B-134490, JAN. 22, 1958

B-134490, JAN. 22, 1958

TO MR. CLINTON FOUTY GOREE:

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

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

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

CHART TERM ENLISTED DISCHARGED DEDUCTIONS SERVICE FOR TRANSFER 4 YRS 12-5 -12 12-4-16 4-0-0 4 YRS12-5-16 EXT. 1 YR 12-5-20 EXT. 3 YRS 12-5-21 12-4- 24 8-0-0 4 YRS 12-5-24 EXT. 1 YR12-5-28

2-15-29 4-2-11

------- TOTAL NAVAL SERVICE AT TIME OF TRANSFER 16-2-11 ACTIVE DUTY 2-3- 43 TO 12-1-45 2-9-29 ACTIVE DUTY AFTER TRANSFER AND PRIOR TO 8 SEPTEMBER 1939: 10- 1-29 TO7-31-37 7-15-38 TO 12-15-38 DATE OF RETIREMENT: 1 JANUARY 1943

2. HIGHEST RANK SATISFACTORILY HELD: CHIEF SHIP'S CLERK

3. AVERAGE MARK IN CONDUCT FOR ALL SERVICE IS OVER 95 PERCENT.'

ON JANUARY 17, 1955, WE RECEIVED YOUR CLAIMS FOR THE DIFFERENCE BETWEEN RETAINER AND RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS, INCREASED TEN 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 PERIODS AUGUST 1, 1937, TO JULY 14, 1938, DECEMBER 16, 1938, TO FEBRUARY 2, 1943, AND DECEMBER 2, 1945, TO NOVEMBER 30, 1948. BY LETTER OF YOUR ATTORNEYS DATED MAY 13, 1955, RECEIVED BY US MAY 16, 1955, THE LATTER CLAIM WAS MODIFIED SO AS TO COVER THE PERIOD DECEMBER 2, 1945, TO DECEMBER 31, 1948.

YOUR CLAIMS WERE DISALLOWED BY OUR SETTLEMENT OF OCTOBER 24, 1955, ON THE GROUND THAT ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, BUT NOT DURING A TIME OF NATIONAL EMERGENCY, WAS 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, PROVIDING INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.

IN THE LETTER OF NOVEMBER 5, 1957, RECEIVED BY US NOVEMBER 7, 1957, YOUR ATTORNEYS REQUEST RECONSIDERATION OF THE ABOVE SETTLEMENT ON THE BASIS OF EBINGER ET AL. V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, WHEREIN IT WAS HELD THAT, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, ALL ACTIVE DUTY PERFORMED AFTER JULY 1, 1925, AND AFTER TRANSFER TO THE FLEET RESERVE WAS CREDITABLE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 FOR INCREASED RETAINER AND RETIRED PAY. IN THE LETTER OF NOVEMBER 5, 1957, YOUR ATTORNEYS ALSO ASK THAT CONSIDERATION BE GIVEN TO COMPUTING YOUR RETIRED PAY FOR THE PERIOD AUGUST 10, 1946, TO DECEMBER 31, 1948, ON THE BASIS OF TWO AND ONE HALF PERCENTUM FOR EACH YEAR OF ACTIVE SERVICE (HULSE V. UNITED STATES, 133 C.CLS. 848, DECIDED JANUARY 21, 1956).

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.'

YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE FOR THE PERIODS AUGUST 1, 1937, TO JULY 14, 1938, DECEMBER 16, 1938, TO FEBRUARY 2,1943, AND DECEMBER 2, 1945, TO AUGUST 9, 1946, ACCRUED ON AUGUST 10, 1946, THE DATE OF APPROVAL OF THE STATUTE GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 10, 1946, TO DECEMBER 31, 1948, ACCRUED DAY TO DAY FROM AUGUST 10, 1946, TO DECEMBER 31, 1948. ALL YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE SANDERS FORMULA WERE FILED WITH US WITHIN TEN YEARS AFTER AUGUST 10, 1946, AND THUS ARE NOT AFFECTED BY THE TEN-YEAR STATUTE OF LIMITATIONS, QUOTED ABOVE. HOWEVER, YOUR AMENDED CLAIM FOR INCREASED RETIRED PAY ON THE HULSE FORMULA FOR THE PERIOD AUGUST 10, 1946, TO DECEMBER 31, 1948, WAS NOT FILED WITH US UNTIL NOVEMBER 7, 1957. AN AMENDMENT TO A CLAIM IS A NEW CLAIM INSOFAR AS THE ACT OF OCTOBER 9, 1940, IS CONCERNED. SEE OUR DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED. HENCE, THE PORTION OF YOUR AMENDED CLAIM UNDER THE HULSE DECISION COVERING THE PERIOD PRIOR TO NOVEMBER 7, 1947, IS BARRED FROM CONSIDERATION BY THAT ACT.

IN THE HULSE CASE THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE SANDERS CASE THAT INCREASES FOR GOOD CONDUCT MARKS COULD BE INCLUDED IN THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. ACCORDINGLY, THE ALLOWANCE OF YOUR CLAIMS AS OUTLINED BELOW WILL NOT INCLUDE ANY INCREASES FOR GOOD CONDUCT. IF OTHERWISE CORRECT, YOUR CLAIMS WILL BE ALLOWED ON THE BASIS OF THE EBINGER CASE, AS FOLLOWS: FOR THE PERIODS FROM AUGUST 1, 1937, TO JULY 14, 1938, FROM DECEMBER 16, 1938, TO FEBRUARY 2, 1943, AND FROM DECEMBER 2, 1945, TO NOVEMBER 6, 1947, ON THE SANDERS FORMULA(ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS) AND FOR THE PERIOD FROM NOVEMBER 7, 1947, TO DECEMBER 31, 1948, ON THE HULSE FORMULA (TWO AND ONE-HALF PERCENTUM FOR EACH YEAR OF ACTIVE SERVICE).