B-154118, JUL. 23, 1964

B-154118, JUL. 23, 1964

TO MR. ROBERT F. KLEPINGER:

WE HAVE YOUR LETTER OF JULY 10, 1964, CONCERNING THE CLAIMS OF CERTAIN RETIRED OFFICERS OF THE ARMED FORCES WHICH WERE TRANSMITTED HERE BY YOU WITH YOUR LETTER OF APRIL 15, 1964. SUCH CLAIMS ARE FOR ADDITIONAL RETIRED PAY BELIEVED DUE EACH OFFICER CONCERNED DURING THE PERIOD JUNE 1, 1958, TO SEPTEMBER 30, 1963, INCLUSIVE.

THE CLAIM OF BRIGADIER GENERAL CHARLES I. MURRAY, U.S. MARINE CORPS, RETIRED, WAS DISALLOWED IN SETTLEMENT DATED APRIL 28, 1964. BY LETTER OF APRIL 29, 1964, YOU REQUESTED RECONSIDERATION OF THAT ACTION BUT, BEFORE THIS OFFICE COULD REVIEW THE MATTER, THERE WAS FILED BY YOU IN THE COURT OF CLAIMS ON MAY 28, 1964, PETITION NO. 163-64, IN THE CASE OF CHARLES L. ANDREWS, JR., ET AL. V. UNITED STATES. GENERAL MURRAY, AS PLAINTIFF NO. 13 ON THE PETITION JUST MENTIONED, TOGETHER WITH 20 OTHER PLAINTIFFS THEREON, IS SEEKING JUDGMENT FOR INCREASED RETIRED PAY FOR THE SAME PERIOD COVERED BY THE CLAIMS WHICH YOU HAVE PRESENTED TO THIS OFFICE. YOU WERE ADVISED IN OUR LETTER OF JUNE 25, 1964, B 154118, THAT NO FURTHER ACTION ON THE CLAIM OF GENERAL MURRAY WOULD BE TAKEN BY THIS OFFICE UNTIL THE CONCLUSION OF THE JUDICIAL PROCEEDINGS NOW PENDING IN THE COURT OF CLAIMS.

THE RECORD SHOWS THAT SIMILAR ACTION HAS BEEN TAKEN BY OUR CLAIMS DIVISION IN LETTERS DATED JUNE 30, 1964 (LETTER OF JULY 8, 1964, IN THE CASE OF COLONEL RAY H. LEWIS, U.S. ARMY, RETIRED), WITH RESPECT TO EACH OF THE OTHER CLAIMANTS COVERED BY YOUR LETTER OF APRIL 15, 1964, AS WELL AS IN THE CASE OF LIEUTENANT GENERAL GEORGE GRUNERT, U.S. ARMY, RETIRED, FORWARDED HERE WITH YOUR LETTER OF MAY 20, 1964. CONSEQUENTLY, THE STATEMENT IN YOUR LETTER OF JULY 10, 1964, THAT THIS OFFICE HAS NOT ACKNOWLEDGED RECEIPT OF THE CLAIMS OF THESE OFFICERS IS NOT UNDERSTOOD, PARTICULARLY SINCE IN ANOTHER LETTER OF THAT SAME DATE, JULY 10, 1964, ADDRESSED DIRECTLY TO OUR CLAIMS DIVISION, YOU ACKNOWLEDGE RECEIPT OF THE CLAIMS DIVISION LETTERS OF JUNE 30, 1964, AND JULY 8, 1964.

YOUR LETTER OF JULY 10, 1964, SEEMS TO BE DIRECTED PRIMARILY TO THE MATTER OF ASCERTAINING THE REASONS WHY THIS OFFICE DID NOT COMPLY WITH THE REQUEST PRESENTED IN YOUR LETTER OF APRIL 15, 1964, AND REPEATED IN YOUR LETTER OF APRIL 29, 1964, TO TRANSMIT THESE CLAIMS TO THE UNITED STATES COURT OF CLAIMS FOR TRIAL AND ADJUDICATION THERE UNDER THE AUTHORITY VESTED IN THE COMPTROLLER GENERAL OF THE UNITED STATES BY THE PROVISIONS OF 28 U.S.C. 2510, WHICH ARE AS OLLOWS:

"THE COMPTROLLER GENERAL MAY TRANSMIT TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION ANY CLAIM OR MATTER OF WHICH THE COURT OF CLAIMS MIGHT TAKE JURISDICTION ON THE VOLUNTARY ACTION OF THE CLAIMANT, TOGETHER WITH ALL VOUCHERS, PAPERS, DOCUMENTS, AND PROOFS PERTAINING THERETO.

"THE COURT OF CLAIMS SHALL PROCEED WITH THE CLAIMS OR MATTERS SO REFERRED AS IN OTHER CASES PENDING IN SUCH COURT AND SHALL RENDER JUDGMENT THEREON.'

THE TENOR OF YOUR STATEMENTS WITH RESPECT TO THE ABOVE-QUOTED STATUTORY PROVISIONS WOULD INDICATE A BELIEF ON YOUR PART THAT THE STATUTE IS MANDATORY. SUCH IS NOT THE CASE. THE LAW CLEARLY PROVIDES THAT THE COMPTROLLER GENERAL "MAY TRANSMIT, ETC.' AND THE LEGISLATIVE HISTORY DISPELS ANY DOUBT THAT THE LAW WAS INTENDED TO BE DISCRETIONARY AND NOT MANDATORY. THE PROVISIONS OF 28 U.S.C. 2510 MERELY AUTHORIZE THE COMPTROLLER GENERAL IN HIS DISCRETION TO TRANSMIT THE RECORD ON ANY CLAIM TO THE UNITED STATES COURT OF CLAIMS LEAVING THE CLAIMANT TO PROVE HIS CASE IN THAT FORUM.

THESE PROVISIONS OF LAW HAVE BEEN REGARDED BY US AS BEING FOR APPLICATION ONLY IN THOSE INSTANCES WHERE THERE ARE CONFLICTING CLAIMANTS TO A CERTAIN AND SPECIFIC SUM OF MONEY CLEARLY DUE IN CONTROL OF THE GOVERNMENT AS STAKEHOLDER, THE ADJUDICATION OF WHICH BY THE COURT OF CLAIMS IS DEEMED ESSENTIAL TO PROTECT THE GOVERNMENT AGAINST THE UNSUCCESSFUL CLAIMANTS, OR IN CASES WHERE ALTHOUGH THE RIGHT OF THE CLAIMANT IS DEFINITELY AND CLEARLY ESTABLISHED UNDER THE APPLICABLE PROVISIONS OF LAW, THE AMOUNT DUE IS TOO UNCERTAIN TO PERMIT OF SETTLEMENT BY THIS OFFICE. NONE OF THESE FACTORS ARE PRESENT IN CONNECTION WITH THE CLAIMS YOU HAVE FILED HERE.

YOU FURTHER ASK THAT WE REPLY FULLY COVERING THE POINTS MENTIONED BY YOU IN YOUR LETTER OF APRIL 29, 1964. THAT LETTER, AS STATED ABOVE, WAS VIEWED BY US AS A REQUEST TO RECONSIDER THE ACTION TAKEN APRIL 28, 1964, BY OUR CLAIMS DIVISION DISALLOWING THE CLAIM OF GENERAL MURRAY. ADDITION TO THE PROVISIONS OF 28 U.S.C. 2510, ABOVE REFERRED TO, YOUR LETTER OF APRIL 29, 1964, ALSO MAKES SPECIFIC REFERENCE TO THE PROVISIONS OF 10 U.S.C. 6149 AND THE EFFECT YOU BELIEVE SUCH STATUTORY PROVISIONS HAVE IN THE INSTANT CLAIMS. YOUR ATTENTION IS INVITED IN THIS RESPECT TO SECTION 306, TITLE 5, U.S.C. PROVIDING IN PERTINENT PART, THAT:

"THE OFFICERS OF THE DEPARTMENT OF JUSTICE, UNDER THE DIRECTION OF THE ATTORNEY GENERAL * * * SHALL, ON BEHALF OF THE UNITED STATES, PROCURE THE PROPER EVIDENCE FOR, AND CONDUCT, PROSECUTE, OR DEFEND ALL SUITS AND PROCEEDINGS IN THE SUPREME COURT AND IN THE COURT OF CLAIMS, IN WHICH THE UNITED STATES, OR ANY OFFICER THEREOF, AS SUCH OFFICER, IS A PARTY OR MAY BE INTERESTED * * *.'

THUS, UPON THE FILING BY YOU ON MAY 28, 1964, OF PETITION NO. 163-64 IN THE COURT OF CLAIMS IN THE CASE OF CHARLES L. ANDREWS, JR., ET AL. V. UNITED STATES, JURISDICTION OF THE MATTER WAS VESTED IN THAT COURT. HENCE ANY FURTHER MATTERS YOU MAY DESIRE TO SUBMIT IN CONNECTION WITH THE CLAIMS FOR INCREASED RETIRED PAY PRESENTED IN THAT PETITION SHOULD BE ADDRESSED TO THE COURT OR THE DEPARTMENT OF JUSTICE.