B-148855, NOV. 1, 1962

B-148855, NOV. 1, 1962

TO MR. ROBERT L. FITZPATRICK:

REFERENCE IS MADE TO THE LETTER OF APRIL 23, 1962, FROM YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF THE DETERMINATION MADE BY THE CLAIMS DIVISION OF OUR OFFICE THAT YOU HAD BEEN OVERPAID RETIRED PAY COMPUTED UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, NOW CODIFIED IN CHAPTERS 61, 69 AND 71 OF TITLE 10, U.S. CODE, BASED ON 26 RATHER THAN 25 YEARS OF ACTIVE SERVICE FOR PERCENTAGE MULTIPLE PURPOSES. IN THE SETTLEMENT IN QUESTION, DATED NOVEMBER 1, 1961, YOU WERE ALLOWED AN ADJUSTMENT IN RETIRED PAY COMPUTED UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT AT 65 PERCENT (2 1/2 PERCENT TIMES 26 YEARS OF ACTIVE SERVICE) OF THE PAY OF A CHIEF COMMISSARY MAN WITH OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES.

AT THE TIME OF YOUR TRANSFER TO THE FLEET RESERVE, OCTOBER 28, 1938, YOU HAD SERVED ON ACTIVE DUTY IN THE NAVY 20 YEARS, 11 MONTHS, AND 27 DAYS, WHICH SERVICE WAS CREDITED AS 21 YEARS, 1 MONTH, AND 4 DAYS FOR PURPOSES OF TRANSFER BY INCLUDING CREDIT FOR 1 DAY OF CONSTRUCTIVE SERVICE IN AN ENLISTMENT TERMINATED WITHIN 3 MONTHS OF EXPIRATION AND BY NOT DEDUCTING 36 DAYS LOST BY REASON OF SICKNESS DUE TO MISCONDUCT. SUBSEQUENTLY, YOU SERVED ON ACTIVE DUTY FROM JULY 28, 1940, TO AUGUST 28, 1941, AND FROM SEPTEMBER 23, 1941, TO FEBRUARY 2, 1945, A TOTAL OF 4 YEARS, 5 MONTHS, AND 10 DAYS CREDITABLE AFTER DEDUCTING 1 DAY OF UNAUTHORIZED ABSENCE ON APRIL 9, 1941. YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST ON SEPTEMBER 1, 1941, BY REASON OF 60 PERCENT PHYSICAL DISABILITY INCURRED IN LINE OF DUTY DURING A PERIOD OF ACTIVE SERVICE. EFFECTIVE OCTOBER 1, 1949, YOU ELECTED TO QUALIFY FOR DISABILITY RETIRED PAY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT AND TO RECEIVE RETIRED PAY COMPUTED AT 2 1/2 PERCENT OF THE MONTHLY BASIC PAY TO WHICH YOU WOULD BE ENTITLED UNDER THE PAY RATES IN THE 1949 ACT MULTIPLIED BY THE YEARS OF ACTIVE SERVICE CREDITABLE TO YOU.

IN YOUR ORIGINAL CLAIM OF JUNE 1, 1961, FOR ADJUSTMENT IN RETIRED PAY, IT WAS CONTENDED THAT YOU WERE ENTITLED TO CREDIT FOR 26 YEARS OF ACTIVE SERVICE IN THE PERCENTAGE MULTIPLE BY NOT DEDUCTING FROM YOUR ACTUAL SERVICE THE 36 DAYS LOST BY REASON OF SICKNESS DUE TO YOUR OWN MISCONDUCT AND THE 1 DAY OF UNAUTHORIZED ABSENCE. THIS CLAIM WAS PURPORTEDLY BASED ON OUR DECISION OF OCTOBER 14, 1955, B-123795.

BY LETTER OF JUNE 8, 1962, YOUR ATTORNEYS RAISED A QUESTION AS TO THE CORRECTNESS OF THE DETERMINATION THAT YOU HAD LOST 36 DAYS BY REASON OF SICKNESS RESULTING FROM YOUR OWN MISCONDUCT, STATING THAT FROM AUGUST 31 TO SEPTEMBER 4, 1931, AND FROM FEBRUARY 2 THROUGH MARCH 4, 1937, YOU WERE HOSPITALIZED FOR INJURIES NOT INCURRED THROUGH MISCONDUCT. THEY ALSO QUESTIONED THE ACCURACY OF THE REPORT PREVIOUSLY FURNISHED SHOWING THE DATES OF YOUR RECALL TO ACTIVE DUTY IN JULY 1940 AND IN SEPTEMBER 1941. THAT INFORMATION WAS FORWARDED TO THE BUREAU OF NAVAL PERSONNEL, WHICH HAS NOW FURNISHED A CORRECTED STATEMENT OF SERVICE SHOWING THAT YOU REPORTED FOR ACTIVE DUTY ON JULY 28, 1940 (INSTEAD OF JULY 29, 1940, AS PREVIOUSLY SHOWN), AND ON SEPTEMBER 23, 1941 (INSTEAD OF SEPTEMBER 24, 1941, AS PREVIOUSLY SHOWN), RESULTING IN TWO ADDITIONAL DAYS OF ACTIVE SERVICE, WHICH HAVE BEEN INCLUDED IN THE SERVICE SHOWN ABOVE. HOWEVER, THE TIME LOST BY REASON OF SICKNESS DUE TO YOUR OWN MISCONDUCT HAS BEEN VERIFIED AS 36 DAYS COVERING THE FOLLOWING PERIODS: AUGUST 31 TO SEPTEMBER 4, 1931 (5 DAYS), AND FEBRUARY 2 TO MARCH 4, 1937 (31 DAYS). YOUR ACTUAL SERVICE, AS VERIFIED FROM THE OFFICIAL RECORDS, THEREFORE, TOTALS 25 YEARS, 5 MONTHS, AND 7 DAYS.

THE SERVICE CREDITABLE FOR BASIC PAY PURPOSES IS FOR DETERMINATION UNDER SECTION 202 OF THE CAREER COMPENSATION ACT, NOW CODIFIED AS 37 U.S.C. 205, WHICH, AS INTERPRETED BY THE COURT OF CLAIMS IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), AUTHORIZES ADDING TO THE SERVICE OTHERWISE CREDITABLE FOR LONGEVITY OR BASIC PAY PURPOSES INACTIVE TIME IN THE FLEET RESERVE FOR DETERMINING THE APPLICABLE RATE OF BASIC PAY TO BE USED IN COMPUTATION OF DISABILITY RETIRED PAY UNDER TITLE IV OF THE ACT. YOUR ACTUAL SERVICE AS SHOWN ABOVE PLUS 1 YEAR, 9 MONTHS, AND 23 DAYS OF INACTIVE TIME IN THE FLEET RESERVE TOTALS 27 YEARS AND 3 MONTHS. THEREFORE, THE RATE OF BASIC PAY AUTHORIZED IN THE 1949 ACT FOR A CHIEF COMMISSARY MAN WITH OVER 26 YEARS OF SERVICE WAS PROPERLY USED IN THE SETTLEMENT IN QUESTION.

SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1178, NOW CODIFIED IN CHAPTER 571 OF TITLE 10, U.S. CODE, UNDER WHICH YOU WERE TRANSFERRED TO THE FLEET RESERVE AND LATER TO THE RETIRED LIST, PROVIDED THAT ALL SUCH TRANSFERS MADE BY THE SECRETARY OF THE NAVY SHOULD BE CONCLUSIVE FOR ALL PURPOSES AND VESTED IN THE SECRETARY OF THE NAVY EXCLUSIVE AUTHORITY AND RESPONSIBILITY FOR DETERMINING THE GRADE OR RANK AND LENGTH OF SERVICE OF THE TRANSFERRED MEMBERS. BASED ON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WHITE V. UNITED STATES, 121 CT.CL. 1 (1951), YOUR TOTAL SERVICE CREDITABLE FOR TRANSFER AS DETERMINED BY THE SECRETARY, INCLUDING TIME LOST BY REASON OF SICKNESS DUE TO MISCONDUCT AND CONSTRUCTIVE TIME IN A SHORT-TERM ENLISTMENT, WAS AUTHORIZED TO BE USED IN DETERMINING THE PERCENTAGE MULTIPLE IN COMPUTING YOUR RETIRED PAY UNDER THE FORMULA PRESCRIBED IN SECTION 204 OF THE NAVAL RESERVE ACT AS AMENDED BY THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 993. HOWEVER, YOUR ELECTION TO RECEIVE YOUR RETIRED PAY UNDER TITLE IV OF THE CAREER COMPENSATION ACT REQUIRES THE EXCLUSION OF BENEFITS UNDER PRIOR ACTS UNLESS THOSE BENEFITS ARE SPECIFICALLY INCLUDED IN THE 1949 ACT.

THE YEARS OF ACTIVE SERVICE CREDITABLE TO YOU TO BE USED AS THE PERCENTAGE MULTIPLE IN COMPUTATION OF YOUR RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT, 10 U.S.C. 1401, MUST BE DETERMINED IN ACCORDANCE WITH THE DEFINITION CONTAINED IN SECTION 412 OF THE ACT, 10 U.S.C. 1208. THAT DEFINITION DOES NOT INCLUDE TIME LOST FROM AN ENLISTMENT BY REASON OF SICKNESS DUE TO MISCONDUCT. FURTHERMORE, IT WAS PROVIDED IN THE ACT OF AUGUST 29, 1916, CH. 417, 39 STAT. 580, AS AMENDED, 10 U.S.C. 5536 (NOW REPEALED AND SUPERSEDING STATUTE CODIFIED IN 10 U.S.C. 972), THAT IF AN ENLISTED MEMBER OF THE NAVAL SERVICE WAS UNABLE TO PERFORM HIS DUTIES FOR A PERIOD OF MORE THAN ONE DAY BECAUSE OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS MISCONDUCT, HIS ENLISTMENT WAS NOT REGARDED AS COMPLETE UNTIL HE HAD MADE GOOD THE TIME SO LOST.

THE DECISION IN THE CALANDE CASE, CITED BY YOU, B-123795, OCTOBER 14, 1955, DOES NOT FURNISH AUTHORITY FOR CREDITING THE TIME LOST BECAUSE OF SICKNESS DUE TO MISCONDUCT FOR THE PURPOSE OF INCREASING YOUR ACTIVE SERVICE CREDITABLE UNDER SECTION 412 OF THE CAREER COMPENSATION ACT. THE CALANDE DECISION DEALT ONLY WITH COMPUTATION OF SERVICE UNDER SECTION 516 OF THE CAREER COMPENSATION ACT, NOW CODIFIED IN 10 U.S.C. 1402, WHICH PROVIDES FOR THE PERCENTAGE MULTIPLE TO BE DETERMINED BY THE YEARS OF SERVICE CREDITABLE AT THE TIME OF RETIREMENT OR TRANSFER TO THE FLEET RESERVE PLUS THE YEARS OF ACTIVE SERVICE AFTER RETIREMENT OR TRANSFER TO THE FLEET RESERVE. THE YEARS OF SERVICE CREDITABLE TO CALANDE AT THE TIME OF TRANSFER (INCLUDING TIME LOST FROM AN ENLISTMENT BY REASON OF SICKNESS DUE TO MISCONDUCT) WERE DETERMINED BY THE SECRETARY OF THE NAVY IN ACCORDANCE WITH SECTION 202 OF THE NAVAL RESERVE ACT OF 1938. SECTION 516 COVERS ONLY PERSONS ON THE RETIRED OR RETAINER LIST WHO, AFTER OCTOBER 1, 1949, AGAIN SERVE ON ACTIVE DUTY. COMPARE 39 COMP. GEN. 844, COVERING THE CASE OF A NON-DISABLED FLEET RESERVIST WHOSE RETAINER AND RETIRED PAY, EFFECTIVE OCTOBER 1, 1949, WERE COMPUTED UNDER SECTION 511 OF THE CAREER COMPENSATION ACT.

SECTION 412 DID NOT CONTAIN A PROVISION SIMILAR TO THAT CONTAINED IN SECTION 516, BUT COVERED ACTUAL ACTIVE DUTY ONLY. YOUR ADJUSTMENT IN RETIRED PAY, THEREFORE, SHOULD HAVE BEEN COMPUTED AT 62 1/2 PERCENT (2 1/2 TIMES 25 YEARS OF ACTIVE SERVICE) OF THE PAY OF A CHIEF COMMISSARY MAN WITH OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES. SINCE THE ADJUSTMENT WAS COMPUTED ON A PERCENTAGE MULTIPLE BASED ON 26 RATHER THAN 25 YEARS OF ACTIVE SERVICE, YOU WERE OVERPAID $986.13 AND THIS AMOUNT SHOULD BE REFUNDED PROMPTLY BY CHECK OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE AND FORWARDED TO THE "U.S. GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C.'