B-133847, NOV. 18, 1957

B-133847, NOV. 18, 1957

TO MR. FRANCIS MARION COOLEY:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 10, 1957, FROM KING AND KING, YOUR ATTORNEYS, REQUESTING REVIEW OF OUR ACTION IN DISALLOWING A PART OF YOUR CLAIM FOR INCREASED RETIRED PAY FROM DECEMBER 14, 1945, TO APRIL 28, 1949.

IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY ON MARCH 14, 1933, WITH THE RATING OF ELECTRICIAN'S MATE, FIRST CLASS, SERVICE FOR TRANSFER PURPOSES OF 16 YEARS, 3 MONTHS, 3 DAYS, AND ACTUAL SERVICE OF 16 YEARS AND 7 DAYS. IT FURTHER APPEARS THAT YOU WERE RECALLED TO ACTIVE DUTY MAY 14, 1941, AND RELEASED FROM ACTIVE DUTY OCTOBER 14, 941; THAT YOU WERE PLACED ON THE RETIRED LIST DECEMBER 1, 1941; AND THAT YOU WERE AGAIN RECALLED TO ACTIVE DUTY MARCH 27, 1942, AND RELEASED FROM ACTIVE DUTY DECEMBER 13, 1945, WITH THE RATING OF CHIEF ELECTRICIAN (TEMPORARY) AND WITH TOTAL ACTIVE SERVICE BEFORE AND AFTER TRANSFER TO THE FLEET RESERVE OF 20 YEARS, 1 MONTH, 25 DAYS. ALSO, IT APPEARS THAT ON APRIL 23, 1946--- UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34, U.S.C. 350I--- YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE AND RANK OF CHIEF ELECTRICIAN, WITH THE RIGHT TO RETIRED PAY OF THAT GRADE FROM DECEMBER 14, 1945, THE DAY FOLLOWING THE DATE OF YOUR RELEASE FROM ACTIVE DUTY. THE RECORD INDICATES THAT YOU WERE PAID RETIRED PAY AS A CHIEF ELECTRICIAN WITH 16 YEARS' SERVICE (ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS THERETO) FOR THE PERIOD DECEMBER 14, 1945, TO OCTOBER 31, 1946.

IT APPEARS THAT FROM MARCH 18, 1946, TO DECEMBER 26, 1946, YOU WERE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY AT THE RATE OF $2,870.40 PER YEAR. ON OCTOBER 28, 1946, IN 26 COMP. GEN. 271, WE HELD THAT RETIRED ENLISTED MEN ENTITLED TO THE PAY OF THEIR TEMPORARY COMMISSIONED RANKS UNDER THE ABOVE ACT OF JULY 24, 1941, AS AMENDED, WERE IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE INTENT AND PURPOSE OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, AND HENCE WERE SUBJECT TO THE DUAL COMPENSATION RESTRICTION OF $3,000 PER YEAR IMPOSED BY THAT SECTION.

SECTIONS 1 AND 2 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505, 34 U.S.C. 993A, 993B, PROVIDED:

"THAT NO ENLISTED MAN OR WARRANT OFFICER APPOINTED OR ADVANCED TO TEMPORARY COMMISSIONED RANK OR GRADE UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941 (55 STAT. 603), AS AMENDED BY THE ACT OF FEBRUARY 21, 1946 (PUBLIC LAW 305, SEVENTY-NINTH CONGRESS, 60 STAT. 26), WHOSE RETIRED PAY WAS COMPUTED AS AUTHORIZED IN SECTION 8 OF THE ACT OF JULY 24, 1941 (55 STAT. 604), AS AMENDED BY SECTION 5 OF THE ACT OF AUGUST 10, 1946 (PUBLIC LAW 720, SEVENTY-NINTH CONGRESS, 60 STAT. 995), OR SECTION 10 OF THE SAID 1941 ACT (55 STAT. 605), AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946 (60 STAT. 28), SHALL BE SUBJECT TO ANY RETROACTIVE CHECK AGE FOR RETIRED PAY RECEIVED FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER FOR ANY PERIOD PRIOR TO NOVEMBER 1, 1946, IN CONTRAVENTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 406), AS AMENDED (5 U.S.C. 9A): PROVIDED, THAT NO DISALLOWANCES IN THE ACCOUNTS OF DISBURSING OFFICERS SHALL BE MADE FOR ANY SUCH PAYMENTS MADE PRIOR TO NOVEMBER 1, 1946, IN CONTRAVENTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 406), AS AMENDED.

"SEC. 2. ENLISTED MEN AND WARRANT OFFICERS APPOINTED OR ADVANCED TO COMMISSIONED RANK OR GRADE UNDER THE SAID ACT OF JULY 24, 1941, AS AMENDED, WHOSE RETIRED PAY, COMPUTED AS AUTHORIZED BY THAT ACT AS AMENDED, WAS WITHHELD OR CHECKED IN WHOLE OR IN PART FOR ANY PERIOD PRIOR TO NOVEMBER 1, 1946, AS BEING IN CONTRAVENTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SHALL BE ENTITLED TO RECEIVE SUCH RETIRED PAY AS SO COMPUTED THROUGH OCTOBER 31, 1946, THE PROVISIONS OF SAID SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, NOTWITHSTANDING.'

THE PAYMENTS TO YOU OF RETIRED PAY AS A CHIEF WARRANT OFFICER AND PAYMENTS TO YOU OF CIVILIAN COMPENSATION, ALTHOUGH THE COMBINED ANNUAL RATE WAS MORE THAN $3,000, WERE VALIDATED BY THE ABOVE ACT FOR THE PERIOD MARCH 18, 1946, TO OCTOBER 31, 1946.

FROM NOVEMBER 1, 1946, TO DECEMBER 26, 1946, THE TERMINATION DATE OF YOUR CIVILIAN EMPLOYMENT, YOU WERE PAID RETIRED PAY AT THE RATE OF $10.80 PER MONTH ($129.60 PER YEAR) WHICH, WHEN COMBINED WITH YOUR CIVILIAN COMPENSATION AT THE RATE OF $2,870.40, AGGREGATED $3,000 PER YEAR.

IN SANDERS V. UNITED STATES, 120 C.CLS. 501, IT WAS HELD THAT A MAN TRANSFERRED TO THE FLEET RESERVE WITH OVER 16 AND LESS THAN 20 YEARS' SERVICE, WHO SUBSEQUENTLY PERFORMED SUFFICIENT ACTIVE DUTY TO GIVE HIM A TOTAL OF MORE THAN 20 YEARS' ACTIVE SERVICE BEFORE AND AFTER SUCH TRANSFER, WAS ENTITLED, FROM DATE OF RELEASE FROM ACTIVE DUTY AFTER TRANSFER, TO RETAINER OR RETIRED PAY ON THE BASIS OF 20 YEARS' SERVICE (ONE-HALF BASE PAY PLUS PERMANENT ADDITIONS THERETO).

ON APRIL 29, 1955, YOU FILED SUIT IN THE COURT OF CLAIMS (HAROLD BUDLINGTON ET AL. V. UNITED STATES, C.CLS. NO. 176-55) FOR ADJUSTMENT OF YOUR RETIRED PAY ON THE BASIS OF THE SANDERS DECISION. ON JULY 12, 1957, JUDGMENT WAS ENTERED IN YOUR FAVOR FOR THE PERIOD BEGINNING APRIL 29, 1949, IN THE AMOUNT OF $1,203.20. THAT AMOUNT WAS ALLOWED BY US IN SETTLEMENT DATED AUGUST 14, 1957.

ALSO, ON MAY 12, 1955, YOU FILED CLAIM WITH US FOR ADJUSTMENT OF YOUR RETIRED PAY ON THE SANDERS BASIS, FOR THE PERIOD DECEMBER 14, 1945, TO APRIL 29 (28), 1949. BY SETTLEMENT APPROVED BY US ON AUGUST 12, 1957, YOUR CLAIM WAS ALLOWED FOR THE PERIODS DECEMBER 14, 1945, TO MARCH 17, 1946, AND DECEMBER 27, 1946, TO APRIL 28, 1949. THE PERIOD OF YOUR CLAIM FROM MARCH 18 TO DECEMBER 26, 1946, WHICH COINCIDES WITH THE PERIOD OF YOUR CIVILIAN EMPLOYMENT BY THE GOVERNMENT, WAS DISALLOWED ON THE BASIS THAT NO ADJUSTMENT IN YOUR RETIRED PAY WAS AUTHORIZED.

YOU MAINTAIN THAT FOR THE PERIOD MARCH 18 TO OCTOBER 31, 1946, YOU ARE ENTITLED, UNDER THE ACT OF JUNE 19, 1948, SUPRA, TO ADDITIONAL RETIRED PAY AS A CHIEF WARRANT OFFICER, NOTWITHSTANDING THE PROVISIONS OF THE ECONOMY ACT OF 1932. ALSO, YOU MAINTAIN THAT FOR THE PERIOD NOVEMBER 1 TO DECEMBER 26, 1946, YOU ARE ENTITLED TO SUCH ADDITIONAL PAY, DESPITE THE 1932 ACT, UNDER THE HOLDING IN TATO V. UNITED STATES, C.CLS. NO. 139-54, DECIDED NOVEMBER 7, 1956.

IT APPEARS THAT YOU ARE ENTITLED TO THE ADDITIONAL PAY CLAIMED FOR THE PERIOD MARCH 18 TO OCTOBER 31, 1956, AND SETTLEMENT WILL ISSUE ACCORDINGLY.

IN THE TATO CASE IT WAS HELD THAT A NAVY COMMISSIONED WARRANT OFFICER (YOUR RANK ON THE RETIRED LIST) IS NOT A COMMISSIONED OFFICER WITHIN THE INTENT AND PURPOSE OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED. WE DO NOT AGREE WITH THE HOLDING IN THE TATO CASE AND IT IS OUR UNDERSTANDING THAT THE ISSUE INVOLVED IN THAT CASE WILL BE LITIGATED IN ANOTHER CASE IN THE COURT OF CLAIMS. ACCORDINGLY, WE MAY NOT APPLY THE PRINCIPLE OF THE TATO CASE TO YOUR CLAIM, AND THE DISALLOWANCE OF THE PORTION OF THAT CLAIM COVERING THE PERIOD NOVEMBER 1 TO DECEMBER 26, 1946, IS SUSTAINED.

IN THE LETTER OF SEPTEMBER 10, 1957, YOUR ATTORNEYS REQUEST PERMISSION TO NEGOTIATE THE CHECK ISSUED PURSUANT TO OUR SETTLEMENT OF AUGUST 12, 1957, WITHOUT PREJUDICE TO FURTHER CONSIDERATION OF THE ITEMS DISALLOWED BY THAT SETTLEMENT. THE CHECK ISSUED PURSUANT TO THE ORIGINAL SETTLEMENT, COVERING THE PERIODS DECEMBER 14, 1945, TO MARCH 17, 1946, AND DECEMBER 27, 1946, TO APRIL 28, 1949, TOGETHER WITH THE CHECK WHICH WILL ISSUE PURSUANT TO THE SUPPLEMENTAL SETTLEMENT, COVERING THE PERIOD MARCH 18 TO OCTOBER 31, 1946, MAY BE NEGOTIATED WITHOUT PREJUDICE TO FURTHER CONSIDERATION OF THE DIFFERENT PORTION OF YOUR CLAIM COVERING THE PERIOD NOVEMBER 1 TO DECEMBER 26, 1946.