMBER 21, 1949, THE EFFECTIVE DATE OF YOUR RELEASE TO INACTIVE DUTY STATUS, TO OCTOBER 31, 1953, INCLUSIVE, UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, COMPUTED ON THE BASIS OF THE PAY OF A REAR ADMIRAL WITH OVER 30 YEARS' CREDITABLE ACTIVE SERVICE, LESS THE AMOUNT OF RETIRED PAY WHICH HAS BEEN PAID YOU AS A CAPTAIN FOR THE PERIOD STATED.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE NAVY EFFECTIVE JANUARY 1, 1947, WITH THE RANK OF CAPTAIN, PURSUANT TO THE PROVISIONS OF TITLE 34, U.S. CODE, SECTIONS 410B AND 410C, AND THAT, HAVING BEEN SPECIALLY COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, YOU WERE THEREUPON ADVANCED ON THE RETIRED LIST UNDER THE PROVISIONS OF TITLE 34, U.S. CODE, SECTION 404(1), TO THE RANK OF REAR ADMIRAL. THE RECORD ALSO SHOWS THAT YOU WERE RETAINED ON ACTIVE DUTY AND THAT YOU SERVED AS A REAR ADMIRAL (LOWER HALF) FROM JANUARY 1, 1947, TO AUGUST 9, 1949, AND AS A CAPTAIN FROM AUGUST 10, 1949, TO DECEMBER 20, 1949, INCLUSIVE. YOUR NAVY PAY RECORDS COVERING THE ABOVE PERIODS DISCLOSE THAT YOU WERE PAID ACTIVE DUTY PAY AS A CAPTAIN WITH OVER 27 YEARS' SERVICE FOR THE PERIOD FROM JANUARY 1, 1947, TO AUGUST 6, 1947, INCLUSIVE; AS A REAR ADMIRAL (LOWER HALF) FOR THE PERIOD AUGUST 7, 1947, TO AUGUST 9, 1949; AND AS A CAPTAIN WITH OVER 30 YEARS' SERVICE FOR THE PERIOD AUGUST 10, 1949, TO DECEMBER 20, 1949, INCLUSIVE. YOU WERE RELEASED TO INACTIVE DUTY STATUS ON THE RETIRED LIST EFFECTIVE DECEMBER 21, 1949, AND IT IS REPORTED BY THE DEPARTMENT OF THE NAVY THAT YOU HAVE BEEN IN RECEIPT OF RETIRED PAY SINCE THAT DATE IN ACCORDANCE WITH METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, COMPUTED ON THE BASIS OF THE PAY OF A CAPTAIN WITH OVER 30 YEARS' CREDITABLE ACTIVE SERVICE.

WITH RESPECT TO THE FIRST CLAIM THE RECORD SHOWS, AS ABOVE INDICATED, THAT DURING THE PERIOD FROM JANUARY 1, 1947, TO AUGUST 6, 1947, YOU SERVED ON ACTIVE DUTY AS A REAR ADMIRAL (LOWER HALF). SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, IN EFFECT DURING THAT PERIOD, PROVIDED THAT "RETIRED OFFICERS OF THE ARMY, NAVY *** SHALL, WHEN ON ACTIVE DUTY, RECEIVE FULL PAY AND ALLOWANCES OF THE GRADE OR RANK IN WHICH THEY SERVE ON SUCH ACTIVE DUTY ***." ACCORDINGLY, YOU ARE ENTITLED TO RECEIVE THE FULL PAY AND ALLOWANCES OF A REAR ADMIRAL (LOWER HALF) FOR THE PERIOD FROM JANUARY 1, 1947, TO AUGUST 6, 1947, INCLUSIVE.

CONCERNING YOUR SECOND CLAIM THE RECORD SHOWS THAT YOU SERVED ON ACTIVE DUTY FROM JANUARY 1, 1947, TO AUGUST 9, 1949, IN THE RANK OF REAR ADMIRAL (LOWER HALF) I.E., THE RANK TO WHICH YOU WERE ADVANCED ON THE RETIRED LIST OF THE NAVY EFFECTIVE JANUARY 1, 1947, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 404(1). THUS, YOUR STATUS APPEARS TO FALL WITHIN THE SCOPE OF THE DECISIONS OF THE COURT OF CLAIMS IN ALGER V. UNITED STATES, 126 C. CLS. 561, DECIDED NOVEMBER 3, 1953, AND MILLER V. UNITED STATES, 123 C. CLS. 351, DECIDED JUNE 3, 1952, AND CONSEQUENTLY YOU MAY BE ENTITLED TO RECEIVE RETIRED PAY BASED ON THE RANK OF REAR ADMIRAL (LOWER HALF). IN THAT CONNECTION, HOWEVER, METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, CITED ABOVE, PROVIDES THAT AN INDIVIDUAL WHO IS ENTITLED TO COMPUTE HIS RETIRED PAY THEREUNDER SHALL RECEIVE MONTHLY RETIRED PAY EQUAL TO 2 1/2 PER CENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD BY SUCH PERSON, AS DETERMINED BY THE SECRETARY CONCERNED, AND WHICH SUCH 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.

THIS OFFICE HAS BEEN ADVISED INFORMALLY BY THE DEPARTMENT OF THE NAVY THAT A DETERMINATION HAS NOT BEEN MADE IN YOUR CASE BY THE SECRETARY OF THE NAVY UNDER THE PROVISIONS OF METHOD (B) OF SECTION 511, THAT YOU SATISFACTORILY HELD THE RANK OF REAR ADMIRAL (LOWER HALF) AND HENCE NO FURTHER ACTION MAY BE TAKEN BY THIS OFFICE ON YOUR CLAIM. HOWEVER, YOU ARE ADVISED THAT THE CLAIMS DIVISION OF THIS OFFICE IS BEING INSTRUCTED THIS DATE TO ASCERTAIN FROM THE DEPARTMENT OF THE NAVY WHETHER SUCH A DETERMINATION WILL BE MADE IN YOUR CASE, WITH FURTHER INSTRUCTIONS TO TAKE APPROPRIATE ACTION IN THE MATTER IN ACCORDANCE WITH SUCH INFORMATION.

IN CONNECTION WITH THE FOREGOING IT IS NOTED, HOWEVER, THAT THERE WAS CERTIFIED TO BE DUE YOU IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 2197445, DATED NOVEMBER 18, 1953, THE AMOUNT OF $114.24, STATED AS REPRESENTING MILEAGE FOR TRAVEL PERFORMED AT YOUR EXPENSE BETWEEN DECEMBER 20, 1949, AND AUGUST 1, 1950, INCIDENT TO YOUR RETIREMENT PURSUANT TO ORDERS DATED NOVEMBER 10, 1949. THE CLAIMS DIVISION ACTION IN ALLOWING YOUR CLAIM FOR SUCH MILEAGE WAS BASED ON YOUR NOTATION ON THE SIXTH INDORSEMENT DATED DECEMBER 20, 1949, ON YOUR ORDERS DATED NOVEMBER 10, 1949, RELEASING YOU FROM ACTIVE DUTY, TO THE EFFECT THAT YOU ELECTED "PERTH KANSAS, WHICH HAS ALWAYS BEEN MY HOME, AS MY HOME," AND THE FURTHER FACT THAT THE RECORD OTHERWISE INDICATED THAT YOU TRAVELED TO PERTH, KANSAS, ON OR ABOUT AUGUST 1, 1950. HOWEVER, PARAGRAPH 9 OF THE SAID SIXTH INDORSEMENT OF DECEMBER 20, 1949, DISCLOSES THAT YOU STATED THAT UPON YOUR RELEASE FROM ACTIVE DUTY IN WASHINGTON, D.C., YOUR MAILING ADDRESS WOULD BE "4421 WINDOM PLACE N.W., WASHINGTON, D.C." AND THE DEPARTMENT OF THE NAVY HAS ADVISED THIS OFFICE INFORMALLY THAT IN THE MONTH OF NOVEMBER 1950 YOU REPORTED YOUR HOME ADDRESS AS 1700 DECATUR STREET, N.W., WASHINGTON, D.C., WHICH LATTER ADDRESS APPEARS TO BE YOUR PRESENT PLACE OF RESIDENCE.

PARAGRAPH 9001-1B(2), UNITED STATES NAVY TRAVEL INSTRUCTIONS, 1946 (THE APPLICABLE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED) PROVIDED THAT "A RETIRED OFFICER OF THE REGULAR SERVICE WHO HAS NOT BEEN ON INACTIVE DUTY AS A RETIRED OFFICER - THAT IS, WHO WAS PLACED ON THE RETIRED LIST AND SIMULTANEOUSLY CONTINUED ON ACTIVE DUTY WITHOUT ANY BREAK IN ACTIVE SERVICE - OR WHO IS ORDERED HOME TO BE RETIRED, IS ENTITLED TO MILEAGE UPON RELEASE FROM ACTIVE DUTY TO ANY POINT IN THE UNITED STATES OR ITS POSSESSIONS WHICH HE SELECTS AS HIS HOME, AND TO WHICH HE HAS INTENTION OF GOING WHEN RETIRED, AND TO WHICH HE DOES ACTUALLY GO."

UNDER THESE REGULATIONS, THE PAYMENT OF MILEAGE TO A RETIRED OFFICER OF THE REGULAR NAVY UPON ORIGINAL RELEASE FROM ACTIVE DUTY SUBSEQUENT TO THE DATE OF HIS RETIREMENT IS AUTHORIZED TO THE PLACE SELECTED AS HIS HOME INCIDENT TO SUCH RETIREMENT AND TO WHICH HE DOES ACTUALLY GO UPON RELEASE FROM ACTIVE DUTY. THE HOME THAT IS CONTEMPLATED BY RELEASE FROM ACTIVE DUTY ORDERS IN SUCH A CASE IS THE PLACE TO WHICH THE OFFICER ACTUALLY TRAVELS WITH THE INTENT TO LIVE IN CIVIL LIFE AND FOR THE PURPOSE OF THERE ESTABLISHING HIS PERMANENT RESIDENCE. THE RECORD DOES NOT SUPPORT A CONCLUSION THAT YOU TRAVELED TO PERTH, KANSAS, FOLLOWING YOUR RELEASE FROM ACTIVE DUTY ON DECEMBER 20, 1949, WITH THE INTENTION OF MAKING THAT PLACE YOUR PERMANENT RESIDENCE. ON THE PRESENT RECORD, THE SETTLEMENT OF NOVEMBER 18, 1953, ALLOWING YOU MILEAGE TO PERTH, KANSAS, WAS ERRONEOUS AND IS REVERSED AND THE AMOUNT OF $114.24 ALLOWED YOU AS MILEAGE WILL BE DEDUCTED BY THE CLAIMS DIVISION OF THIS OFFICE FROM AMOUNTS DUE YOU ON YOUR PRESENT CLAIMS.