B-133496, NOV. 15, 1957

B-133496, NOV. 15, 1957

TO MR. ROBERT F. KLEPINGER, ATTORNEY AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF JULY 22, 1957, YOUR REQUEST, AS ATTORNEY FOR COLONEL LLOYD S. SPOONER, U.S. ARMY, RETIRED, THAT WE RECONSIDER AND REVIEW THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 23, 1954, DISALLOWING HIS CLAIM FOR ADDITIONAL RETIRED PAY, EFFECTIVE FROM OCTOBER 1, 1949, UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, AS AMENDED. YOUR REQUEST IS BASED ON THE HOLDING IN THE DECISION RENDERED JULY 12, 1957, BY THE COURT OF CLAIMS IN THE CASE OF WILLIS A. HEDDEN V. UNITED STATES, C.CLS. NO. 156-55.

OUR VIEW RESPECTING THE SCOPE OF THE COURT'S DECISION IN THE HEDDEN CASE WAS EXPLAINED IN OUR DECISION TO YOU, B-119312, OCTOBER 14, 1957, ON THE CLAIM OF MAJOR PRICE W. BEEBE, U.S. ARMY, RETIRED. YOUR ATTENTION WAS DIRECTED TO THE FACT THAT UNDER THE COURT'S DECISION OF JULY 12, 1957, THE PLAINTIFF, HEDDEN, WAS ALLOWED TO INCLUDE, FOR THE PURPOSE OF DETERMINING THE "ACTIVE SERVICE" FACTOR TO BE USED IN COMPUTING HIS RETIRED PAY UNDER METHOD (B), SECTION 511 OF THE 1949 LAW, ONLY THAT PORTION OF HIS NATIONAL GUARD SERVICE PRIOR TO JUNE 3, 1916, WHICH REPRESENTED THE THREE TEN-DAY PERIODS OF ACTIVE-DUTY TRAINING THAT HE PERFORMED UNDER AUTHORITY OF THE DICK ACT OF 1903. YOUR ATTENTION ALSO WAS DIRECTED TO THE FACT THAT NO PART OF HEDDEN'S INACTIVE NATIONAL GUARD SERVICE WAS INCLUDED OR AUTHORIZED BY THE COURT TO BE INCLUDED IN DETERMINING THE "ACTIVE SERVICE" FACTOR FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY IN THE MANNER PRESCRIBED IN METHOD (B) OF SECTION 511.

IN THE INSTANT CASE COLONEL SPOONER HAS OVER 30 CUMULATIVE YEARS OF SERVICE CREDITABLE IN DETERMINING THE RATE OF HIS MONTHLY BASIC PAY FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER METHOD (B), SECTION 511, CAREER COMPENSATION ACT OF 1949. HIS "ACTIVE SERVICE" FACTOR "27" IS BASED ON 27 YEARS, 2 MONTHS, AND 4 DAYS' ACTIVE SERVICE. UNDER THE RULE OF THE HEDDEN DECISION OF JULY 12, 1957, AND USING THE FORMULA PRESCRIBED IN METHOD (B) OF SECTION 511, COLONEL SPOONER IS ENTITLED TO RECEIVE RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, AT THE RATE OF 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF A COLONEL WITH OVER 30 CUMULATIVE YEARS OF SERVICE TIMES 27 (REPRESENTING HIS ACTIVE SERVICE FACTOR).

IT DOES NOT APPEAR FROM YOUR LETTER OF JULY 22, 1957, THAT COLONEL SPOONER HAS HAD ANY PERIOD OF ACTIVE SERVICE IN THE NATIONAL GUARD WHICH, IF ADDED TO THE AMOUNT OF ACTIVE SERVICE NOW BEING CREDITED TO HIM, WOULD ENTITLE HIM TO USE AN "ACTIVE SERVICE" FACTOR GREATER THAN 27 IN THE COMPUTATION OF HIS RETIRED PAY UNDER METHOD (B) OF SECTION 511.

ALSO, IT FURTHER APPEARS THAT THE AMOUNT OF RETIRED PAY THAT WOULD ACCRUE TO COLONEL SPOONER COMPUTED UNDER METHOD (B), SECTION 511, IS NO GREATER THAN THE AMOUNT OF RETIRED PAY WHICH HE IS ENTITLED TO RECEIVE AND WHICH HE HAS BEEN PAID EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED ON THE BASIS AUTHORIZED IN TITLE IV, CAREER COMPENSATION ACT OF 1949, PURSUANT TO AN ELECTION MADE BY HIM ON THE AUTHORITY OF SECTION 411 OF THAT ACT, 63 STAT. 823.

ACCORDINGLY, THE DISALLOWANCE OF COLONEL SPOONER'S CLAIM IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 23, 1954, IS SUSTAINED.