B-159076, JUN. 17, 1966

B-159076, JUN. 17, 1966

TO MR. FRED W. SHIELDS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1966, REQUESTING RECONSIDERATION OF THE CLAIM OF JAMES EUGENE NEWELL, GMGC, USN (RETIRED), FOR INCREASED RETIRED PAY, WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 21, 1966.

THE RECORD INDICATES THAT MR. NEWELL WAS ENLISTED IN THE REGULAR NAVY FROM MARCH 14, 1935, TO APRIL 28, 1939, A PERIOD OF 4 YEARS, 1 MONTH, AND 15 DAYS; FROM JUNE 19, 1939, TO JUNE 22, 1943, A PERIOD OF 4 YEARS AND 4 DAYS; FROM JUNE 23, 1943, TO JUNE 22, 1947, A PERIOD OF 4 YEARS; FROM JUNE 23, 1947, TO MAY 24, 1951, A PERIOD OF 3 YEARS, 11 MONTHS, AND 2 DAYS; AND FROM MAY 25, 1951, TO NOVEMBER 15, 1954, A PERIOD OF 3 YEARS, 5 MONTHS, AND 21 DAYS. HE WAS TRANSFERRED TO THE FLEET RESERVE WITH RETAINER PAY EFFECTIVE NOVEMBER 16, 1954. FROM NOVEMBER 17, 1936, TO JANUARY 19, 1937, A PERIOD OF 2 MONTHS AND 3 DAYS, HE WAS ABSENT FROM DUTY ON ACCOUNT OF INJURY, SICKNESS OR DISEASE RESULTING FROM HIS OWN MISCONDUCT.

IT APPEARS THAT AT THE TIME OF TRANSFER TO THE FLEET RESERVE THE NAVY CREDITED HIM WITH 4 YEARS, 1 MONTH, AND 15 DAYS IN HIS FIRST ENLISTMENT, WITHOUT DEDUCTION ON ACCOUNT OF THE "SKMC" ABSENCE OF 2 MONTHS AND 3 DAYS FROM NOVEMBER 17, 1936, TO JANUARY 19, 1937, AND WITH ONLY 3 YEARS, 11 MONTHS, AND 2 DAYS FOR THE ENLISTMENT BEGINNING IN 1947, WITHOUT CREDIT FOR 28 DAYS CONSTRUCTIVE TIME TO WHICH HE WAS ENTITLED BECAUSE OF HIS EARLY DISCHARGE IN 1951. IN OTHER WORDS, AT THAT TIME HE WAS CREDITED WITH A TOTAL OF 19 YEARS, 6 MONTHS, AND 12 DAYS FOR TRANSFER PURPOSES.

YOU SAY THAT MR. NEWELL WAS CREDITED WITH 20 YEARS' SERVICE FOR TRANSFER PURPOSES FOR MORE THAN 10 YEARS, BUT THAT RECENTLY THE NAVY FINANCE CENTER HAS TAKEN THE POSITION THAT HE IS ENTITLED TO CREDIT FOR ONLY 19 YEARS RATHER THAN 20 YEARS ACTIVE NAVAL SERVICE IN THE COMPUTATION OF HIS RETIRED PAY. YOU SUGGEST THAT THE NAVY ACTED ERRONEOUSLY SINCE, IN YOUR VIEW, EVEN IF CREDIT IS WITHHELD FOR THE PERIOD NOVEMBER 17, 1936, TO JANUARY 19, 1937, WHEN HE WAS ABSENT FROM DUTY BECAUSE OF INJURY, SICKNESS, OR DISEASE RESULTING FROM HIS OWN MISCONDUCT (UNDER THE ACT OF AUGUST 29, 1916, CH. 417, 39 STAT. 580, AS AMENDED, 34 U.S.C. 183, 1952 ED.), HIS RETIRED PAY SHOULD BE COMPUTED ON THE PAY OF AN ENLISTED MAN WITH OVER 20 YEARS OF SERVICE IF PROPER CREDIT IS GIVEN FOR CONSTRUCTIVE SERVICE. WHILE YOU SAY THAT HIS ENTIRE SERVICE AMOUNTS TO 19 YEARS, 4 MONTHS, AND 8 DAYS COMPUTED ON A DAY-FOR-DAY BASIS AND 19 YEARS, 4 MONTHS, AND 12 DAYS WHEN GIVEN CREDIT FOR HIS CONSTRUCTIVE SERVICE (LESS TIME LOST ON ACCOUNT OF MISCONDUCT), IT IS NOT KNOWN HOW YOU ARRIVE AT SUCH CONCLUSIONS SINCE IT APPEARS THAT THE CREDITING OF 4 FULL YEARS FOR EACH OF THE PERIODS MARCH 14, 1935, TO APRIL 28, 1939, AND JUNE 23, 1947 TO MAY 24, 1951, LEAVES HIM WITH LESS THAN 19 1/2 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES. COMPUTED ON THAT BASIS HIS CREDITABLE SERVICE IN THE BASIC PAY FACTOR IS AS FOLLOWS:

TABLE

YEARS MONTHS DAYS

MARCH 14, 1935, TO APRIL 28, 1939 4 0 0

JUNE 19, 1939, TO JUNE 22, 1943 4 0 4

JUNE 23, 1943, TO JUNE 22, 1947 4 0 0

JUNE 23, 1947, TO MAY 24, 1951 4 0 0

MAY 25, 1951, TO NOVEMBER 15, 1954 3 5 21

TOTAL CREDITABLE SERVICE 19 5 25

ACCORDINGLY, MR. NEWELL IS NOT ENTITLED TO CREDIT FOR 20 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES IN THE BASIC PAY FACTOR IN THE COMPUTATION OF HIS RETIRED PAY. THE SETTLEMENT OF APRIL 21, 1966, WAS CORRECT AND THEREFORE IS SUSTAINED.