B-117203, DEC. 3, 1956

B-117203: Dec 3, 1956

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ARMY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16. IN YOUR LETTER THE OBSERVATION IS MADE THAT "IT APPEARS THAT GENERAL ACCOUNTING OFFICE ERRONEOUSLY CREDITED OFFICER WITH SERVICE IN ARMY OF THE UNITED STATES FROM 1 JULY 1949 THROUGH 30 JUNE 1952" IN THE COMPUTATION OF YEARS OF SERVICE FOR PERCENTAGE PURPOSES. WAS TO SATISFY THE COURT OF CLAIMS' JUDGMENT IN FAVOR OF PAUL TANNER. THE SUM ALLOWED WAS REQUIRED TO BE IN THE EXACT AMOUNT OF THE JUDGMENT. HENCE IS NOT SUBJECT TO FURTHER COMPUTATION. IT MAY BE STATED THAT AT THE TIME COMPUTATIONS WERE SUBMITTED TO THE COURT OF CLAIMS PURSUANT TO ITS ORDER. NO QUESTION WAS RAISED THAT TANNER'S COMMISSION IN THE ARMY OF THE UNITED STATES CONTINUED TO THE DATE OF HIS RETIREMENT AND CREDIT WAS GIVEN AT THE RATE OF 15 POINTS A YEAR FOR SUCH MEMBERSHIP.

B-117203, DEC. 3, 1956

TO CHIEF, RETIRED PAY DIVISION, FINANCE CENTER, U.S. ARMY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1956, WITH ENCLOSURES, REGARDING PAYMENT OF THE JUDGMENT IN THE AMOUNT OF $4,523.50, ENTERED MAY 3, 1955, BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF PAUL TENNER V. UNITED STATES, 129 C.CLS. 792.

IN YOUR LETTER THE OBSERVATION IS MADE THAT "IT APPEARS THAT GENERAL ACCOUNTING OFFICE ERRONEOUSLY CREDITED OFFICER WITH SERVICE IN ARMY OF THE UNITED STATES FROM 1 JULY 1949 THROUGH 30 JUNE 1952" IN THE COMPUTATION OF YEARS OF SERVICE FOR PERCENTAGE PURPOSES. YOU POINT OUT THAT YOUR COMPUTATIONS SHOW THE PERCENTAGE TO BE 10.49, WHEREAS OUR CLAIMS DIVISION SETTLEMENT OF FEBRUARY 21, 1956, CERTIFYING THE JUDGMENT FOR PAYMENT, COMPUTED RETIRED PAY FOR THE PERIOD JULY 1, 1952, THROUGH NOVEMBER 2, 1954, ON THE BASIS OF 10.61 YEARS OF SERVICE.

IN VIEW OF SUCH DIFFERENCE IN THE YEARS OF SERVICE FOR PERCENTAGE PURPOSES AND RATE OF RETIRED PAY, YOU REQUEST TO BE ADVISED WHETHER AN OVERPAYMENT OF RETIRED PAY HAS RESULTED, AND, IF SO, WHETHER THE INDEBTEDNESS SHOULD BE OFFSET AGAINST A CLAIM NOW PENDING IN YOUR OFFICE FOR RETIRED PAY FOR THE PERIOD NOVEMBER 3, 1954, THROUGH AUGUST 3, 1955.

THE PURPOSE OF THE SETTLEMENT OF FEBRUARY 21, 1956, WAS TO SATISFY THE COURT OF CLAIMS' JUDGMENT IN FAVOR OF PAUL TANNER, AND THE SUM ALLOWED WAS REQUIRED TO BE IN THE EXACT AMOUNT OF THE JUDGMENT, AND HENCE IS NOT SUBJECT TO FURTHER COMPUTATION. IT MAY BE STATED THAT AT THE TIME COMPUTATIONS WERE SUBMITTED TO THE COURT OF CLAIMS PURSUANT TO ITS ORDER, NO QUESTION WAS RAISED THAT TANNER'S COMMISSION IN THE ARMY OF THE UNITED STATES CONTINUED TO THE DATE OF HIS RETIREMENT AND CREDIT WAS GIVEN AT THE RATE OF 15 POINTS A YEAR FOR SUCH MEMBERSHIP, WHICH, OF COURSE, RESULTED IN THE AMOUNT STATED IN THE MONETARY JUDGMENT AGAINST THE UNITED STATES.

THIS CONCLUSION WAS BASED ON THE VIEW THAT TANNER'S ARMY OF THE UNITED STATES SERVICE FOR THE PERIOD IN QUESTION CAME WITHIN THE PURVIEW OF SEC. 306 (C) (7) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087. THIS WAS IN CONSONANCE WITH THE VIEW OF THE ADJUTANT GENERAL AS STATED IN HIS REPORT DATED MARCH 28, 1955, AGPO-SC 210.85, TO OUR CLAIMS DIVISION, WHEREIN IT IS SHOWN THAT PAUL TANNER, 0171808, WHO HAD ONLY AUS STATUS AFTER JUNE 30, 1949, WAS CREDITED WITH 45 MEMBERSHIP POINTS FOR THE PERIOD JULY 1, 1949, THROUGH JUNE 30, 1952.

THEREAFTER, THAT PRECISE POINT WAS CONSIDERED, AND IN OUR DECISION OF OCTOBER 7, 1955, B-123992, 35 COMP. GEN. 191, IT WAS STATED THAT:

" * * * IT SEEMS APPARENT THAT THERE IS, AT THE LEAST, GRAVE DOUBT THAT THE PERTINENT STATUTORY PROVISIONS CONTEMPLATED THAT PERSONS WHOSE MILITARY STATUS DEPENDED SOLELY ON APPOINTMENTS AS OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, MADE UNDER THE ACT OF SEPTEMBER 22, 1941, WOULD CONTINUE TO BE OFFICERS AFTER JULY 1, 1948. IN A MATTER INVOLVING SUCH GRAVE DOUBT, WE ARE CONSTRAINED TO RESOLVE THE DOUBT IN FAVOR OF THE CONCLUSION WHICH WILL RESULT IN THE CONSERVATION OF APPROPRIATED FUNDS AND, THUS, TO RESERVE FOR THE COURTS THE ULTIMATE DETERMINATION OF THE MATTER. * * * "

WHILE THE DECISION OF OCTOBER 7, 1955, MIGHT REQUIRE OMISSION OF POINTS IN COMPUTING RETIRED PAY UNDER THE SAID TITLE III IN CASES LIKE TANNER, PAYMENT WAS REQUIRED IN ACCORDANCE WITH THE JUDGMENT.

ACCORDINGLY, OFFSET IS NOT REQUIRED AGAINST RETIRED PAY BEING ADJUSTED IN YOUR OFFICE.