B-143197, MAR. 17, 1966

B-143197, MAR. 17, 1966

TO MR. WALTER E. MOSES:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1966, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES AFTER YOU WERE RELEASED FROM ACTIVE DUTY EFFECTIVE MARCH 28, 1946, WHILE SERVING AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES.

IT APPEARS THAT IN 1945 AN ARMY RETIRING BOARD DETERMINED THAT YOU WERE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE AND THAT SUCH INCAPACITY WAS AN INCIDENT OF SERVICE, BUT THAT SUCH DETERMINATION WAS DISAPPROVED BY THE SECRETARY OF WAR IN JUNE 1946 FOR THE REASON THAT THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH YOUR DISABILITY. IN MAY 1960 YOU FILED A PETITION IN THE COURT OF CLAIMS TO RECOVER DISABILITY RETIREMENT PAY FROM AND AFTER DECEMBER 18, 1945, ON THE GROUND THAT THE ADMINISTRATIVE ACTION OF THE SECRETARY OF WAR IN 1946 AND OF THE ARMY DISABILITY REVIEW BOARD IN 1957 IN DENYING YOU DISABILITY RETIRED PAY WAS ARBITRARY AND CAPRICIOUS. THE GOVERNMENT OPPOSED YOUR 1960 PETITION ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD RUN AND SUCH PETITION WAS DISMISSED IN MARCH 1964 ON YOUR OWN MOTION. BY LETTER DATED SEPTEMBER 9, 1964, YOUR CLAIM FOR RETIRED PAY WAS DENIED BY OUR CLAIMS DIVISION FOR THE REASON THAT THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF RETIRED PAY IN THE ABSENCE OF PROPER RETIREMENT ORDERS.

BY LETTER DATED SEPTEMBER 30, 1964, YOU THEN ASSERTED CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FROM AND AFTER MARCH 28, 1946, ON THE GROUND THAT YOU HAD NEVER BEEN LEGALLY RELEASED FROM ACTIVE DUTY. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 6, 1965, FOR THE REASON THAT YOU HAD BEEN RELEASED FROM ACTIVE DUTY EFFECTIVE MARCH 28, 1946, AND HAD NEVER THEREAFTER BEEN RECALLED TO ACTIVE DUTY. YOUR REQUEST FOR RECONSIDERATION OF THAT ACTION WAS DENIED IN OUR DECISION OF MARCH 15, 1965, B-143197, FOR THE REASONS THAT THE CONTINUANCE OR DISCONTINUANCE OF THE ACTIVE DUTY STATUS OF OFFICERS OF THE ARMY IS A MATTER WITHIN THE DISCRETION OF THE SECRETARY OF THE ARMY AND YOU WERE NOT RECALLED TO ACTIVE DUTY AFTER HAVING BEEN RELEASED THEREFROM EFFECTIVE MARCH 28, 1946.

THEREUPON YOU FILED A PETITION IN THE COURT OF CLAIMS ON APRIL 28, 1965, FOR ACTIVE DUTY PAY AND ALLOWANCES FROM AND AFTER MARCH 28, 1946, ON THE GROUND THAT YOUR RELEASE FROM ACTIVE DUTY AS OF THAT DATE WAS NULL AND VOID AND THAT, IN THE ABSENCE OF LAWFUL ORDERS LATER RELEASING YOU FROM ACTIVE DUTY, YOU CONTINUED ON ACTIVE DUTY INDEFINITELY WITH ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES. ON NOVEMBER 19, 1965, THE COURT OF CLAIMS DISMISSED YOUR PETITION AND ENTERED SUMMARY JUDGMENT FOR THE GOVERNMENT ON THE BASIS OF THE DECISION BY THAT COURT IN MERRIOTT V. UNITED STATES, 163 CT.CL. 261 (1963). YOUR MOTION FOR REHEARING FILED DECEMBER 13, 1965, WAS DENIED BY THE COURT ON FEBRUARY 18, 1966. WHEN SUCH JUDGMENT BECOMES FINAL THE MATTER WILL BE GOVERNED BY 28 U.S.C. 2519, WHICH PROVIDES:

"A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

ACCORDINGLY, THIS OFFICE IS WITHOUT AUTHORITY TO GIVE FURTHER CONSIDERATION TO YOUR CLAIM. THE COPIES OF THE COURT PAPERS ENCLOSED WITH YOUR LETTER ARE RETURNED AS REQUESTED.