B-141298, JAN. 20, 1960

B-141298, JAN. 20, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1959, WITH ENCLOSURES, PRESENTING ALTERNATE CLAIMS ON BEHALF ON MR. FRANK LAUGEL, FOR INCREASED RETIRED PAY FOR THE PERIOD FROM JUNE 30, 1945, THE DAY FOLLOWING MR. LAUGEL'S RELEASE FROM ACTIVE DUTY, THROUGH THE DATE OF SETTLEMENT. THE FIRST CLAIM IS FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED ON THE BASIS ON ONE-HALF OF HIS BASE PAY, PLUS PERMANENT ADDITIONS THERETO, PLUS 10 PERCENT FOR GOOD CONDUCT, AND RETIRED PAY ACTUALLY RECEIVED BY MR. LAUGEL COMPUTED ON THE BASIS OF ONE-THIRD OF HIS BASE PAY PLUS PERMANENT ADDITIONS. IN THE ALTERNATIVE, CLAIM IS MADE FOR RETIRED PAY PURSUANT TO THE PROVISIONS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 368, CONSISTING OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF THE OFFICER RANK HE WAS RECEIVING AT THE TIME OF RETIREMENT OR RELEASE TO INACTIVE DUTY, LESS THE AMOUNT OF RETIRED PAY RECEIVED FOR THE PERIOD FROM JUNE 30, 1945, TO THE DATE OF SETTLEMENT OF THE CLAIM.

THE PRIME CLAIM NOW PRESENTED IS THE SAME AS THE CLAIM PRESENTED BY MR. LAUGEL BY LETTER DATED JUNE 23, 1958. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF DECEMBER 3, 1958, FOR THE REASON THAT MR. LAUGEL HAD NOT COMPLETED 20 YEARS' SERVICE FOR TRANSFER TO THE FLEET RESERVE PURPOSES AND HENCE THERE WAS NO AUTHORITY FOR RECOMPUTATION OF HIS RETIRED PAY ON THE ONE-HALF BASE PAY FORMULA. THAT PORTION OF YOUR PRESENT LETTER RELATING TO THIS MATTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF DECEMBER 3, 1958.

BY LETTER DATED NOVEMBER 20, 1958, THE U.S. NAVY FINANCE CENTER ADVISED US THAT:

"RECORDS OF THE NAVY FINANCE CENTER SHOW THAT LIEUTENANT (JUNIOR GRADE) LAUGEL WAS TRANSFERRED TO THE FLEET NAVAL RESERVE, CLASS 1-C, IN THE RATING OF CMM (PA) AND RELEASED FROM ACTIVE DUTY ON JULY 1922, HAVING COMPLETED A TOTAL OF 14 YEARS 5 MONTHS AND 12 DAYS SERVICE FOR TRANSFER. HE WAS SUBSEQUENTLY RECALLED TO ACTIVE DUTY ON 4 AUGUST 1941 AND RELEASED THEREFROM ON 29 JUNE 1945, HAVING COMPLETED A TOTAL OF 18 YEARS 4 MONTHS AND 8 DAYS SERVICE.

"MR. LAUGEL WAS RETIRED 1 FEBRUARY 1938 AND ADVANCED ON THE RETIRED LIST TO THE RANK OF LT (JG) WHICH WAS THE HIGHEST RANK SATISFACTORILY HELD, PURSUANT TO THE PROVISIONS OF PUBLIC LAW 305, APPROVED 21 FEBRUARY 1956.

OUR FILE DOES NOT INDICATE THAT MR. LAUGEL IS ENTITLED TO THE 10 PERCENT INCREASE OF RETIRED PAY FOR GOOD CONDUCT MARKS.

THE CIRCUMSTANCES OF THE PRESENT MATTER ARE SIMILAR IN ALL BASIC FEATURES TO THOSE CONSIDERED IN OUR DECISION OF DECEMBER 4, 1957, B 134160, 37 COMP. GEN. 383, WHICH WAS ADDRESSED TO THE CLAIMANT THEREIN IN CARE OF YOUR OFFICE. IN THAT DECISION, IT WAS HELD, QUOTING FROM THE HEADNOTE:

"A NAVY ENLISTED MAN WHO HAD THIRTEEN YEARS, SEVEN MONTHS AND FIVE DAYS OF SERVICE ON TRANSFER TO THE FLEET NAVAL RESERVE UNDER THE ACT OF JULY 1, 1922, AND WHO SUBSEQUENTLY PERFORMED ACTIVE DUTY AFTER TRANSFER SO THAT HE HAD AN AGGREGATE OF SEVENTEEN YEARS, ONE MONTH, AND TWENTY-TWO DAYS OF SERVICE ON DECEMBER 7, 1945, WHEN HE WAS RELEASED FROM ACTIVE DUTY, IS NOT ENTITLED TO ANY INCREASED RETIRED PAY BY REASON OF TOTAL SERVICE INTERRUPTED BY INACTIVE TIME IN THE FLEET NAVAL RESERVE, BUT IS ENTITLED ONLY TO THE SAME RETIRED PAY AS A MAN TRANSFERRED TO THE FLEET RESERVE ON THAT DAY UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854B, WITH MORE THAN SIXTEEN YEARS BUT LESS THAN TWENTY YEARS OF SERVICE.'

THE DECISION OF DECEMBER 4, 1957, WAS RECONSIDERED AT YOUR REQUEST, IN BEHALF OF YOUR CLIENT, AND IN OUR DECISION OF JANUARY 29, 1958, B 134160, WE FURTHER EXPLAINED THE BASES FOR OUR CONCLUSIONS AND AFFIRMED THE DECISION OF DECEMBER 4, 1957. A COPY OF EACH OF THE DECISIONS IS ENCLOSED.

FOR THE REASONS SET FORTH IN OUR DECISIONS OF DECEMBER 4, 1957, AND JANUARY 29, 1958, CITED ABOVE, THE DISALLOWANCE OF MR. LAUGEL'S CLAIM BY SETTLEMENT DATED DECEMBER 3, 1958, IS SUSTAINED.

IT APPEARS THAT THE BASIS OF THE ALTERNATIVE CLAIM IS THAT ON JUNE 29, 1945, MR. LAUGEL WAS RE-RETIRED AS A COMMISSIONED OFFICER RATHER THAN RETURNED TO THE RETIRED LIST AS AN ENLISTED MAN AND ADVANCED THEREON TO THE HIGHEST COMMISSIONED RANK HELD ON ACTIVE DUTY.

THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE UNITED STATES NAVY AND MARINE CORPS, JANUARY 1, 1950 (NAVPERS 15,015), LISTSMR. LAUGEL ON PAGE 491, IN THE SECTION LISTING RETIRED ENLISTED MEN "ADVANCED TO OR PLACED UPON THE RETIRED LIST IN THE HIGHEST COMMISSIONED OR WARRANT GRADE HELD DURING * * * WORLD WAR II OR NATIONAL EMERGENCY IN ACCORDANCE WITH AN ACT OF CONGRESS APPROVED JULY 24, 1941 AS AMENDED BY AN ACT OF CONGRESS APPROVED FEBRUARY 21, 1946.'

SINCE IT DOES NOT APPEAR THAT MR. LAUGEL SUFFERED PHYSICAL DISABILITY AND RETIRED AS A COMMISSIONED OFFICER FOR THAT REASON ON HIS RELEASE FROM ACTIVE DUTY ON JUNE 29, 1945, HE WAS MERELY RELEASED FROM ACTIVE DUTY AND RETURNED TO HIS ENLISTED RETIRED STATUS. MR. LAUGEL WAS RETIRED AS AN ENLISTED MAN, BUT, PURSUANT TO THE ACT OF JULY 24, 1941, AS AMENDED, HE BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST RANK ATTAINED (LIEUTENANT (JG) ). IN THIS CIRCUMSTANCE HE WAS RETIRED IN THE "OFFICE" OF AN ENLISTED MAN, AND, AS SUCH, IS NOT ELIGIBLE FOR THE BENEFITS OF PARAGRAPH 4 OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. CF. 37 COMP. GEN. 585. ACCORDINGLY, THE ALTERNATIVE CLAIM IS ALSO DENIED.