B-107256, OCT. 30, 1957

B-107256, OCT. 30, 1957

TO COLONEL JOHN H. AWTRY, USAR, RETIRED:

BY LETTER OF OCTOBER 2, 1957, B-107256, YOU WERE ADVISED THAT, SINCE YOU HAD BROUGHT SUIT IN THE COURT OF CLAIMS SEEKING RECOVERY OF THE SAME ACTIVE-DUTY PAY AS THAT COVERED BY A CLAIM WHICH YOU HAD PRESENTED TO THIS OFFICE, WE, IN ACCORDANCE WITH OUR PRACTICE, WOULD TAKE NO FURTHER ACTION ON YOUR CLAIM UNTIL THE CONCLUSION OF THE PENDING JUDICIAL PROCEEDINGS.

IN A LETTER OF OCTOBER 10, 1957, MR. RICE SAYS THAT YOU BROUGHT THE ACTION IN THE COURT OF CLAIMS IN ORDER TO STAY THE RUNNING OF THE STATUTE OF LIMITATIONS AND THAT YOU PLAN TO HOLD THE COURT ACTION IN ABEYANCE UNTIL WE HAVE DISPOSED OF YOUR CLAIM. HE SAYS OUR CLAIMS DIVISION HAD ADVISED THAT SUCH PROCEDURE OCCASIONALLY WAS FOLLOWED AND EXPRESSES THE VIEW THAT IN SUCH CIRCUMSTANCES WE SHOULD RESUME CONSIDERATION OF THE CLAIM AND MAKE A DECISION IN THE CASE.

WHEN AN IDENTICAL CLAIM IS PENDING HERE AND IN THE COURT OF CLAIMS AND WE FIND THAT THE CLAIM CLEARLY IS ALLOWABLE, WE HAVE PROCEEDED TO SETTLE THE CLAIM UPON RECEIPT OF ADVICE FROM THE DEPARTMENT OF JUSTICE THAT A MOTION BY THE CLAIMANT TO DISMISS THE JUDICIAL PROCEEDING IS BEING HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT BY US. IN OUR VIEW, HOWEVER, THE RECORD RAISES SUCH DOUBT AS TO YOUR RIGHT TO THE CLAIMED ADDITIONAL ACTIVE-DUTY PAY THAT THE MATTER SHOULD BE LEFT TO JUDICIAL DETERMINATION. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316.

IN THE CIRCUMSTANCES AND AS JUDICIAL PROCEEDINGS ARE PENDING, WE MUST DECLINE AT THIS TIME TO ..END :