B-138844, APR. 17, 1961

B-138844, APR. 17, 1961

TO MOORE, SCOTT AND BROWN, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 11, 1960, WITH ENCLOSURES, RELATIVE TO THE CLAIM OF CAPTAIN EDWARD C. PALMER, USNR, RETIRED, FOR RETIRED PAY FOR THE PERIOD FROM MARCH 1, 1954, TO DATE OF SETTLEMENT.

IN ACCORDANCE WITH THE DECISIONS OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF JALBERT V. UNITED STATES, CT.CL.NO. 297-58, JULY 14, 1959, AND NOVEMBER 4, 1959, BY SETTLEMENT DATED AUGUST 16, 1960, OUR CLAIMS DIVISION ALLOWED TO CAPTAIN PALMER THE SUM OF $7,619.11, REPRESENTING RETROACTIVE RETIRED PAY FOR THE PERIOD APRIL 1, 1954, THROUGH MARCH 31, 1958, AND ADJUSTMENT OF RETIRED PAY FOR THE PERIOD APRIL 1, 1958, THROUGH JUNE 30, 1960, LESS ACTIVE DUTY PAY FOR THE PERIODS WHILE IN A DRILL STATUS OR IN A TRAINING DUTY STATUS. IN SAID SETTLEMENT IT WAS STATED THAT CAPTAIN PALMER'S RETIRED PAY WAS COMPUTED ON A BASIS OF 31.025 PERCENT (TWO AND ONE-HALF TIMES 12.41 YEARS OF ACTIVE SERVICE) OF THE BASIC PAY OF A CAPTAIN WITH OVER 18 YEARS AND LESS THAN 22 YEARS OF SERVICE FOR BASIC PAY PURPOSES, TOTAL SERVICE AT DATE OF QUALIFICATION FOR RETIRED PAY ON HIS 60TH BIRTHDAY. IT IS FURTHER STATED IN THE SETTLEMENT THAT RETIRED PAY WAS NOT COMPUTED AT AN INCREASED RATE OF THE PERIOD FROM APRIL 1, 1958, PURSUANT TO 10 U.S.C. 676, BECAUSE THERE WAS NO SHOWING THAT CAPTAIN PALMER WAS ORDERED BY THE SECRETARY OF THE NAVY RETAINED ON ACTIVE DUTY, OR IN THE SERVICE IN A RESERVE COMPONENT AFTER ELIGIBILITY FOR RETIREMENT.

IT APPEARS THAT CAPTAIN PALMER WAS BORN ON MARCH 1, 1894; THAT HE WAS A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY FROM MAY 13, 1910, THROUGH JUNE 4, 1914; THAT HE HELD A COMMISSION IN THE NAVAL RESERVE FORCE FROM FEBRUARY 6, 1917, TO JANUARY 24, 1921, SERVING ON ACTIVITY DUTY FROM APRIL 11, 1917, TO MARCH 22, 1919; THAT HE WAS AGAIN COMMISSIONED IN THE NAVAL RESERVE ON MARCH 10, 1942, AS LIEUTENANT COMMANDER; THAT HE SERVED ON ACTIVE DUTY ON MARCH 10, 1942, AND FROM MARCH 12, 1942, THROUGH JUNE 7, 1946, ATTAINING THE RANK OF CAPTAIN; THAT HE SERVED ON ACTIVE DUTY FROM APRIL 3, 1948, THROUGH AUGUST 13, 1948; THAT HE RETAINED HIS COMMISSION IN THE NAVAL RESERVE PERFORMING DRILLS AND TRAINING DUTY THROUGH FEBRUARY 16, 1958; THAT HE BECAME 60 YEARS OF AGE ON MARCH 1, 1954.

IT FURTHER APPEARS THAT CAPTAIN PALMER WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST WITH THE RANK OF CAPTAIN, EFFECTIVE JUNE 1, 1956, WITH A TOTAL OF 4666 POINTS UPON WHICH TO COMPUTE HIS RETIRED PAY, PURSUANT TO THE PROVISIONS OF SECTIONS 440H AND 440I OF TITLE 34, UNITED STATES CODE, AND THAT BY LETTER DATED NOVEMBER 14, 1956, THE CHIEF OF NAVAL PERSONNEL ADVISED CAPTAIN PALMER THAT HIS TRANSFER TO THE RETIRED LIST WAS IN ERROR, SINCE HE HAD LESS THAN 20 YEARS' SATISFACTORY FEDERAL SERVICE, HIS NAVAL ACADEMY SERVICE BEING CREDITABLE ONLY FOR THE PURPOSE OF COMPUTING RETIRED PAY. IT APPEARS ALSO THAT ON NOVEMBER 27, 1956, THE SECRETARY OF THE NAVY CANCELED HIS RETIREMENT AS OF JUNE 1, 1956; THAT UPON THE CANCELLATION OF HIS RETIREMENT HE HAS RETURNED TO HIS READY RESERVE STATUS IN THE NAVAL RESERVE RETROACTIVE TO JUNE 1, 1956; THAT HE WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST EFFECTIVE APRIL 1, 1958, UNDER THE PROVISIONS OF SECTION 1331 AND 6017 OF TITLE 10 OF THE U.S.C. 70A STAT. 102 AND 376; AND THAT HIS RETIRED PAY WAS COMPUTED ON THE ACTIVE DUTY PAY OF A CAPTAIN HAVING OVER 18 YEARS' SERVICE, WITH A TOTAL OF 4932 POINTS AND 13.70 YEARS' CREDIT DETERMINED UNDER THE PROVISIONS OF SECTIONS 1332, 1333 AND 1401 OF TITLE 10, UNITED STATES CODE.

ON MAY 14, 1959, CAPTAIN PALMER FILED A PETITION IN THE UNITED STATES COURT OF CLAIMS, CT.CL.NO. 213-59, SEEKING A JUDGMENT FOR RETIRED PAY FOR THE PERIOD FROM MARCH 1, 1954, TO MARCH 31, 1958, AND INCREASED RETIRED PAY FROM APRIL 1, 1958, TO DATE OF JUDGMENT, BY REASON OF SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY, NOT PREVIOUSLY INCLUDED IN THE COMPUTATION OF SERVICES FOR RETIREMENT BENEFIT PURPOSES. FOLLOWING THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JALBERT V. UNITED STATES, CT.CL.NO. 297-58, DECIDED JULY 15, 1959, A MOTION TO DISMISS THE ACTION WAS DEPOSITED WITH THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF A CLAIM PRESENTED TO OUR OFFICE.

IN YOUR PRESENT LETTER IT IS STATED THAT THE CLAIMS DIVISION SETTLEMENT OF AUGUST 16, 1960, IS NOT SATISFACTORY, SINCE THE RETIRED PAY FROM APRIL 1, 1958, SHOULD BE COMPUTED ON THE BASIS OF 2 1/2 TIMES 13.7 YEARS; THAT CAPTAIN PALMER'S TOTAL RETIREMENT POINTS ON APRIL 1, 1958, WERE 4932; AND THAT THE RESULTANT MULTIPLIER OF 34.25 PERCENT AS OF APRIL 1, 1958, SHOULD BE APPLIED AGAINST THE BASE PAY OF A CAPTAIN WITH OVER 24 YEARS' SERVICE. IT APPEARS TO BE YOUR VIEW THAT, WHILE CAPTAIN PALMER IS ENTITLED TO RETIRED PAY FROM MARCH 1, 1954, HE IS ENTITLED TO INCREASED RETIRED PAY FROM APRIL 1, 1958, PURSUANT TO SECTION 676 OF TITLE 10 UNITED STATES CODE.

ASIDE FROM ANY CONSIDERATION WHETHER CAPTAIN PALMER IS ENTITLED TO THE BENEFIT OF SAID SECTION 676 OF TITLE 10, U.S.C. IT NOW APPEARS THAT HE WAS NOT QUALIFIED FOR TRANSFER TO THE RETIRED LIST ON APRIL 1, 1954, UNDER THE PROVISIONS OF SECTION 302 OF TITLE III, ACT OF JUNE 29, 1948, AS AMENDED, 34 U.S.C. 440I. SEE WILLIAMS V. UNITED STATES, 127 CT.CL. 167. THE JALBERT CASE CITED AS A BASIS FOR CAPTAIN PALMER'S CLAIM CONCERNED THE QUESTION OF CREDITY FOR ATTENDANCE AT THE UNITED STATES NAVAL ACADEMY, IN THE COMPUTATION OF RETIRED PAY, AND NOT, AS HERE, THE CREDIT OF SUCH ATTENDANCE FOR THE PURPOSE OF QUALIFICATION FOR RETIRED PAY. HENCE, IT APPEARS THAT CAPTAIN PALMER DID NOT QUALIFY FOR RETIREMENT UNTIL MARCH 1958.

ACCORDINGLY, IT IS DETERMINED THAT THE SETTLEMENT OF AUGUST 16, 1960, IS IN ERROR, AND THE CHECK ISSUED IN PAYMENT OF THAT SETTLEMENT SHOULD BE RETURNED IMMEDIATELY FOR CANCELLATION.

IN THE PRESENT REVIEW OF THE MATTER IT IS NOTED THAT CAPTAIN PALMER'S RETIRED PAY HAS BEEN COMPUTED ON THE BASIS OF HIS HAVING OVER 18 BUT LESS THAN 22 YEARS' SERVICE FOR RETIRED PAY PURPOSES, WHEREAS UNDER THE DECISION OF THE JALBERT CASE, HIS ACADEMY SERVICE IS CREDITABLE FOR THAT PURPOSE, AND HIS RETIRED PAY, EFFECTIVE APRIL 1, 1958, SHOULD BE COMPUTED ON THE BASIS OF THE PAY OF A CAPTAIN WITH OVER22 BUT LESS THAN 26 YEARS' SERVICE. IF SETTLEMENT INSTRUCTIONS WILL BE ISSUED TO OUR CLAIMS DIVISION TO ADJUST HIS RETIRED PAY FROM APRIL 1, 1958, TO A CURRENT DATE, AND THE DEPARTMENT OF THE NAVY ADVISED OF OUR ACTION IN ORDER THAT ITS PAYMENTS MAY ALSO BE ADJUSTED.