B-139275, FEBRUARY 18, 1960, 39 COMP. GEN. 592

B-139275, FEBRUARY 18, 1960, 39 COMP. GEN. 592

MILITARY PERSONNEL - RETIRED PAY - SERVICE CREDITS - CADET, MIDSHIPMAN SERVICE - PERSON NOT IN SERVICE ON JUNE 10, 1922 - JALBERT CASE THE HOLDING IN JALBERT V. UNITED STATES, C.1CLS. NO. 297-58, WHICH PERMITTED CREDIT FOR RETIRED PAY PURPOSES FOR CADET SERVICE UNDER AN APPOINTMENT TO THE MILITARY ACADEMY MADE PRIOR TO AUGUST 24, 1912, AND FOR MIDSHIPMAN SERVICE UNDER AN APPOINTMENT TO THE NAVAL ACADEMY MADE PRIOR TO MARCH 4, 1913, NOTWITHSTANDING THAT THE PERSON CONCERNED WAS NOT "IN THE SERVICE" ON JUNE 10, 1922--- THE DATE OF APPROVAL OF THE JOINT SERVICE PAY ACT--- WHICH PRESERVED CADET AND MIDSHIPMAN SERVICE TO THOSE PERSONS WHO HAD ACQUIRED THE RIGHT PRIOR TO JUNE 10, 1922, WILL BE FOLLOWED IN THE SETTLEMENT OF SIMILAR CLAIMS.

TO EMERY AND WOOD, FEBRUARY 18, 1960:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1959, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF COLONEL CURTIS H. NANCE, AUS, RETIRED, FOR INCREASED RETIRED PAY PREDICATED ON SERVICE AS A CADET AT THE UNITED STATES MILITARY ACADEMY, AND ALSO THE MATTER OF THE INDEBTEDNESS OF COLONEL NANCE TO THE UNITED STATES ARISING FROM AN OVERPAYMENT OF RETIRED PAY BY THE INCLUSION OF CADET SERVICE IN THE COMPUTATION OF RETIRED PAY.

THE DISALLOWANCE OF THE CLAIM AND THE DETERMINATION OF THE INDEBTEDNESS BY OUR CLAIMS DIVISION SETTLEMENT DATED JULY 13, 1959, WERE SUSTAINED IN OUR DECISION DATED OCTOBER 9, 1959, B-139275. AT THAT TIME YOU HAD REFERRED TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JALBERT V. UNITED STATES, C.CLS. NO. 297-58, DECIDED JULY 15, 1959, WHEREIN IT WAS HELD THAT THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 625, 627, 37 U.S.C. 232, PRESERVED THE RIGHT TO CREDIT MILITARY ACADEMY CADET SERVICE UNDER AN APPOINTMENT MADE PRIOR TO AUGUST 24, 1912, AND NAVAL ACADEMY MIDSHIPMAN SERVICE UNDER AN APPOINTMENT MADE PRIOR TO MARCH 4, 1913, TO EVERYONE WHO HAD ACQUIRED THAT RIGHT PRIOR TO THE EFFECTIVE DATE OF THE ACT OF JUNE 10, 1922, EVEN THOUGH THE PERSON CONCERNED WAS NOT "IN THE SERVICE" ON THE LATTER DATE. IN OUR DECISION WE ADVISED THAT:

FINAL JUDGMENT HAS NOT BEEN ENTERED IN THE JALBERT CASE AND UNTIL IT HAS BEEN DETERMINED THAT NO FURTHER ACTION BY THE GOVERNMENT IN THAT CASE, IT COULD NOT FORM A PRECEDENT FOR HANDLING OTHER CASES. IN THIS CONNECTION, IT MAY BE STATED THAT THE MAJORITY DECISION IN THE JALBERT CASE IS NOT IN AGREEMENT WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF HILTON V. UNITED STATES, 99 C.1CLS. 386, WHICH WAS NOT CITED, MODIFIED OR OVERRULED.

IN YOUR PRESENT LETTER YOU CITE THE FURTHER DECISION DATED NOVEMBER 4, 1959, OF A MAJORITY OF THE COURT OF CLAIMS IN THE JALBERT CASE HOLDING THAT TO THE EXTENT THAT THERE WAS ANY CONFLICT BETWEEN THE HILTON AND JALBERT DECISIONS, THE HILTON DECISION WAS DIRECTLY OVERRULED.

IN THE CIRCUMSTANCES, AND SINCE IT APPEARS THAT NO FURTHER ACTION WILL BE TAKEN BY THE GOVERNMENT ON THE MATTER, COLONEL NANCE'S CLAIM WILL BE SETTLED ON THE BASIS OF THE HOLDING IN THE JALBERT CASE. UNDER THAT HOLDING, IT IS CONCLUDED THAT NO OVERPAYMENTS OF RETIRED PAY HAVE BEEN MADE TO HIM.

ACCORDINGLY, COLONEL NANCE'S CLAIM IS BEING REFERRED TO OUR CLAIMS DIVISION FOR RECOMPUTATION OF HIS RETIRED PAY COMMENCING JANUARY 1, 1959. A SETTLEMENT WILL BE STATED IN HIS FAVOR FOR THE AMOUNT FOUND DUE, INCLUDING ANY AMOUNTS WHICH HAVE BEEN DEDUCTED FROM HIS RETIRED PAY TO REPAY THE GOVERNMENT FOR SUPPOSED OVERPAYMENTS MADE BEFORE THAT DATE.