B-131700, OCTOBER 20, 1960, 40 COMP. GEN. 222
Highlights
THAT THE CAREER INCENTIVE ACT OF 1955 DID NOT TERMINATE THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1. - TO CHANGE THE METHOD OF COMPUTING RETIRED PAY SO AS TO RECEIVE THE ADVANTAGE OF THE MORE FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CLAIMS. 1960: REFERENCE IS MADE TO OUR DECISION OF JULY 17. THERETOFORE HAD TO HAVE THEIR RETIRED PAY COMPUTED BY THE MOST FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949. WAS TERMINATED EFFECTIVE APRIL 1. SUCH MEMBERS WERE RESTRICTED TO THE METHOD UNDER WHICH THEY HAD BEEN PAID ON MARCH 31.
B-131700, OCTOBER 20, 1960, 40 COMP. GEN. 222
MILITARY PERSONNEL - PAY - RETIRED - ELECTION OF PAY COMPUTATION METHOD MOST FAVORABLE FORMULA - GOVER CASE THE HOLDING IN LOUIS E. FAGAN, ET AL. ( LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.1CL. NO. 535-57, DECIDED MAY 4, 1960, THAT THE CAREER INCENTIVE ACT OF 1955 DID NOT TERMINATE THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949--- EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949--- TO CHANGE THE METHOD OF COMPUTING RETIRED PAY SO AS TO RECEIVE THE ADVANTAGE OF THE MORE FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CLAIMS. COMP. GEN. 31, MODIFIED.
TO THE SECRETARY OF DEFENSE, OCTOBER 20, 1960:
REFERENCE IS MADE TO OUR DECISION OF JULY 17, 1957, 37 COMP. GEN. 31, WHEREIN WE CONSIDERED SEVERAL QUESTIONS INVOLVING THE COMPUTATION OF RETIRED PAY OF MEMBERS OF THE UNIFORMED SERVICES. WE HELD (PAGE 34, ANSWER TO QUESTION 5) THAT THE RIGHT MEMBERS RETIRED PRIOR TO OCTOBER 1, 1949, THERETOFORE HAD TO HAVE THEIR RETIRED PAY COMPUTED BY THE MOST FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, 37 U.S.C. 311, INCLUDING THE RIGHT TO CHANGE FROM ONE METHOD TO THE OTHER, WAS TERMINATED EFFECTIVE APRIL 1, 1955, BY THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, 37 U.S.C. 232, AND THAT ON AND AFTER APRIL 1, 1955, SUCH MEMBERS WERE RESTRICTED TO THE METHOD UNDER WHICH THEY HAD BEEN PAID ON MARCH 31, 1955.
IN LOUIS E. FAGAN, ET AL. ( LEWIS L. GOVER, PLAINTIFF NO. 2) V. UNITED STATES, CT.1CL. NO. 535-57, DECIDED MAY 4, 1960, IT WAS HELD, CONTRARY TO THE ABOVE DECISION AND TO THE RESULT REACHED BY THE COURT IN ADAMS, ET AL. V. UNITED STATES, CT.1CL. NO. 50339, DECIDED JULY 13, 1959, THAT THE CAREER INCENTIVE ACT OF 1955 DID NOT TERMINATE THE RIGHT TO CHANGE THE METHOD OF COMPUTING RETIRED PAY SO AS TO RECEIVE THE ADVANTAGE OF THE MOST FAVORABLE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949.
WHILE WE HAVE SOME DOUBT THAT THE COURT'S CONCLUSION IN THE GOVER CASE REFLECTS THE INTENT OF THE CONGRESS, THE COURT HAS CONSIDERED THE MATTER AT SOME LENGTH AND IT IS MOST UNLIKELY THAT IT WOULD NOT ADHERE TO THE POSITION THERE TAKEN, IN ANY SIMILAR CASE BROUGHT BEFORE IT. ACCORDINGLY, WE HAVE DECIDED TO FOLLOW THE COURT'S HOLDING IN THE GOVER CASE AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF PAYMENTS IN SIMILAR CASES.
THE DECISION OF JULY 17, 1957, 37 COMP. GEN. 31, IS MODIFIED ACCORDINGLY.