B-150972, JUN. 21, 1963

B-150972, JUN. 21, 1963

TO LIEUTENANT (JG) CHARLES R. BLANCHARD, USN, RETIRED:

REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED JANUARY 14, 1963, AND ENCLOSURES, REQUESTING IN EFFECT RECONSIDERATION OF YOUR CLAIM DATED JANUARY 8, 1962, FOR INCREASED RETIRED PAY WHICH YOU BELIEVE IS DUE YOU FOR THE PERIODS MARCH 4 TO SEPTEMBER 30, 1949, AND SEPTEMBER 1, 1958, TO JUNE 30, 1960, BY REASON OF A CONSTRUCTIVE SERVICE CREDIT INCIDENT TO YOUR MINORITY ENLISTMENT.

IN YOUR LETTER OF JANUARY 8, 1962, YOU REQUESTED CONSIDERATION OF YOUR CLAIM BASED ON OUR DECISION B-147085, DATED OCTOBER 13, 1961, IN WHICH THE HOLDING IN THE CASE OF JOHNSON V. UNITED STATES, CT.CL. NO. 217-56, DECIDED MAY 3, 1961, WAS DISCUSSED. THE JOHNSON DECISION HELD, IN EFFECT, THAT THE CONSTRUCTIVE SERVICE AUTHORIZED IN SECTION 202 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1178, WITH RESPECT TO MINORITY AND SHORT- TERM ENLISTMENTS, MAY BE CREDITED TOWARD THE 30 YEARS OF SERVICE REQUIRED AS A PREREQUISITE TO RECEIPT OF THE RETIRED PAY OF A HIGHER GRADE UNDER METHOD (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829.

YOUR CLAIM WAS DENIED WITH RESPECT TO THE PERIOD PRIOR TO JANUARY 12, 1952, UNDER THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. THE SETTLEMENT ALSO STATED THAT CONSTRUCTIVE SERVICE CREDIT RESULTING FROM MINORITY AND SHORT-TERM ENLISTMENTS PROPERLY MAY NOT BE INCLUDED IN DETERMINING THE RATE OF BASE AND LONGEVITY PAY TO BE USED IN COMPUTING RETAINER OR RETIRED PAY FOR PERIODS PRECEDING OCTOBER 1, 1949, AND THAT EFFECTIVE FROM OCTOBER 1, 1949, WHERE THE PROVISIONS OF SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949 ARE APPLICABLE, SUCH CONSTRUCTIVE CREDITS MAY NOT BE INCLUDED IN DETERMINING THE NUMBER OF YEARS OF ACTIVE SERVICE FOR THE PERCENTAGE MULTIPLE PURPOSES OF METHOD (B) IN SECTION 511.

THE RECORD OF YOUR NAVAL SERVICE SHOWS THAT YOU ENLISTED AS A MINOR ON NOVEMBER 29, 1928, EXTENDED FOR TWO YEARS ON AUGUST 18, 1932, AND SERVED CONTINUOUSLY UNTIL MARCH 3, 1949, AT WHICH TIME YOU TRANSFERRED TO THE FLEET RESERVE WITH 20 YEARS, 6 MONTHS AND 16 DAYS' SERVICE FOR TRANSFER PURPOSES (20 YEARS, 3 MONTHS, 15 DAYS' ACTIVE SERVICE). THE RECORD SHOWS FURTHER THAT YOU HAVE RECEIVED RETIRED PAY FROM SEPTEMBER 1, 1958, TO JUNE 30, 1960, AT THE MONTHLY RATE OF $219.10 BASED UPON THE RANK OF LIEUTENANT (JG) WITH OVER 18 YEARS' SERVICE FOR LONGEVITY AND OVER 20 YEARS' SERVICE FOR PERCENTAGE MULTIPLE PURPOSES UNDER SECTION 511 (B) OF THE CAREER COMPENSATION ACT OF 1949. THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, HAS REPORTED THAT YOU WERE ADVANCED ON THE RETIRED LIST TO THE RANK OF LIEUTENANT (JG) EFFECTIVE FROM THE DATE OF YOUR RETIREMENT AND THAT YOUR SERVICE FOR TRANSFER TO THE FLEET RESERVE WAS RECOMPUTED ON APRIL 17, 1962, TO CREDIT SERVICE ON A CONSTRUCTIVE BASIS IN ACCORDANCE WITH 10 U.S.C. 6330, AND 38 COMP. GEN. 110.

IT IS APPARENT THAT YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM IS BASED ON THE PREMISE THAT THE DECISION OF THE COURT IN WHITE V. UNITED STATES, 121 CT.CL. 1, AND OUR DECISION OF AUGUST 5, 1958, 38 COMP. GEN. 110, SUPPORT YOUR CONTENTION THAT, AS SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 STATES THAT FOR ALL PURPOSES OF THAT ACT AN ENLISTMENT TERMINATED WITHIN THREE MONTHS PRIOR TO THE EXPIRATION OF THE TERM OF SUCH ENLISTMENT SHALL BE COUNTED AS A FULL TERM OF SERVICE FOR WHICH ENLISTED, YOUR RETAINER PAY FOR THE PERIOD MARCH 4 TO SEPTEMBER 30, 1949, SHOULD HAVE BEEN COMPUTED ON THE BASIS OF OVER 21 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES INSTEAD OF ONLY 20 YEARS OF SERVICE AND THAT YOUR RETIRED PAY FOR THE PERIOD FROM SEPTEMBER 1, 1958, TO JUNE 30, 1960, SHOULD BE COMPUTED ON THE BASIS OF 21 YEARS OF SERVICE FOR PERCENTAGE MULTIPLE PURPOSES UNDER THE SPECIFIC DEFINITION OF "ACTIVE SERVICE" CONTAINED IN SECTION 511 OF THE 1949 ACT.

YOUR PRESENT REQUEST FOR RECONSIDERATION OF YOUR CLAIM IS STATED TOBE BASED UPON DECISION B-135771, DATED AUGUST 5, 1958, AND JULY 14, 1959, 38 COMP. GEN. 110, AND 39 COMP. GEN. 20, RESPECTIVELY. YOUR REFERENCE TO OUR DECISION AT 39 COMP. GEN. 20 INDICATES THAT IT IS YOUR CONTENTION THAT A CORRECTION OF THE NAVAL RECORDS IN YOUR CASE MAKES THE PROVISIONS OF THE BARRING ACT INAPPLICABLE TO YOUR CLAIM FOR THE PERIOD MARCH 4 TO SEPTEMBER 30, 1949.

NOTHING IN THE HOLDING OF THE COURT OF CLAIMS IN THE WHITE OR JOHNSON CASES OR OUR DECISION AT 38 COMP. GEN. 110 SUPPORTS THE CONCLUSION THAT CONSTRUCTIVE SERVICE RESULTING FROM MINORITY OR SHORT TERM ENLISTMENTS CAN BE INCLUDED IN DETERMINING THE RATE OF BASE AND LONGEVITY PAY UNDER THE PAY READJUSTMENT ACT OF 1942 OR BASIC PAY UNDER THE CAREER COMPENSATION ACT OF 1949 FOR THE PURPOSE OF COMPUTING RETAINER OR RETIRED PAY.

INSOFAR AS CONSTRUCTIVE SERVICE AUTHORIZED BY SECTION 202 OF THE NAVAL RESERVE ACT OF 1938 IS CONCERNED, THE NAVAL RESERVE ACT, AS AMENDED, REFERS ONLY TO LENGTH OF SERVICE FOR TRANSFER TO THE FLEET RESERVE, RETIREMENT, AND FOR COMPUTING THE PERCENTAGE MULTIPLE FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE FORMULA THERE PRESCRIBED; IT CONTAINS NO AUTHORITY FOR CREDITING SUCH CONSTRUCTIVE SERVICE TIME FOR COMPUTING PAY BASED ON LENGTH OF SERVICE IN THE BASIC PAY FACTOR OR IN THE PERCENTAGE MULTIPLE FACTOR WHERE THE RETAINER OR RETIRED PAY IS COMPUTED UNDER THE PROVISIONS OF FORMULA (B) OF SECTION 511 OF THE CAREER COMPENSATION ACT.

ACCORDINGLY, THE DISALLOWANCE OF OCTOBER 31, 1962, OF YOUR CLAIM FOR THE PERIOD SEPTEMBER 1, 1958, TO JUNE 30, 1960, IN YOUR CASE WAS PROPER AND MUST BE SUSTAINED.

RESPECTING YOUR CLAIM FOR THE PERIOD MARCH 4 THROUGH SEPTEMBER 30, 1949, OUR CLAIMS DIVISION HAS BEEN ADVISED TO MAKE PAYMENT FOR THIS PERIOD IF OTHERWISE PROPER ON THE BASIS OF OUR HOLDING IN 38 COMP. GEN. 110 AND THE PRINCIPLE SET FORTH IN THE CASE OF SHAIL FREDERICK WHITE V. UNITED STATES, 121 CT.CL. 1, AND OUR DECISION AT 39 COMP. GEN. 20.