B-136459, SEP. 28, 1959

B-136459, SEP. 28, 1959

TO MR. GEORGE H. FOSTER, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1959, AND ENCLOSURE, WHEREIN, ON BEHALF OF THE WIDOW AND EXECUTRIX OF THE ESTATE OF MR. MORRIS WATMAN, DECEASED, YOU IN EFFECT REQUEST RECONSIDERATION OF THE CONCLUSIONS REACHED IN OUR DECISION OF SEPTEMBER 25, 1958, B-136459, SUSTAINING THE DISALLOWANCE OF MR. WATMAN'S CLAIM FOR RETIRED PAY AS A MAJOR, ARMY OF THE UNITED STATES, DURING THE PERIOD JULY 1, 1947, TO DECEMBER 31, 1956.

WHILE AT THE TIME OUR DECISION OF SEPTEMBER 25, 1958, TO MR. WATMAN WAS RENDERED THE RECORD BEFORE US DID NOT DISCLOSE THAT THE OFFICER HAD BEEN APPOINTED AS A MEMBER OF THE OFFICER'S RESERVE CORPS IN 1946, IT IS OUR VIEW THAT SUCH APPOINTMENT IS NOT MATERIAL, SINCE HE WAS NOT ENTITLED TO RECEIVE RETIRED PAY ON ACCOUNT OF SERVICE AS A RESERVE OFFICER. AT THE TIME HE WAS COMMISSIONED IN THE OFFICERS' RESERVE CORPS HE WAS SERVING ON ACTIVE DUTY AS AN OFFICER IN THE ARMY OF THE UNITED STATES AND NOT AS A RESERVE OFFICER AND HE WAS RETIRED AS AN OFFICER OF THE ARMY OF THE UNITED STATES. THE LETTER OF APPOINTMENT AS A RESERVE OFFICER DATED AUGUST 8, 1946, SPECIFICALLY PROVIDED THAT THE OFFICER "WILL NOT PERFORM THE DUTIES OF AN OFFICER UNDER THIS APPOINTMENT UNTIL SPECIFICALLY SO DIRECTED BY COMPETENT ORDERS.' WE FIND NO BASIS FOR SUBSTANTIALLY DISTINGUISHING IN PRINCIPLE THE PRESENT CLAIM FROM THAT INVOLVED IN THE CASE OF LEONARD V. UNITED STATES, 136 C.CLS. 686, WHICH THE COURT DECIDED IN FAVOR OF THE GOVERNMENT, AND THEREFORE WE MAY NOT FAVORABLY CONSIDER THE CLAIM OF THE DECEASED OFFICER'S WIDOW AND EXECUTRIX.