B-122512, B-122961, B-123148, B-123149, B-123656, B-126316, JAN. 31, 1956

B-122512, B-122961, B-123148, B-123149, B-123656, B-126316, JAN. 31, 1956

TO MR. SAMUEL T. ANSELL, JR., ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1955, WITH ENCLOSURES, CLAIMING ON BEHALF OF CAPTAIN HAROLD W. DOLPH, COLONEL FRANK A. WARNER, LIEUTENANT COLONEL WILLIAM B. TWISS, CAPTAIN ELMER G. STEVANUS, COLONEL ROANE WARING, AND LIEUTENANT COLONEL ROBERT H. GRIBBIN, RETIREMENT PAY UNDER SECTIONS 302 AND 303 OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 1088, FOR THE PERIOD COMMENCING JUNE 29, 1948, AND EXTENDING WITH RESPECT TO EACH CLAIMANT TO THE EFFECTIVE DATE OF HIS PLACEMENT ON THE ARMY OF THE UNITED STATES RETIRED LIST UNDER THE PROVISIONS OF TITLE III.

EACH OF THESE CLAIMANTS HAS BROUGHT SUIT IN THE UNITED STATES COURT OF CLAIMS FOR THE RETIRED PAY COVERED BY THESE CLAIMS AND YOU SAY THAT YOU HAVE TRANSMITTED TO THE ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES, CIVIL DIVISION, A MOTION TO DISMISS EACH ACTION, TO BE HELD IN ESCROW PENDING OUR SETTLEMENT OF THE CLAIMS. YOUR VIEW THAT WE SHOULD SETTLE THESE CLAIMS IS PREDICATED UPON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SEAGRAVE V. UNITED STATES, C.CLS. NO. 155-54, DECIDED FEBRUARY 8, 1955.

IN 30 COMP. GEN. 287 WE HELD THAT RETIREMENT PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, IS PAYABLE FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION FOR RETIREMENT IS FILED.

CONTRARY TO THE CONCLUSION IN THAT DECISION, IT WAS HELD IN THE SEAGRAVE CASE THAT RETIREMENT PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WAS PAYABLE FROM JUNE 29, 1948, IN THE CASE OF AN INDIVIDUAL WHO WAS QUALIFIED FOR SUCH PAY ON THAT DATE EVEN THOUGH APPLICATION HAD NOT BEEN FILED UNTIL MARCH 12, 1951.

DECISIONS BY THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN CONNECTION WITH MATTERS COMING BEFORE OUR OFFICE. SUCH DECISIONS, HOWEVER, ARE NOT BINDING UPON US. 14 COMP. GEN. 648; 31 COMP. GEN. 73.

WITH RESPECT TO THE SEAGRAVE CASE, THE COURT'S CONCLUSION INDICATES A CHANGE IN VIEW FROM THAT REACHED IN THE CASE OF PRICE V. UNITED STATES, 121 C.CLS. 664, WHERE IT HELD (PAGE 679):

"* * * THAT PLAINTIFF MAY INCLUDE THE GUARD SERVICE RECOGNIZED BY THE FEDERAL GOVERNMENT UNDER THE 1903 AND 1916 ACTS IN COMPUTING HIS YEARS OF SERVICE FOR THE PURPOSE OF RETIRED PAY UNDER THE 1948 ACT, TO BECOME EFFECTIVE AS OF THE DATE OF FILING OF THE APPLICATION.'

ALSO, PRIOR TO THE SEAGRAVE CASE, THE COURT OF CLAIMS HAD HELD, IN CONSTRUING A STATUTE CONTAINING LANGUAGE SOMEWHAT SIMILAR TO THAT CONTAINED IN SUBSECTION 302 (A) OF THE ACT OF JUNE 29, 1948, THAT THE MAKING OF AN APPLICATION BY AN ENLISTED MAN SECURED A RIGHT TO RETIRED PAY BASED ON THE PAY HE WAS RECEIVING ON THE DAY THE APPLICATION WAS MADE AND THAT THE APPLICATION HAD NO RETROACTIVE EFFECT. SEE BLACKETT V. UNITED STATES, 81 C.CLS. 884; CUMMINGS V. UNITED STATES, 89 C.CLS. 498; HORNBLASS V. UNITED STATES, 93 C.CLS. 148; GROSS V. UNITED STATES, 97 C.CLS. 383. IT DOES NOT APPEAR WHAT, IF ANY, CONSIDERATION WAS GIVEN TO SUCH CASES BY THE COURT IN ARRIVING OF ITS CONCLUSION IN THE SEAGRAVE CASE, AND THERE IS NO EXPLANATION FOR ITS DEPARTURE FROM THE CONCLUSION WHICH IT REACHED IN THE PRICE CASE.

ACCORDINGLY, WE WOULD NOT BE JUSTIFIED AT THIS TIME IN ACCEPTING THE SEAGRAVE CASE AS A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLIENTS' CLAIMS. ACTION ON THE MENTIONED CLAIMS WILL BE HELD IN ABEYANCE PENDING FINAL DISPOSITION BY THE COURT OF YOUR CLIENTS' PETITIONS.