B-133494, NOV. 14, 1957

B-133494, NOV. 14, 1957

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR LIEUTENANT COLONEL JAMES A. WATSON, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 17, 1954, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASE OF WILLIS A. HEDDEN V. UNITED STATES, C.CLS. NO. 156-55.

OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THE HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU, B-119312, OCTOBER 14, 1957, ON THE CLAIM OF MAJOR PRICE W. BEEBE, U.S. ARMY, RETIRED. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12, 1957, THE PLAINTIFF, HEDDEN, WAS ALLOWED TO INCLUDE, FOR THE PURPOSE OF DETERMINING THE "ACTIVE SERVICE" FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE 1949 LAW, ONLY THAT PORTION OF HIS NATIONAL GUARD SERVICE PRIOR TO JUNE 3, 1916, WHICH REPRESENTED THE THREE TEN-DAY PERIODS OF ACTIVE DUTY TRAINING THAT HE PERFORMED UNDER AUTHORITY OF THE DICK ACT OF 1903. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511.

IN THE INSTANT CASE, THE DEPARTMENT OF THE ARMY HAS REPORTED THAT LIEUTENANT COLONEL WATSON HAS 29 YEARS, 3 MONTHS, AND 25 DAYS' SERVICE (ACTIVE AND INACTIVE) FOR THE PURPOSE OF DETERMINING THE RATE OF HIS MONTHLY BASIC PAY. THE RECORD INDICATES THAT HE HAS 24 YEARS, 4 MONTHS, AND 19 DAYS' ACTIVE SERVICE. UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, LIEUTENANT COLONEL WATSON WOULD HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF A LIEUTENANT COLONEL WITH OVER 26 BUT NOT OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 24 (REPRESENTING HIS "ACTIVE SERVICE" FACTOR).

YOUR LETTER OF JULY 22, 1957, DOES NOT INDICATE THAT LIEUTENANT COLONEL WATSON HAD ANY PERIOD OR PERIODS OF ACTIVE SERVICE IN THE NATIONAL GUARD FOR WHICH HE HAS NOT BEEN GIVEN FULL CREDIT IN DETERMINING THE RATE OF RETIRED PAY WHICH WOULD HAVE ACCRUED TO HIM EFFECTIVE FROM OCTOBER 1, 1949, UNDER METHOD (B), SECTION 511. THE DEPARTMENT OF THE ARMY IN A REPORT DATED MAY 11, 1954, ALSO STATED THAT LIEUTENANT COLONEL WATSON HAD BEEN PAID RETIRED PAY AT $317.19 PER MONTH EFFECTIVE ON THE DATE OF HIS RELEASE TO INACTIVE DUTY, DECEMBER 1, 1943; AT $348.90 PER MONTH EFFECTIVE JULY 1, 1946, AND AT $362.86 PER MONTH EFFECTIVE MAY 1, 1952. THEREFORE APPEARS THAT EFFECTIVE FROM OCTOBER 1, 1949, LIEUTENANT COLONEL WATSON CONTINUED TO RECEIVE RETIRED PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, PLUS THE SUBSEQUENT INCREASES THERETO. SEE SECTION 3, EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, 15 F.R.2375, AND SECTION 402 (H) OF THE 1949 LAW, 63 STAT. 820. IN THE ABSENCE OF A TIMELY ELECTION MADE UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT TO BE PAID UNDER THAT ACT, THERE IS NO AUTHORITY OF LAW FOR PAYING HIM ANY GREATER AMOUNT THAN HE HAS RECEIVED.

ACCORDINGLY, THE DISALLOWANCE OF HIS CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 17, 1954, IS SUSTAINED.