B-142988, JAN. 8, 1962

B-142988, JAN. 8, 1962

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1961, REQUESTING RECONSIDERATION OF THE SETTLEMENT ACTION TAKEN BY OUR CLAIMS DIVISION ON SEPTEMBER 19, 1961, IN ALLOWING ALICE C. LEGETT THE AMOUNT OF $3,526.46, REPRESENTING AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD MARCH 6, 1949, TO DECEMBER 1, 1957, IN THE CASE OF ERNEST NORMAN LEGETT, DECEASED.

THAT PORTION OF THE CLAIM COVERING ADJUSTMENT FOR THE PERIOD NOVEMBER 1, 1946, THROUGH AUGUST 11 (10), 1948, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER AND THE RETIRED PAY PAID TO THE DECEDENT AS AN ENLISTED MAN, BASED ON THE DECISION IN THE CASE OF CLARK, ET AL. V. UNITED STATES, CT.CL. NO. 45-55, DECIDED JUNE 8, 1960, IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, THE RIGHT TO SUCH ADJUSTMENT HAVING ACCRUED UNDER THE ACT OF MAY 27, 1954, 68 STAT. 140. ACCORDINGLY, A SUPPLEMENTAL SETTLEMENT WILL BE ISSUED IN FAVOR OF MRS. LEGETT FOR THIS ADJUSTMENT.

YOU ALSO CLAIM THAT THE DECEDENT SHOULD BE GIVEN CREDIT FOR CONSTRUCTIVE SERVICE IN SHORT-TERM ENLISTMENTS IN ACCORDANCE WITH THE DECISIONS OF THE COURT OF CLAIMS IN THE CASES OF JOHNSON V. UNITED STATES, CT.CL. NO. 217- 56, DECIDED MAY 3, 1961, AND WHILE V. UNITED STATES, 121 CT.CL. 1, WHICH DECISIONS ARE BEING FOLLOWED BY THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. IN THE JOHNSON DECISION, THE COURT HELD THAT SUCH CONSTRUCTIVE SERVICE WAS CREDITABLE IN DETERMINING THE DATE ON WHICH A MEMBER COMPLETED 30 YEARS OF SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829. SINCE MR. LEGETT HAD COMPLETED 30 YEARS OF SERVICE FOR PURPOSES OF TRANSFER TO THE RETIRED LIST AND HAD BEEN SO TRANSFERRED ON JUNE 1, 1946, PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, THE JOHNSON DECISION HAS NO APPLICATION IN HIS CASE.

CONSTRUCTIVE SERVICE IN SHORT-TERM ENLISTMENTS IS CREDITABLE AS "ACTIVE SERVICE" UNDER SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, AS INTERPRETED BY THE COURT IN THE CASE OF WHITE V. UNITED STATES, 121 CT.CL. 1. BY ADDING 3 MONTHS AND 21 DAYS OF CONSTRUCTIVE SERVICE TO MR. LEGETT'S ACTUAL SERVICE OF 26 YEARS, 2 MONTHS AND 20 DAYS, HE WOULD HAVE A TOTAL CREDIT OF 26 YEARS, 6 MONTHS AND 10 DAYS WHICH WOULD BE COUNTED AS 27 YEARS' ACTIVE SERVICE FOR THE PURPOSE OF DETERMINING THE PERCENTAGE MULTIPLE FACTOR UNDER SECTION 204. HOWEVER, THE RETIRED PAY TO WHICH HE WOULD BE ENTITLED, COMPUTED UNDER SECTION 204 AT 2 1/2 PERCENT OF THE PAY OF A CHIEF WARRANT OFFICER WITH OVER 24 YEARS' SERVICE FOR LONGEVITY PURPOSES MULTIPLIED BY 27 YEARS OF ACTIVE SERVICE, WOULD BE $198.45 PER MONTH, WHICH IS LESS THAN THE RATE OF $207.90 PER MONTH WHICH WAS ALLOWED IN CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 19, 1961 FOR THE PERIOD PRIOR TO OCTOBER 1949, COMPUTED IN ACCORDANCE WITH THE FRACTIONAL METHOD PROVIDED IN SECTION 203 OF THE NAVAL RESERVE ACT OF 1938. EFFECTIVE OCTOBER 1, 1949, HIS RETIRED PAY WAS ALLOWED AT THE RATE OF $217.53 PER MONTH, COMPUTED IN ACCORDANCE WITH METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, WHICH RATE, TOGETHER WITH AUTHORIZED INCREASES UNDER THE 1952 AND 1955 PAY ACTS, EXCEEDS THE RATE TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED IN ACCORDANCE WITH THE WHITE DECISION. NO ADDITIONAL AMOUNT MAY BE ALLOWED, THEREFORE, ON THE SUPPLEMENTAL CLAIM COVERING THE PERIOD OCTOBER 1, 1951, TO DECEMBER 1, 1957.

FOR A FURTHER EXPLANATION OF CREDIT FOR CONSTRUCTIVE SERVICE, AS INTERPRETED BY THE COURT OF CLAIMS IN THE WHITE AND JOHNSON DECISIONS, SEE OUR LETTERS ADDRESSED TO YOU UNDER DATES OF MARCH 24, 1959, AND OCTOBER 31, 1961, B-138416, RELATIVE TO THE CLAIM FILED BY YOU ON BEHALF OF GIRARD C. POLITE.