Humphrey v. United States

145 F. Supp. 743, 136 Ct. Cl. 660, 1956 U.S. Ct. Cl. LEXIS 141

• Court: United States Court of Claims
• Decided: November 7, 1956
• Docket: No. 407-52
• Status: Published

Opinions

Laramore, Judge,

delivered the opinion of the court:

Plaintiff seeks a recomputation of retainer and retirement pay paid him since his transfer to the Fleet Eeserve on January 23,1946.

The questions presented are: (1) whether in respect to the period of time between August 10,1946, and October 1,1949,¹ plaintiff may now nullify a voluntary election made pursuant to section 9 of the Act of August 10,1946,60 Stat. 993,997, to receive retainer pay under the provisions of law in effect immediately prior to the date of enactment of that act, and (2) whether, in respect to the period of time since October 1, 1949, plaintiff has been paid retainer pay properly computed in accordance with section 511 of the Career Compensation Act of 1949,63 Stat. 829.

Plaintiff first enlisted in the United States Navy on October 16, 1925, and served a minority enlistment until October 18, 1928. He reenlisted on January 5, 1929, and served through successive terms of enlistment until he was transferred to the Fleet Eeserve on January 23, 1946. On such date he had completed 20 years 11 months and 15 days total naval service for transfer purposes. Of this amount, 1 year and 2 days represents constructive credit for time not served in a minority enlistment, but based on 3 years’ and 2 days’ service under said minority enlistment.

In accordance with section 204 of the Naval Eeserve Act of 1938, 52 Stat. 1175, 1179, he was paid retainer pay at the rate of one-half the base pay he was receiving at the time of his transfer. Section 204 provides as follows:

Men serving in the Eegular Navy on the date of the passage of this Act, who first enlisted in the Navy after July 1,1925, or who reenlisted therein after July 1,1925, having been out of the Eegular Navy for more than three months, and men who first enlist in the Eegular Navy after the passage of this Act, may upon their own request be transferred to the Fleet Eeserve upon the completion of at least twenty years’ naval service: Provided, That they are physically and otherwise qualified to perform duty in time of war. After such transfer, except when on active duty, they shall be paid at the rate of one-half of the base pay they are receiving at the time of transfer: Provided further, That all enlisted men transferred to the Fleet Eeserve in accordance with the provisions of Sections 1 and 203 of this Act shall, upon completion of thirty years’ service, be transferred to the retired list of the Eegular Navy, with the pay they were then legally entitled to receive and the allowances to which enlisted men of the Eegular Navy are entitled on retirement after thirty years’ service: And provided further, That all enlisted men transferred to the Fleet Eeserve in accordance with the provisions of-this section shall, upon completion of thirty years’ service, be transferred to the retired list of the Eegular Navy, with the pay they were then legally entitled to receive, plus all permanent additions thereto, and the allowances to which enlisted men of the Eegular Navy are entitled on retirement after thirty years’ service.

With the amendment of the Naval Eeserve Act of 1938 by the Act of August 10, 1946, supra, a new method of computation of retainer pay was established. This method entitled plaintiff to elect to receive as retainer pay a sum arrived at by multiplying his years of active Federal service by two and one-half percent of his base and longevity pay. Under the provisions of this act plaintiff conld elect to continue to receive retainer pay in accordance with the provisions of law in effect immediately prior to the date of enactment of said Act of August 10, 1946, supra. Section 204 of the above amending act provides:

Members of the Navy who first enlisted in the Navy after July 1, 1925, or who reenlisted therein after July 1, 1925, having been out of the Regular Navy for more than three months, may upon their own request be transferred to the Fleet Keserve upon the completion of at least twenty years’ active Federal service. After such transfer, except when on active duty, they shall be paid at the annual rate of 2y2 per centum of the annual base and longevity pay they are receiving at the time of transfer multiplied by the number of years of active Federal service: Provided, That the pay authorized in this section shall be increased 10 per centum for all men who may be credited with extraordinary heroism in the line of duty: Provided further, That the determination of the Secretary of the Navy as to the definition of extraordinary heroism shall be final and conclusive for all purposes: Provided further, That the pay authorized in this section shall not exceed 75 per centum of the active-duty base and longevity pay they were receiving at the time of transfer: Provided further, That all enlisted men transferred to the Fleet Keserve in accordance with the provisions of this section and of sections 1 and 203 of this Act shall, upon completion of thirty years’ service, be transferred to the retired list of the Regular Navy, with the pay they were then legally entitled to receive: Provided further, That nothing contained within this section shall be construed to prevent persons who qualify for transfer to the Fleet Keserve under- the provisions of section 203 of this Act from being transferred in accordance with the provisions of this section if they so elect: Provided further, That a fractional year of six months or more shall be considered a full year for purposes of this section and section 203 in computing-years of active Federal service and base and longevity pay: And provided further, That the provisions of this section shall apply to all persons of the class described herein heretofore or hereafter transferred to the Fleet Keserve, except that no increase in pay or allowances shall be deemed to have accrued prior to the date of the enactment of this amendment. For the purposes of this section, all active service in the Army of the United States, the Navy, the Marine Corps, the Coast Guard, or any component thereof, shall be deemed to be active Federal service.

Section 9 of the Act of August 10,1946, supra, provides:

No back pay for any period prior to the date of enactment of this Act shall accrue to any person by reason of the enactment of this Act except as otherwise provided in section 3. No person, active or retired, of any of the armed forces, shall suffer, by reason of this Act, any reduction in any pay, allowances, or compensation to which he was entitled upon the effective date of this Act. Retired enlisted personnel of the Navy and Marine Corps, personnel of the Navy and Marine Corps who are members of the Fleet Reserve or Fleet Marine Corps Reserve, and personnel of the Navy and Marine Corps who become eligible and who apply for transfer to the Fleet Reserve or Fleet Marine Corps Reserve shall receive an opportunity to elect to receive retainer and retired pay under the provisions of this Act or to receive such pay under the provisions of law in effect immediately prior to the date of the enactment of this Act, and these persons shall be entitled to receive the pay elected.

As shown by defendant’s exhibit 1, plaintiff elected “to continue to receive retainer and retired pay as it is now being computed under the provisions of Public Law 732, 75th Congress.” (Naval Reserve Act of 1938, 52 Stat. 1175.) Plaintiff continued to receive his retainer pay pursuant to that act. A new pay law, the Career Compensation Act of 1949, supra, was enacted effective October 1, 1949. Under section 511 of that act plaintiff was entitled to (a) continue to receive the retainer pay which he was receiving on the date of enactment of that law, or (b) receive retainer pay equal to two and one-half percent of the monthly basic pay multiplied by the number of years of active service creditable to him, whichever was greater. Since the enactment of the above act, plaintiff has been paid pursuant thereto.

Thus it can be seen that plaintiff’s retainer pay has been correctly computed under the provisions of the acts of 1938, 1946, and 1949, supra.

The remaining question is whether or not plaintiff is bound by his election as provided in section 9 of the 1946 act.

His reasons for such an election are perhaps immaterial and, of course, are not a part of this record. However, it can readily be seen that even though under his election he would receive less pay at the time, his pay would be materially increased after 30 years of service.

Plaintiff in his reply brief argues that he was not completely and correctly advised of his rights and amounts to which he would be entitled; that he mistakenly elected and should not be bound thereby. The short answer to this contention is that not until the pay raise under the Career Compensation Act of 1949, supra, did anything appear which in the slightest degree would make plaintiff’s election seem disadvantageous. XJp to the time of enactment of the 1949 act plaintiff’s election would appear to be the wise one. It was not until after passage of this act that plaintiff’s election appeared unwise. Therefore, plaintiff’s complaint now seems to stem from hindsight rather than mistake.

There is no allegation or the slightest suggestion in the petition that plaintiff was misled. Nor do the facts show that plaintiff relied on erroneous information furnished by defendant. The petition contains only the allegation that plaintiff’s claim is made under and based upon the Naval Eeserve Act of 1938, supra, as amended by the Act of August 10,1946, supra. The main brief of plaintiff in support thereof is grounded solely on the meaning of the words “active Federal service.” Plaintiff cites the case of Shail Frederick White v. United States, 121 C. Cls. 1. This case, however, is not in point. In that case White elected to avail himself of a new method of computation provided by the Act of August 10,1946, and was wrongfully denied that right, even though clearly entitled to it. In the case at bar, plaintiff was granted the right of election and elected to continue under a prior law. Thus, in the light of plaintiff’s voluntary election, the meaning of the words “active Federal service” is unimportant.

Therefore, we must conclude that plaintiff voluntarily elected, is bound thereby, and has been properly paid in accordance with his election.

Plaintiff’s motion for summary judgment is denied. Defendant’s motion for summary judgment is granted, and the petition is dismissed.

It is so ordered.

Whitaker, Judge; and Jones, Chief Judge, concur.

1 Plaintiff, in Ms reply brief, concedes be is not entitled to recover increased retainer or retired pay for any period prior to tbe enactment of the Act of August 10, 1946.