B-119120, SEP. 4, 1956

B-119120, SEP. 4, 1956

TO ANSELL AND ANSELL, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, REQUESTING RECONSIDERATION OF THE CLAIM OF COLONEL ANEES MOGABGAB FOR RETIRED PAY. BY SETTLEMENT DATED JUNE 20, 1956, COLONEL MOGABGAB WAS ALLOWED THE AMOUNT OF $5,696.43, REPRESENTING RETIREMENT PAY FROM NOVEMBER 1, 1953, THROUGH MARCH 31, 1956.

YOU REFER TO OUR REPORT DATED FEBRUARY 2, 1956, B-119120, TO THE UNITED STATES COURT OF CLAIMS IN THE CASE OF CHARLES C. ADAMS, ET AL. V. UNITED STATES, COURT OF CLAIMS NO. 38-54, WHEREIN IT IS STATED THAT COLONEL MOGABGAB "WAS PLACED ON THE RETIRED LIST OCTOBER 31, 1953, WITH ENTITLEMENT TO RETIRED PAY FROM OCTOBER 1, 1953.' ON THE BASIS OF THAT REPORT, YOU CONTEND THAT COLONEL MOGABGAB IS ENTITLED TO ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 1-31, 1953.

THE REPORT TO THE COURT OF CLAIMS TO WHICH YOU REFER MUST BE CONSIDERED AS ADVISORY ONLY. THAT REPORT INCLUDED IN THE COMPUTATIONS AMOUNTS WHICH WOULD APPEAR PROPER FOR ALLOWANCE BY THE COURT UNDER THE SEAGRAVES CASE, 131 C.CLS. 790. HOWEVER, NO JUDGMENT WAS ENTERED AGAINST THE GOVERNMENT FOR THE AMOUNT OF THE COMPUTATIONS SET OUT IN THAT REPORT AND, IN THE ABSENCE OF SUCH A JUDGMENT, COLONEL MOGABGAB'S CLAIM IS FOR SETTLEMENT ACCORDING TO THE LAW AND PRECEDENTS DEEMED APPLICABLE TO IT. THE SEAGRAVES CASE HAS NOT BEEN FOLLOWED IN THE SETTLEMENT OF CLAIMS BY OUR CLAIMS DIVISION.

IT APPEARS FROM THE RECORDS THAT COLONEL MOGABGAB APPLIED FOR RETIREMENT ON OCTOBER 2, 1953; THAT HE WAS PLACED ON THE RETIRED LIST ON OCTOBER 31, 1953; AND, HENCE, HE BECAME ENTITLED TO RETIRED PAY FROM NOVEMBER 1, 1953. THE SETTLEMENT OF HIS CLAIM ON THAT BASIS WAS IN ACCORDANCE WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, AND THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, 46 STAT. 253. WE ARE OF THE OPINION THAT THE SETTLEMENT OF JUNE 20, 1956, IS PROPER, AND UPON REVIEW IT IS SUSTAINED.