B-134489, JAN. 22, 1958

B-134489, JAN. 22, 1958

TO MR. HOMER PONDER HOWELL:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 5, 1957, FROM KING AND KING, YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

FROM INFORMATION FURNISHED TO US BY THE DEPARTMENT OF THE NAVY IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON DECEMBER 31, 1925, WITH SERVICE OF 16 YEARS, 1 MONTH, AND 23 DAYS; THAT YOU PERFORMED ACTIVE DUTY FROM APRIL 19, 1926, TO JUNE 30, 1932, A PERIOD OF 6 YEARS, 2 MONTHS, AND 12 DAYS; THAT YOU WERE PLACED ON THE RETIRED LIST DECEMBER 31, 1939; AND THAT YOU PERFORMED ACTIVE DUTY FROM AUGUST 18, 1941, TO JULY 5, 1945, A PERIOD OF 3 YEARS, 10 MONTHS, AND 18 DAYS.

YOU PRESENTED A CLAIM TO US FOR THE DIFFERENCE BETWEEN RETAINER AND RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS (SANDERS V. UNITED STATES, 120 C.CLS. 501) AND SUCH PAY COMPUTED AS ONE- THIRD OF BASE PAY PLUS PERMANENT ADDITIONS FOR THE PERIODS JULY 1, 1932, TO AUGUST 17, 1941, AND JULY 6, 1945, TO SEPTEMBER 30, 1949.

OUR SETTLEMENT OF APRIL 13, 1954, ALLOWED YOUR CLAIM FOR THE PERIOD JULY 6, 1945, TO SEPTEMBER 30, 1949, AND DISALLOWED YOUR CLAIM FOR THE PERIOD JULY 1, 1932, TO AUGUST 17, 1941, THE BASIS OF THE DISALLOWANCE BEING THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, BUT NOT IN A TIME OF NATIONAL EMERGENCY, IS NOT CREDITABLE 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 NOVEMBER 5, 1957, RECEIVED BY US NOVEMBER 7, 1957, YOUR ATTORNEYS REQUEST REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR THE PERIOD JULY 1, 1932, TO AUGUST 17, 1941. ALSO, THEY REQUEST THAT CONSIDERATION BE GIVEN TO COMPUTING YOUR PAY FOR THE PERIOD AUGUST 10, 1946, TO SEPTEMBER 30, 1949, ON THE BASIS OF THE DECISION IN HULSE V. UNITED STATES, 133 C.CLS. 848, THAT IS, AT THE RATE OF TWO AND ONE HALF PERCENTUM FOR EACH YEAR OF ACTIVE DUTY.

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 AUTHORITIES THERE CITED. HENCE, THE PART OF YOUR CLAIM COVERING THAT PORTION OF THE PERIOD AUGUST 10, 1946, TO SEPTEMBER 30, 1949, WHICH IS MORE THAN TEN YEARS BEFORE NOVEMBER 7, 1957, (AUGUST 10, 1946, TO NOVEMBER 6, 1947), IS BARRED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940.

IF OTHERWISE CORRECT, YOUR CLAIM WILL BE ALLOWED UNDER THE DOCTRINE OF EBINGER ET AL. (HENRY ORISSING, PLAINTIFF NO. 79) V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, ON THE SANDERS FORMULA (ONE HALF OF BASE PAY PLUS PERMANENT ADDITIONS) FOR THE PERIOD JULY 1, 1932, TO AUGUST 17, 1941, AND ON THE HULSE FORMULA (TWO AND ONE-HALF PERCENTUM FOR EACH YEAR OF ACTIVE DUTY) FOR THE PERIOD NOVEMBER 7, 1947, TO SEPTEMBER 30, 1949.