B-124847, DECEMBER 26, 1957, 37 COMP. GEN. 439
Highlights
- IS CREDITABLE FOR INCREASED RETAINER AND RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938. IS A TENABLE ONE AND WILL BE FOLLOWED AS PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS INSTEAD OF THE HOLDING THAT ONLY ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT WAS CREDITABLE UNDER SECTION 208. 26 COMP. THIS HOLDING WAS AFFIRMED IN 32 COMP. - WAS CREDITABLE UNDER SECTION 208 OF THAT ACT. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE DECISION OF THE COURT OF CLAIMS IN THE GRISSING CASE. IN VIEW OF SUCH INFORMATION AND SINCE THE CONCLUSION REACHED IN THE COURT'S OPINION IN THAT CASE IS NOT AN UNTENABLE ONE.
B-124847, DECEMBER 26, 1957, 37 COMP. GEN. 439
MILITARY PERSONNEL - PAY - RETIRED - FLEET RESERVE - ACTIVE DUTY AFTER TRANSFER - GRISSING CASE THE CONCLUSION IN THE GRISSING CASE, WILLIAM SEBASTIAN EBINGER ET AL. V. UNITED STATES, C.1CLS. NO. 49615, DECIDED OCTOBER 9, 1957, THAT ALL ACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT TO JULY 1, 1925--- EXCEPT PEACETIME ACTIVE DUTY OF NOT MORE THAN TWO MONTHS IN EACH FOUR-YEAR PERIOD--- IS CREDITABLE FOR INCREASED RETAINER AND RETIRED PAY UNDER SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854G, IS A TENABLE ONE AND WILL BE FOLLOWED AS PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS INSTEAD OF THE HOLDING THAT ONLY ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT WAS CREDITABLE UNDER SECTION 208. 26 COMP. GEN. 804, 32 ID. 159, MODIFIED; 35 COMP. GEN. 339, OVERRULED.
TO THE SECRETARY OF THE NAVY, DECEMBER 26, 1957:
IN OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, ANSWER TO QUESTION (1), WE HELD THAT SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. 854G, (PROVIDING INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE) AUTHORIZED CREDIT ONLY FOR SUCH ACTIVE DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT. THIS HOLDING WAS AFFIRMED IN 32 COMP. GEN. 159, ANSWER TO QUESTION 2, AND IN 35 COMP. GEN. 339.
IN THE RECENT CASE OF WILLIAM SEBASTIAN EBINGER ET AL. ( HENRY GRISSING, PLAINTIFF NO. 79) V. UNITED STATES, C.1CLS. NO. 49615, DECIDED OCTOBER 9, 1957, THE COURT HELD THAT ALL ACTIVE DUTY PERFORMED SUBSEQUENT TO TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT TO JULY 1, 1925--- EXCEPT PEACETIME ACTIVE DUTY OF NOT MORE THAN TWO MONTHS IN EACH FOUR-YEAR PERIOD REQUIRED BY SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 34 U.S.C. 854E--- WAS CREDITABLE UNDER SECTION 208 OF THAT ACT.
WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT NO FURTHER PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE DECISION OF THE COURT OF CLAIMS IN THE GRISSING CASE. IN VIEW OF SUCH INFORMATION AND SINCE THE CONCLUSION REACHED IN THE COURT'S OPINION IN THAT CASE IS NOT AN UNTENABLE ONE, WE WILL FOLLOW THE COURT'S DECISION OF OCTOBER 9, 1957, AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS. THE HOLDINGS TO THE CONTRARY IN OUR THREE DECISIONS REFERRED TO ABOVE WILL NO LONGER BE FOLLOWED.