B-134895, MAR. 4, 1958

B-134895, MAR. 4, 1958

TO MR. CLIFFORD L. TUTTLE:

REFERENCE IS MADE TO LETTER OF DECEMBER 11, 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.

ORIGINALLY, BY LETTER DATED DECEMBER 4, 1953, CLAIM WAS PRESENTED HERE ON YOUR BEHALF BY YOUR ATTORNEYS, FOR THE DIFFERENCE BETWEEN RETAINER OR RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF OF BASE PAY, PLUS PERMANENT ADDITIONS THERETO, PLUS A TEN PERCENT ALLOWANCE FOR GOOD CONDUCT, AND RETAINER OR RETIRED PAY ACTUALLY RECEIVED BY YOU COMPUTED ON THE BASIS OF ONE-THIRD OF YOUR BASE PAY PLUS PERMANENT ADDITIONS THERETO FOR THE PERIOD JULY 1, 1935 (1936) (THE DAY FOLLOWING YOUR RELEASE FROM ACTIVE DUTY) THROUGH JUNE 10, 1940; AND MAY 16, 1945, THROUGH NOVEMBER 29, 1947, ALL DATES INCLUSIVE. THE CLAIM WAS MADE PURSUANT TO THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1175, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854G, AND PURSUANT TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF CHRISTOPHER C. SANDERS V. UNITED STATES, 120 C.CLS. 501.

THE CLAIM WAS ALLOWED IN PART ON APRIL 28, 1955, AND SETTLEMENT FOR $777.08, ISSUED IN DUE COURSE FOR ADJUSTMENT OF RETIRED PAY FOR THE PERIOD MAY 16, 1945, TO NOVEMBER 29, 1947. DISALLOWANCE OF THAT PORTION OF YOUR CLAIM COVERING TEN PERCENT INCREASE BASED ON GOOD CONDUCT WAS MADE ON THE BASIS THAT THE LAWS IN EFFECT AUTHORIZED AN INCREASE OF TEN PERCENT ONLY FOR EXTRAORDINARY HEROISM, AND THE RECORDS DID NOT SHOW THAT YOU WERE CREDITED WITH EXTRAORDINARY HEROISM.

YOUR CLAIM FOR THE PERIOD JULY 1, 1935 (1936), TO JUNE 10, 1940, WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 29, 1955, 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 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, 34 U.S.C. 854G.

IN THE LETTER OF DECEMBER 11, 1957, RECEIVED BY US DECEMBER 12, 1957, YOUR ATTORNEYS REQUEST RECONSIDERATION OF THE ABOVE DISALLOWANCE 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 NAVAL RESERVE WAS CREDITABLE UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938 FOR INCREASED RETAINER AND RETIRED PAY. THE LETTER OF DECEMBER 11, 1957, YOUR ATTORNEYS ALSO ASK THAT CONSIDERATION BE GIVEN TO COMPUTING YOUR RETIRED PAY FOR THE PERIOD FROM AUGUST 10, 1946, THROUGH NOVEMBER 29, 1947, 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, 31 U.S.C. 237, 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 AGENCY 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 CLAIM FOR INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE FOR THE PERIOD JULY 1, 1936, TO JUNE 10, 1940, AND FROM MAY 16, 1945, THROUGH AUGUST 9, 1945, SECURED ON 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 FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 10, 1946, TO NOVEMBER 29, 1947, BASED ON THE SANDERS FORMULA AND INCLUDED IN THE APRIL 1955 ALLOWANCE BY THIS OFFICE, ACCRUED DAY TO DAY FROM AUGUST 10, 1946, TO NOVEMBER 29, 1947. ALL YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE SANDERS FORMULA WERE FILED 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 NOVEMBER 29, 1947, WAS NOT FILED WITH US UNTIL DECEMBER 12, 1957. AN AMENDMENT TO A CLAIM IS A NEW CLAIM INSOFAR AS THE ACT OF NOVEMBER 9, 1940, IS CONCERNED. SEE OUR DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED. HENCE, YOUR AMENDED CLAIM UNDER THE HULSE DECISION 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 CLAIM AS OUTLINED BELOW WILL NOT INCLUDE ANY INCREASES FOR GOOD CONDUCT. IF OTHERWISE CORRECT, YOUR CLAIM WILL BE ALLOWED ON THE BASIS OF THE EBINGER CASE, FOR THE PERIOD JULY 1, 1936, THROUGH JUNE 10, 1940, ON THE SANDERS FORMULA (ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS).