B-121892, NOV. 12, 1957

B-121892: Nov 12, 1957

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NOLLENBERGER: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. THE DISALLOWANCE OF WHICH WAS SUSTAINED IN A DECISION TO YOU DATED FEBRUARY 17. YOU STATE FURTHER THAT THE PURPORTED DECISION PERTAINED PRIMARILY TO INDIVIDUALS WHO WERE NOT PROVIDED GOVERNMENT QUARTERS. THE INFORMATION YOU HAVE RECEIVED RELATES TO THE CASE OF AXUP ET AL. WHICH WAS PENDING IN THE UNITED STATES COURT OF CLAIMS FOR SEVERAL YEARS. AN OFFER OF COMPROMISE WAS MADE BY THE PLAINTIFFS AND THAT CASE WAS SETTLED BY STIPULATION BETWEEN THE PARTIES BASED ON THE OFFER OF COMPROMISE. AN ORDER EMBODYING THE TERMS OF THE STIPULATION WAS ENTERED ON OCTOBER 9. UNDER WHICH THE CLAIMS OF SOME OF THE PLAINTIFFS WERE DISMISSED WITH PREJUDICE AND THE CLAIMS OF THE OTHER PLAINTIFFS WERE ALLOWED IN REDUCED AMOUNTS.

B-121892, NOV. 12, 1957

TO CAPTAIN ROBERT W. NOLLENBERGER:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1957, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR STATION PER DIEM ALLOWANCE FOR THE PERIOD OCTOBER 1, 1948, TO FEBRUARY 28, 1951, WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE, THE DISALLOWANCE OF WHICH WAS SUSTAINED IN A DECISION TO YOU DATED FEBRUARY 17, 1955, B 121892.

YOU REFER TO INFORMATION RECENTLY RECEIVED BY YOU THAT A GROUP OF OFFICERS FORMERLY STATIONED IN TRIESTE HAD RETAINED A LAWYER AND THAT BASED UPON NEW INFORMATION, HEARINGS, ETC., AN AMENDED DECISION HAD BEEN RENDERED BY THE COMPTROLLER GENERAL. YOU STATE FURTHER THAT THE PURPORTED DECISION PERTAINED PRIMARILY TO INDIVIDUALS WHO WERE NOT PROVIDED GOVERNMENT QUARTERS. PRESUMABLY, THE INFORMATION YOU HAVE RECEIVED RELATES TO THE CASE OF AXUP ET AL. V. UNITED STATES, C.CLS. NO. 56-53, WHICH WAS PENDING IN THE UNITED STATES COURT OF CLAIMS FOR SEVERAL YEARS. AN OFFER OF COMPROMISE WAS MADE BY THE PLAINTIFFS AND THAT CASE WAS SETTLED BY STIPULATION BETWEEN THE PARTIES BASED ON THE OFFER OF COMPROMISE. AN ORDER EMBODYING THE TERMS OF THE STIPULATION WAS ENTERED ON OCTOBER 9, 1956, UNDER WHICH THE CLAIMS OF SOME OF THE PLAINTIFFS WERE DISMISSED WITH PREJUDICE AND THE CLAIMS OF THE OTHER PLAINTIFFS WERE ALLOWED IN REDUCED AMOUNTS.

NO DECISION WAS MADE BY THE COURT IN THE AXUP CASE AS TO THE LEGAL RIGHTS OF THE PLAINTIFFS UNDER APPLICABLE PROVISIONS OF LAW AND REGULATIONS AND THE STIPULATION AGREEMENT BETWEEN THE PARTIES TO THAT ACTION FURNISHES NO LEGAL BASIS FOR ALLOWING YOUR CLAIM SINCE YOU ADMIT THAT GOVERNMENT QUARTERS WERE AVAILABLE ON AND AFTER JUNE 30, 1950, WHEN THE REGULATIONS THEN IN EFFECT PERMITTED PAYMENT OF STATION QUARTERS PER DIEM AT THE RATE OF $1 PER DAY WHEN GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR A MEMBER AND HIS DEPENDENTS. YOU WERE ADVISED IN THE DECISION OF FEBRUARY 17, 1955, AS TO YOUR RIGHTS IN THE PREMISES AND NO DECISION HAS BEEN RENDERED BY US WHICH MODIFIED IN ANY WAY THE VIEWS THERE EXPRESSED.

THE DECISION OF FEBRUARY 17, 1955, AND A COPY OF OUR DECISION OF MARCH 17, 1953, B-111431, ENCLOSED WITH YOUR LETTER, ARE RETURNED HEREWITH, AS REQUESTED.