B-143737, OCTOBER 20, 1960, 40 COMP. GEN. 223

B-143737, OCTOBER 20, 1960, 40 COMP. GEN. 223

MILITARY PERSONNEL - PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD TIME THE FAILURE OF AN ENLISTED MEMBER OF THE NAVY WHO WAS TRANSFERRED TO THE FLEET RESERVE ON JANUARY 21, 1946, AND WHO QUALIFIED FOR INCREASED RETAINER PAY UNDER THE NAVAL RESERVE ACT OF 1938, AS AMENDED BY THE ACT OF AUGUST 10, 1946, TO RETURN EXECUTED ELECTION FORMS, WHICH WERE MAILED TO HIM IN JUNE AND NOVEMBER 1947 AND WERE NOT RETURNED AS UNDELIVERABLE, TOGETHER WITH THE CONTINUED ACCEPTANCE OF RETAINER PAY BASED ON LAWS IN EFFECT ON AUGUST 9, 1946, CONSTITUTE A TACIT ELECTION OF THE RETAINER PAY AUTHORIZED BY THE LAWS PRIOR TO ACT OF AUGUST 10, 1946, AND AN EXECUTED ELECTION RECEIVED FROM THE MEMBER ON MAY 20, 1960, TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED UNDER LAWS IN EFFECT ON AND AFTER AUGUST 10, 1946, MAY NOT BE REGARDED AS A TIMELY AND VALID ELECTION UNDER SECTION 9 OF THE ACT OF AUGUST 10, 1946, SO AS TO ENTITLE THE MEMBER TO CREDIT FOR A FRACTIONAL YEAR OF SIX MONTHS OR MORE OF SERVICE AS A FULL YEAR UNDER THE SIXTH PROVISO OF SECTION 2 OF THE ACT OF AUGUST 10, 1946. SINCE THE HOLDING IN LOUIS E. FAGAN, ET AL. ( LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.1CL. NO. 535-57) DECIDED MAY 4, 1960, THAT THE CAREER INCENTIVE ACT OF 1955 DID NOT TERMINATE THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO CHANGE THE METHOD OF HAVING HIS RETIRED PAY COMPUTED SO AS TO RECEIVE THE ADVANTAGE OF THE MORE FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CASES, A RETIRED FLEET RESERVIST WHOSE RETIRED PAY WAS COMPUTED PRIOR TO APRIL 1, 1955, THE EFFECTIVE DATE OF THE CAREER INCENTIVE ACT OF 1955, UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT MAY HAVE HIS RETIRED PAY COMPUTED EFFECTIVE APRIL 1, 1955, AT THE GREATER RATE PROVIDED UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT.

TO E. C. DODD, DEPARTMENT OF THE NAVY, OCTOBER 20, 1960:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1960, WITH ENCLOSURES, FORWARDED HERE UNDER SUBMISSION NO. DO-N-520 (ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING DECISION ON CERTAIN QUESTIONS IN REGARD TO THE RETIRED PAY OF DRAYPHUS W. EVANS, ACOM.

IT APPEARS THAT EVANS WAS TRANSFERRED TO THE FLEET RESERVE AND RELEASED TO INACTIVE DUTY ON JANUARY 21, 1946, AND THAT HE THEN HAD COMPLETED 23 YEARS, 8 MONTHS, 29 DAYS' ACTIVE SERVICE, AND 1 MONTH, 28 DAYS' INACTIVE SERVICE, A TOTAL OF 23 YEARS, 10 MONTHS, 27 DAYS. IT FURTHER APPEARS THAT FROM JANUARY 22, 1946, TO JUNE 30, 1946, EVANS RECEIVED RETAINER PAY UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, 34 U.S.C. 854B, AT THE RATE OF $129.03 PER MONTH, APPARENTLY COMPUTED AT $69, ONE- HALF OF BASE PAY, PLUS $48.30, PERMANENT ADDITIONS (LONGEVITY) FOR OVER 21 AND LESS THAN 24 YEARS' SERVICE, PLUS $11.73 FOR GOOD CONDUCT; AND THAT ON THE SAME FORMULA, HIS RETAINER PAY WAS INCREASED TO $154.28 PER MONTH EFFECTIVE JULY 1, 1946, IN ACCORDANCE WITH THE RATES OF PAY PRESCRIBED IN THE ACT OF JUNE 29, 1946, 60 343, 37 U.S.C. 109 (1946 USED.)

SECTION 203 OF THE NAVAL RESERVE ACT OF 1938, UNDER WHICH EVANS RECEIVED RETAINER PAY, PERTAINED GENERALLY TO MEN WHO FIRST ENLISTED IN THE NAVY ON OR BEFORE JULY 1, 1925. SECTION 204 OF THAT ACT, 52 STAT. 1179, 34 U.S.C. 854C, PERTAINED GENERALLY, TO MEMBER WHO FIRST ENLISTED AFTER JULY 1, 1925. SECTION 2 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854 NOTE, AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 SO AS TO PROVIDE A NEW AND MORE LIBERAL BASIS FOR THE COMPUTATION OF RETAINER AND RETIRED PAY THEREUNDER AND PROVIDED: "THAT A FRACTIONAL YEAR OF SIX MONTHS OR MORE SHALL BE CONSIDERED A FULL YEARS FOR PURPOSES OF THIS SECTION AND SECTION 203 IN COMPUTING YEARS OF ACTIVE FEDERAL SERVICE AND BASE AND LONGEVITY PAY.'

SECTION 9 OF THE 1946 ACT, 60 STAT. 997, 34 U.S.C. 854C NOTE (1946 USED.), PROVIDED:

NO BACK PAY FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT OF THIS ACT SHALL ACCRUE TO ANY PERSON BY REASON OF THE ENACTMENT OF THIS ACT EXCEPT AS OTHERWISE PROVIDED IN SECTION 3. NO PERSON, ACTIVE OR RETIRED, OF ANY OF THE ARMED FORCES, SHALL SUFFER, BY REASON OF THIS ACT, ANY REDUCTION IN ANY PAY, ALLOWANCES, OR COMPENSATION TO WHICH HE WAS ENTITLED UPON THE EFFECTIVE DATE OF THIS ACT. RETIRED ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS, PERSONNEL OF THE NAVY AND MARINE CORPS WHO ARE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND PERSONNEL OF THE NAVY AND MARINE CORPS WHO BECOME ELIGIBLE AND WHO APPLY FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE SHALL RECEIVE AN OPPORTUNITY TO ELECT TO RECEIVE RETAINER AND RETIRED PAY UNDER THE PROVISIONS OF THIS ACT OR TO RECEIVE SUCH PAY UNDER THE PROVISIONS OF LAW IN EFFECT IMMEDIATELY PRIOR TO THE DATE OF THE ENACTMENT OF THIS ACT, AND THESE PERSONS SHALL BE ENTITLED TO RECEIVE THE PAY ELECTED.

IT IS STATED THAT THERE IS NO SHOWING THAT EVANS MADE AN ELECTION UNDER THE ABOVE SECTION. PRESUMABLY, HE WAS PAID FROM AUGUST 10, 1946, TO SEPTEMBER 30, 1949, AT THE SAME RATE OF RETAINER PAY WHICH HE WAS RECEIVING ON AUGUST 9, 1946. IT APPEARS THAT EFFECTIVE OCTOBER 1, 1949, HIS RETAINER PAY WAS INCREASED TO $167.58 PER MONTH UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1946, 63 STAT. 829, 37 U.S.C. 311, THAT IS, BASIC PAY TIMES TWO AND ONE-HALF PERCENT TIMES YEARS OF ACTIVE DUTY (23 YEARS, 8 MONTHS, 29 DAYS AS 24 YEARS). IT FURTHER APPEARS THAT ON DECEMBER 1, 1951, EVANS WAS PLACED ON THE RETIRED LIST, HAVING COMPLETED A TOTAL OF 30 YEARS' SERVICE, ACTIVE AND INACTIVE, AND WAS ADVANCED ON THE RETIRED LIST EFFECTIVE AS OF THAT DATE TO THE RANK OF CHIEF GUNNER; THAT HIS RETIRED PAY FROM DECEMBER 1, 1951, TO APRIL 30, 1952, WAS COMPUTED UNDER METHOD (A) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, ON THE BASIS OF LAWS IN EFFECT ON SEPTEMBER 30, 1949, AND ON THE FORMULA OF ONE-HALF OF BASE PAY, PLUS PERMANENT ADDITIONS FOR 24 YEARS' SERVICE, PLUS GOOD CONDUCT INCREASE, AT THE AGGREGATE RATE OF $207.90 PER MONTH; AND THIS HIS RETIRED PAY WAS INCREASED FOUR PERCENT ON MAY 1, 1952, AND SIX PERCENT ON APRIL 1, 1955. FINALLY, IT APPEARS THAT EFFECTIVE JUNE 1, 1958, EVANS' RETIRED PAY WAS COMPUTED UNDER METHOD (A) OF SECTION 511 ON THE BASIS OF 21 YEARS' SERVICE FOR BASIC PAY PURPOSES (PERMANENT ADDITIONS), RATHER THAN 24 YEARS, YIELDING $229.44 PER MONTH, SUCH NEW COMPUTATION BEING BASED ON OUR ANSWER TO QUESTION 5 IN 27 COMP. GEN. 238, OCTOBER 24, 1947.

THE ENCLOSURE FORWARDED WITH YOUR LETTER IS A COPY OF A FORM EXECUTED BY EVANS AND RECEIVED IN THE NAVY FINANCE CENTER ON MAY 20, 1960, ELECTING UNDER SECTION 9 OF THE ACT OF AUGUST 10, 1946, TO HAVE HIS RETAINER AND RETIRED PAY COMPUTED UNDER LAWS IN EFFECT ON AND AFTER AUGUST 10, 1946.

THE QUESTIONS PRESENTED FOR DECISION ARE SEPARATELY QUOTED AND DISCUSSED BELOW:

A. IS THE ELECTION FORM EXECUTED BY EVANS AND RETURNED TO THE NAVY FINANCE CENTER ON 20 MAY 1960 CONSIDERED TO BE A TIMELY AND VALID ELECTION UNDER SECTION 9 OF REFERENCE (B) SO AS TO ENTITLE HIM, UNDER THE SIXTH PROVISO OF SECTION 2 OF REFERENCE (B), AND SUBJECT TO THE ACT OF 9 OCTOBER 1940, 54 STAT. 1061, 31 U.S.C. REFERENCE (B), AND SUBJECT TO THE ACT OF 9 OCTOBER 1940, 54 STAT. 1061, 31 U.S.C. 71A, TO COUNT A FRACTIONAL YEAR OF SIX MONTHS OR MORE AS A FULL YEAR IN COMPUTING HIS RETIRED PAY FOR THE PERIOD 10 AUGUST 1946 THROUGH 30 SEPTEMBER 1949 AND 1 DECEMBER 1951 THROUGH 31 MARCH 1955?

EVANS WAS IN RECEIPT OF RETAINER PAY ON AUGUST 9, 1946, AND WAS ELIGIBLE TO MAKE AN ELECTION UNDER SECTION 9 OF THE ACT OF AUGUST 10, 1946. YOUR LETTER STATES THAT ELECTION FORMS AND INFORMATION CONCERNING MAKING AN ELECTION UNDER THAT ACT WERE MAILED TO HIM IN JUNE OF 1947 AND AGAIN IN NOVEMBER 1947. IT IS INDICATED ALSO THAT THE ELECTION FORMS WERE NOT RETURNED AS UNDELIVERABLE. UNDER SUCH CIRCUMSTANCES, WE CONSIDER THAT THE FAILURE TO RETURN AN EXECUTED ELECTION FORM AND THE CONTINUED ACCEPTANCE OF RETAINER PAY ON THE BASIS OF THE LAWS IN EFFECT ON AUGUST 9, 1946, CONSTITUTE A TACIT ELECTION OF THE RETAINER PAY AUTHORIZED BY THOSE LAWS. THE ATTEMPTED ELECTION RECEIVED IN THE NAVY FINANCE CENTER ON MAY 20, 1960, MAY NOT BE CONSIDERED AS A TIMELY VALID ELECTION AND, THEREFORE, QUESTION "A" IS ANSWERED IN THE NEGATIVE.

B. MAY COURT OF CLAIMS DECISION NO. 535-57, DECIDED 4 MAY 1960, LOUIS E. FAGAN, ET AL., ( LEWIS L. GOVER, PLAINTIFF NO. 2) V. THE UNITED STATES, BE FOLLOWED? EVANS RETIRED PAY UNDER SECTION 511 (B) OF REFERENCE (A) WOULD BE GREATER, EFFECTIVE 1 APRIL 1955, THAN PAY UNDER SECTION 511 (A) WITH EITHER 35 PERCENT OR 40 PERCENT LONGEVITY CREDIT.

IN A DECISION OF TODAY, 40 COMP. GEN. 222, A COPY OF WHICH IS ENCLOSED, WE ARE ADVISING THE SECRETARY OF DEFENSE THAT WE WILL FOLLOW THE PRINCIPAL OF THE GOVER CASE. ACCORDINGLY, QUESTION B" IS ANSWERED IN THE AFFIRMATIVE.

C. IF YOUR ANSWER TO THE QUESTION PRESENTED IN PARAGRAPH 7B HEREIN IS IN THE NEGATIVE, ARE EVANS AND MEMBERS WHOSE CASES ARE SIMILAR ENTITLED, UNDER SECTION 25 OF PUBLIC LAW 1028, APPROVED 10 AUGUST 1956, TO COUNT A FRACTIONAL YEAR OF SIX MONTHS OR MORE AS A FULL YEAR FOR LONGEVITY PAY PURPOSES FROM 10 AUGUST 1956 UNDER SECTION 511 (A) OF REFERENCE (A) EVEN IF THEY DID NOT MAKE A VALID ELECTION UNDER SECTION 9 OF REFERENCE (B/?

SINCE QUESTION "B" IS ANSWERED IN THE AFFIRMATIVE, AN ANSWER TO QUESTION "C" IS NOT REQUIRED.