B-134156, JAN. 8, 1958

B-134156, JAN. 8, 1958

TO MR. LUTHER FOUST:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 4, 1957, FROM KING AND KING, YOUR ATTORNEYS, IN REGARD TO YOUR CLAIM FOR INCREASED RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, REPORTED, IN CONNECTION WITH YOUR CASE, THAT:

"1. THE FOLLOWING INFORMATION IS FURNISHED IN CONNECTION WITH SUBJECT MAN'S CLAIM:

TABLE TERM ENLISTED DISCHARGED DEDUCTIONS SERVICE FOR TRANSFER 4 YRS 6- 2 -06

6- 1-10 0-0-1 (AWOL) 3-11-29 4 YRS 5-18-11 5 17-15

4- 0- 0 4 YRS 5-18-15 6-19-20 5- 1- 2 3 YRS 6-30-20 7- 8-22 2- 0- 9

---------- TOTAL NAVAL SERVICE AT TIME OF TRANSFER15- 1-10 ACTIVE DUTY 10 -16-41 TO 5-15-45 3- 7- 0 ACTIVE DUTY AFTER TRANSFER AND PRIOR TO 8 SEPTEMBER 1939: 8-18-23 TO 9-2-23 3-23-29 TO 11-30-29 1-8-30 TO 11-15 30 DATE OF RETIREMENT: 1 JUNE 1937"

YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS ONE HALF OF BASE PAY PLUS PERMANENT ADDITIONS, INCREASED 10 PERCENTUM FOR GOOD CONDUCT (SANDERS V. UNITED STATES, 120 C.CLS. 501), AND SUCH PAY COMPUTED AS ONE- THIRD OF BASE PAY PLUS PERMANENT ADDITIONS, FOR THE PERIOD MAY 16, 1945, TO JUNE 24, 1947, WAS DISALLOWED BY OUR SETTLEMENT OF APRIL 27, 1954, ON THE GROUND THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, OTHER THAN ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, WAS NOT CREDITABLE FOR INCREASED RETAINER OR RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994.

IN THE LETTER OF SEPTEMBER 4, 1957, RECEIVED BY US SEPTEMBER 5, 1957, YOUR ATTORNEYS REQUEST RECONSIDERATION OF YOUR CLAIM AND THAT IT BE AMENDED TO COVER THE PERIOD FROM MAY 16, 1945, TO DATE OF SETTLEMENT.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

AN AMENDMENT TO A CLAIM IS A NEW CLAIM INSOFAR AS THE ABOVE ACT OF OCTOBER 9, 1940, IS CONCERNED. SEE OUR DECISION OF NOVEMBER 24, 1950, B- 62443, AND CASES THEREIN CITED. HENCE, THE PART OF YOUR CLAIM COVERING THAT PORTION OF THE PERIOD JUNE 25, 1947, TO DATE WHICH IS MORE THAN TEN YEARS BEFORE SEPTEMBER 5, 1957, IS BARRED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940.

IN HULSE V. UNITED STATES, 133 C.CLS. 848, THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE SANDERS CASE THAT INCREASES FOR GOOD CONDUCT COULD BE INCLUDED IN THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

IF OTHERWISE CORRECT, YOUR CLAIM WILL BE ALLOWED UNDER THE DOCTRINE OF EBINGER ET AL. (HENRY GRISSING, PLAINTIFF NO. 79) V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, ON THE BASIS OF ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS, BUT WITH NO ALLOWANCES FOR GOOD CONDUCT MARKS, FOR THE PERIODS MAY 16, 1945, TO JUNE 24, 1947, AND SEPTEMBER 5, 1947, THROUGH AUGUST 31, 1957. ADJUSTMENTS IN RETIRED PAY FOR PERIODS AFTER AUGUST 31, 1957, SHOULD BE REQUESTED FROM THE DEPARTMENT OF THE NAVY.