B-198685 L/M, MAY 27, 1980

B-198685 L/M, MAY 27, 1980

ATTENTION: SARA V. GREENBERG, ESQ. COMMERCIAL LITIGATION BRANCH SUBJECT: RUTH E. WEBSTER V. UNITED STATES COURT OF CLAIMS NO. 187-80C (FILE REFERENCE AD:DMC:SV GREENBERG: JJ 154-187-80C)

ALICE DANIEL, DEPARTMENT OF JUSTICE:

PLAINTIFF, A RETIRED LIEUTENANT COLONEL OF THE U. S. ARMY RESERVE, SEEKS TO RECOVER ALL RETIRED PAY WHICH WAS WITHHELD FROM HER BY THE U. S. ARMY AS A RESULT OF HER ACQUIRING FOREIGN CITIZENSHIP. PLAINTIFF ALSO SEEKS TO HAVE HER ENTITLEMENT TO RETIRED PAY REINSTATED.

THE PORTION OF PLAINTIFF'S CLAIM COVERING THE PERIOD JANUARY 26, 1978 - OCTOBER 31, 1978, WAS THE SUBJECT OF A REQUEST FOR WAIVER CONSIDERATION UNDER 10 U.S.C. 2774, TO OUR CLAIMS DIVISION ON OCTOBER 1, 1979. SETTLEMENT CERTIFICATE NO. Z-2818281-121, DECEMBER 28, 1979 (COPY ENCLOSED) OUR CLAIMS DIVISION WAIVED RECOVERY OF PLAINTIFF'S INDEBTEDNESS TO THE UNITED STATES RESULTING FROM THE PAYMENT OF RETIRED PAY DURING THE ABOVE PERIOD. THUS, PLAINTIFF'S CLAIM IS MOOT WITH REGARD TO THE TIME PERIOD BEFORE OCTOBER 31, 1978. ENCLOSED ARE COPIES OF DOCUMENTS RELATING TO THAT DETERMINATION.

WITH REGARD TO THE RETIRED PAY RECEIVED BY A RETIRED RESERVE OFFICER WE HAVE HELD THAT THE RECEIPT OF SUCH PAY IS BASED UPON HIS STATUS IN AN ARMED FORCE AS A MEMBER OF THAT ORGANIZATION AND LOSS OF THAT STATUS WOULD TERMINATE A PERSON'S RIGHT TO RETIRED PAY. SEE 41 COMP.GEN. 715, 717 (1962) (COPY ENCLOSED). BASED UPON THIS PREMISE OUR VIEW HAS BEEN THAT RETIRED RESERVE OFFICERS WHO RECEIVE RETIRED PAY BY VIRTUE OF THEIR CONTINUING MILITARY STATUS LOSE THEIR ENTITLEMENT TO RETIRED PAY UPON THE LOSS OF THEIR UNITED STATES CITIZENSHIP. THE THEORY IS THAT ACCEPTANCE OF FOREIGN CITIZENSHIP WHICH RESULTS IN THE LOSS OF UNITED STATES CITIZENSHIP WOULD BE INCONSISTENT WITH THEIR OATH AS RESERVE OFFICERS AND REPUGNANT TO A CONTINUATION OF THEIR STATUS AS OFFICERS IN A RESERVE ORGANIZATION, READY, STANDBY OR RETIRED. SEE 41 COMP.GEN. 715, 717.

THEREFORE, THE ISSUE TO BE DECIDED IS WHETHER PLAINTIFF LOST HER UNITED STATES CITIZENSHIP BY BECOMING A CITIZEN OF AUSTRALIA. IN A SITUATION INVOLVING A RETIRED REGULAR ARMY OFFICER WHO WAS CONSIDERED TO BE A DUAL ISRAELI/UNITED STATES CITIZEN WE HELD THAT DUAL CITIZENSHIP ALONE DOES NOT REQUIRE LOSS OF ENTITLEMENT TO RETIREMENT PAY. SEE LIEUTENANT COLONEL THOMAS E. SNYDER, USA, RETIRED, 58 COMP.GEN. 566 (1979), (COPY ENCLOSED). FOR CASES INVOLVING A PERSON'S CONSTITUTIONAL RIGHT TO REMAIN A U. S. CITIZEN AND THE GOVERNMENT'S BURDEN OF PROOF IN ESTABLISHING THAT A PERSON HAS VOLUNTARILY RELINQUISHED THIS RIGHT SEE: AFROYIM V. RUSK, 387 U.S. 253 (1967); TERRAZAS V. VANCE, 577 F.2D 7 (7TH CIR. 1978); UNITED STATES V. MATHESON, 532 F.2D 809 (2D CIR. 1976); PETER V. SECRETARY OF STATE, 347 F. SUPP. 1035 (D.D.C. 1972); AND JOLLEY V. IMMIGRATION AND NATURALIZATION SERVICE, 441 F.2D 1245 (5TH CIR. 1971).

IN ADDITION, PLAINTIFF ALSO CONTENDS THAT IN ACQUIRING AUSTRALIAN CITIZENSHIP SHE RELIED UPON A LETTER TO HER FROM THE DEPARTMENT OF THE ARMY ADVISING HER THAT THE ACQUISITION OF AUSTRALIAN CITIZENSHIP WOULD NOT AFFECT HER RETIRED PAY. IN THIS REGARD WE SHOULD POINT OUT THAT IT IS A WELL-SETTLED RULE OF LAW THAT THE GOVERNMENT CANNOT BE BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OR STATEMENTS OF ITS OFFICERS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE FEDERAL CROP INSURANCE CORP. V. MERRILL, 332 U.S. 380 (1947) AND DUNPHY V. UNITED STATES 208 CT.CL. 986 (1975) AND CASES CITED THEREIN.

NO RECORD HAS BEEN FOUND OF ANY CLAIM OR DEMAND WHICH WOULD FURNISH THE BASIS FOR A CROSS ACTION AGAINST THE PLAINTIFF IN THIS CASE.

IF I MAY BE OF FURTHER ASSISTANCE PLEASE CONTACT ME AT TELEPHONE NUMBER, 275-5422.