B-123210, JUN. 17, 1958

B-123210, JUN. 17, 1958

TO MR. HENRY J. WHITE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1958, STATING THAT YOU WERE RETIRED FROM THE UNITED STATES NAVY ON AUGUST 28, 1945, BY REASON OF PHYSICAL DISABILITY AND THAT, UNDER THE TRAVIS DECISION AND A MORE RECENT DECISION BY THE COMPTROLLER GENERAL OF THE UNITED STATES, YOU UNDERSTAND THAT YOU ARE ENTITLED TO COUNT YOUR YEARS AT THE UNITED STATES NAVAL ACADEMY FOR LONGEVITY PAY PURPOSES. UNDER DATE OF JULY 1, 1955, OUR CLAIMS DIVISION CERTIFIED FOR PAYMENT TO YOU THE SUM OF $30,592.49 AS RETROACTIVE RETIRED PAY FOR THE PERIOD AUGUST 28, 1945, THROUGH JUNE 30, 1953, AND THE FURTHER SUM OF $1,882.80 AS INCREASED RETIRED PAY FOR THE PERIOD JULY 1, 1953, THROUGH APRIL 30, 1954. YOU NOW REQUEST THAT A RECOMPUTATION BE MADE OF THE AMOUNT DUE TO INCLUDE YOUR SERVICE AT THE NAVAL ACADEMY FOR LONGEVITY PAY PURPOSES AND THAT THE RESULTING INCREASE BE ALLOWED YOU BEGINNING AUGUST 28, 1945.

IN THE CASE OF TRAVIS V. UNITED STATES, 137 C.CLS. 148, DECIDED DECEMBER 5, 1956, THE PLAINTIFF HAD SERVED AS A CADET IN THE UNITED STATES MILITARY ACADEMY FROM JUNE 14, 1918, TO JUNE 15, 1920, AND AS AN OFFICER FROM JULY 2, 1920, TO FEBRUARY 24, 1925, ON ACTIVE DUTY IN THE REGULAR ARMY, BEING RETIRED ON THE LATTER DATE BY REASON OF SERVICE INCURRED DISABILITY. REMAINED ON THE DISABILITY RETIRED LIST FOR 16 YEARS, 10 MONTHS AND 20 DAYS. ON JANUARY 15, 1942, HE WAS RECALLED TO ACTIVE DUTY. ON APRIL 9, 1946, HE BECAME ADDITIONALLY DISABLED, AND THE COURT SAID THAT ON JUNE 18, 1947, HE WAS "RE RETIRED" BY REASON OF THE ADDITIONAL DISABILITY INCURRED. AT THAT TIME HE HAD 10 YEARS AND 27 DAYS OF ACTIVE-DUTY SERVICE TO HIS CREDIT AND 16 YEARS, 10 MONTHS AND 20 DAYS ON THE RETIRED LIST, MAKING A TOTAL OF INACTIVE AND ACTIVE SERVICE OF 26 YEARS, 11 MONTHS AND 17 DAYS, NOT INCLUDING THE TWO YEARS SPENT AS A CADET IN THE UNITED STATES MILITARY ACADEMY.

IN THAT DECISION THE COURT GAVE CONSIDERATION TO A PROVISION IN THE ARMY APPROPRIATION ACT OF AUGUST 24, 1912, 37 STAT. 569, 594, AS FOLLOWS:

"SEC. 6. THAT HEREAFTER THE SERVICE OF A CADET WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES MILITARY ACADEMY OR TO THE NAVAL ACADEMY SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER OF THE ARMY.'

THE COURT HELD THAT, ALTHOUGH TIME SPENT AS A CADET IN THE UNITED STATES MILITARY ACADEMY MAY NOT BE COUNTED IN COMPUTING LENGTH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942. IN HOLDING IN FAVOR OF THE PLAINTIFF, THE COURT STATED THAT---

"* * * PLAINTIFF'S RECOVERY WILL BE FOR THE AMOUNT OF THE DIFFERENCE BETWEEN THE RETIRED PAY HE RECEIVED, WHICH WAS COMPUTED ON THE BASIS OF 75 PERCENT OF THE BASE PAY OF A LIEUTENANT COLONEL INCREASED BY 15 PERCENT FOR OVER 10 YEARS OF ACTIVE DUTY SERVICE, AND THE RETIRED PAY HE SHOULD HAVE RECEIVED COMPUTED ON THE BASIS OF 75 PERCENT OF THE BASE PAY FOR A FULL COLONEL INCREASED BY 40 PERCENT LONGEVITY FOR OVER 26 YEARS OF ACTIVE AND INACTIVE SERVICE (NOT INCLUDING THE TWO YEARS HE SPENT AS A CADET).

HENCE, IT WILL BE SEEN THAT THE HOLDING BY THE COURT OF CLAIMS IN THE TRAVIS CASE PROVIDES NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. IT IS NOTED THAT YOU DID NOT IDENTIFY THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES WHICH YOU INDICATED SUPPORTS YOUR CLAIM IN THIS CASE.

BY LETTER OF AUGUST 4, 1954, THE CHIEF OF NAVAL PERSONNEL REPORTED YOUR TOTAL NAVAL AND MILITARY SERVICE AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

THE NAVAL APPROPRIATION ACT OF MARCH 4, 1913, 37 STAT. 891, PROVIDED:

"HEREAFTER THE SERVICE OF A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, OR THAT OF A CADET AT THE UNITED STATES MILITARY ACADEMY, WHO MAY HEREAFTER BE APPOINTED TO THE UNITED STATES NAVAL ACADEMY, OR TO THE UNITED STATES MILITARY ACADEMY, SHALL NOT BE COUNTED IN COMPUTING FOR ANY PURPOSE THE LENGTH OF SERVICE OF ANY OFFICER IN THE NAVY OR IN THE MARINE CORPS.'

SINCE YOU PERFORMED SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY UNDER AN APPOINTMENT MADE PRIOR TO MARCH 4, 1913, THE PROHIBITION CONTAINED IN THE QUOTED PROVISION IS NOT APPLICABLE TO YOUR CASE. THERE ARE, HOWEVER, OTHER PROVISIONS OF LAW WHICH APPEAR TO BAR THE ALLOWANCE OF YOUR CLAIM.

IT APPEARS FROM THE REPORT OF THE CHIEF OF NAVAL PERSONNEL THAT IN ADDITION TO YOUR SERVICE AS A MIDSHIPMAN FROM JULY 6, 1912, TO JUNE 2, 1916, YOU HAD ACTIVE SERVICE IN THE REGULAR NAVY FROM JUNE 3, 1916, TO OCTOBER 11, 1920. UNDER DATE OF MAY 20, 1922, YOU WERE COMMISSIONED IN A RESERVE COMPONENT OF THE ARMED SERVICES AND HELD SUCH COMMISSION THROUGH MAY 12, 1927, BUT YOU HAD NO ACTIVE SERVICE UNDER SUCH COMMISSION. APRIL 17, 1930, YOU WERE COMMISSIONED IN THE UNITED STATES NAVAL RESERVE AND CONTINUED TO HOLD YOUR COMMISSION TO NOVEMBER 1, 1952, WHEN YOU WERE TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST. DURING THE PERIOD YOU HELD A COMMISSION IN THE NAVAL RESERVE YOU HAD DUTY FOR TRAINING FROM JUNE 15TO 28, 1940, AND ACTIVE DUTY FROM SEPTEMBER 23, 1940, TO AUGUST 27, 1945, WHEN YOU WERE RELEASED TO INACTIVE DUTY, HAVING BEEN FOUND NOT PHYSICALLY QUALIFIED FOR ACTIVE DUTY.

IN CONNECTION WITH YOUR CLAIM THERE ARE FOR CONSIDERATION THE FOLLOWING PROVISIONS FROM SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627:

"FOR OFFICERS APPOINTED ON AND AFTER JULY 1, 1922, NO SERVICE SHALL BE COUNTED FOR PURPOSES OF PAY EXCEPT ACTIVE COMMISSIONED SERVICE UNDER A FEDERAL APPOINTMENT AND COMMISSIONED SERVICE IN THE NATIONAL GUARD WHEN CALLED OUT BY ORDER OF THE PRESIDENT. FOR OFFICERS IN THE SERVICE ON JUNE 30, 1922, THERE SHALL BE INCLUDED IN THE COMPUTATION ALL SERVICE WHICH IS NOW COUNTED IN COMPUTING LONGEVITY PAY * * *.'

UNDER THAT PROVISION AN OFFICER IN THE SERVICE ON JUNE 30, 1922, WHO HAD BEEN APPOINTED AS A MIDSHIPMAN TO THE NAVAL ACADEMY PRIOR TO MARCH 4, 1913, COULD COUNT ACADEMY SERVICE FOR LONGEVITY PAY PURPOSES. THE RIGHT OF OFFICERS "IN THE SERVICE ON JUNE 30, 1922," TO COUNT ACADEMY SERVICE FOR LONGEVITY PAY PURPOSES WAS SAVED TO THEM BY SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AND BY SECTION 202 (A) (6) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 808. THERE IS NO PROVISION OF LAW OTHER THAN THE ABOVE QUOTED PROVISION OF THE 1922 ACT, THAT OFFICERS IN THE SERVICE ON JUNE 30, 1922, SHOULD BE CREDITED WITH ALL SERVICE THEN COUNTED IN COMPUTING LONGEVITY PAY, WHICH AUTHORIZES COUNTING ACADEMY SERVICE FOR LONGEVITY PAY PURPOSES. SINCE ONLY SUCH OFFICERS CAN COUNT ACADEMY SERVICE FOR LONGEVITY PAY PURPOSES, THE QUESTION IS WHETHER YOU WERE IN THE SERVICE ON JUNE 30, 1922, WITHIN THE MEANING OF THAT PROVISION OF LAW.

IN THE CASE OF HILTON V. UNITED STATES, 99 C.CLS. 386, THE COURT HELD THAT AN OFFICER IN THE COAST GUARD WHO ON JUNE 30, 1922, WAS AN OFFICER IN THE UNITED STATES NAVAL RESERVE FORCE CREATED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 587, WAS NOT AN OFFICER OF THE UNITED STATES NAVY "IN THE SERVICE ON JUNE 30, 1922" WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISIONS OF THE ACT OF JUNE 10, 1922, AND ACCORDINGLY WAS NOT ENTITLED TO INCLUDE HIS SERVICE IN THE NAVAL ACADEMY IN COMPUTING HIS LONGEVITY PAY. THE COURT EXPRESSED THE VIEW ALSO THAT UNDER THE 1916 ACT ONE WHO ENROLLED IN THE NAVAL RESERVE WAS NOT IN THE NAVAL SERVICE AND THAT BY HIS ENROLLMENT HE HAD DONE NO MORE THAN OBLIGATE HIMSELF TO SERVE WHEN CALLED UPON IN WAR OR IN A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT. APPEARS THAT THIS HOLDING OF THE COURT OF CLAIMS IS APPLICABLE TO YOUR INACTIVE SERVICE FROM MAY 20, 1922, TO MAY 12, 1927, DURING WHICH YOU HELD A COMMISSION IN THE ARMY AVIATION CORPS RESERVE. ALSO, IN THE CASE OF LEONARD V. UNITED STATES, 64 C.CLS. 384, 389, AFFIRMED BY THE SUPREME COURT, 279 U.S. 40, THE COURT STATED THAT THE LANGUAGE IN SECTION 1 OF THE ACT OF JUNE 10, 1922, RELATING TO "OFFICERS IN THE SERVICE ON JUNE 30, 1922," HAS REFERENCE TO OFFICERS ON THE ACTIVE LIST.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR INCREASED RETIRED PAY.