B-128293, JUN. 26, 1956

B-128293: Jun 26, 1956

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JUNE 8. IT IS YOUR CONTENTION THAT UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29. YOUR RETIRED PAY SHOULD HAVE STARTED ON DECEMBER 21. ALTHOUGH YOUR APPLICATION FOR SUCH PAY WAS NOT FILED UNTIL SOME 16 MONTHS LATER. THERE HAVE BEEN RECEIVED TWO LETTERS FROM HONORABLE LAURENCE CURTIS. THERE WERE SET OUT THE REASONS. - WHY WE HAVE DIFFICULTY WITH THE CONCLUSION REACHED IN THE SEAGRAVE CASE. IT WAS FURTHER STATED THAT SINCE THE CONCLUSION IN THAT CASE THAT THE RIGHT TO RETIRED PAY RETROACTIVELY ATTACHES EFFECTIVE AT THE AGE OF 60 WHEN AN APPLICATION IS FILED LATER WOULD SEEM TO PRECLUDE PAYMENT OF BASIC PAY AND ALLOWANCES FOR FEDERAL SERVICE PERFORMED BY PERSONS RETAINED IN ACTIVE RESERVE SERVICE AFTER ATTAINING THAT AGE.

B-128293, JUN. 26, 1956

TO CAPTAIN HARRISON NORTHUP, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 25, 1956, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD FROM DECEMBER 1952 TO APRIL 1954.

IT IS YOUR CONTENTION THAT UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, PUBLIC LAW 810, 89TH CONGRESS, AND THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 C.CLS. 790, YOUR RETIRED PAY SHOULD HAVE STARTED ON DECEMBER 21, 1952, THE DATE ON WHICH YOU REACHED THE AGE OF 60 YEARS, ALTHOUGH YOUR APPLICATION FOR SUCH PAY WAS NOT FILED UNTIL SOME 16 MONTHS LATER. THERE HAVE BEEN RECEIVED TWO LETTERS FROM HONORABLE LAURENCE CURTIS, MEMBER OF CONGRESS, CONCERNING YOUR RIGHTS IN THE MATTER.

IN OUR SETTLEMENT OF MAY 25, 1956, THERE WERE SET OUT THE REASONS--- INCLUDING THE POSSIBILITY OF RETENTION IN AN ACTIVE DUTY STATUS AFTER AGE 60--- WHY WE HAVE DIFFICULTY WITH THE CONCLUSION REACHED IN THE SEAGRAVE CASE. IT WAS FURTHER STATED THAT SINCE THE CONCLUSION IN THAT CASE THAT THE RIGHT TO RETIRED PAY RETROACTIVELY ATTACHES EFFECTIVE AT THE AGE OF 60 WHEN AN APPLICATION IS FILED LATER WOULD SEEM TO PRECLUDE PAYMENT OF BASIC PAY AND ALLOWANCES FOR FEDERAL SERVICE PERFORMED BY PERSONS RETAINED IN ACTIVE RESERVE SERVICE AFTER ATTAINING THAT AGE, OUR OFFICE DOES NOT AT THIS TIME FEEL JUSTIFIED IN ACCEPTING THE COURT'S OPINION IN THE SEAGRAVE CASE.

YOU SEEM TO HAVE INTERPRETED OUR SETTLEMENT AS DENYING YOUR CLAIM ON THE SOLE BASIS THAT YOU SERVED ACTIVELY IN THE RESERVES FROM DECEMBER 21, 1952, TO APRIL 30, 1954. YOU SAY, HOWEVER, THAT THE DENIAL OF YOUR CLAIM ON SUCH BASIS WAS ERRONEOUS FOR THE REASON THAT THE RESERVE COMMISSION WHICH YOU HELD DURING THE PERIOD IN QUESTION WAS THE RESULT OF YOUR APPOINTMENT ON JANUARY 14, 1953, TO THE HONORARY RESERVE, AN INACTIVE BRANCH OF THE ARMY, AND THAT YOU DID NOT SERVE ACTIVELY AFTER REACHING THE AGE OF 60.

OUR FILE DOES NOT CONTAIN AN OFFICIAL REPORT FROM THE DEPARTMENT OF THE ARMY AS TO WHETHER OR NOT YOU PERFORMED ANY ACTIVE DUTY AFTER DECEMBER 21, 1952. WE HAVE CONSISTENTLY HELD, HOWEVER, THAT RETIRED PAY UNDER TITLE III OF PUBLIC LAW 810 IS PAYABLE, IF OTHER CONDITIONS OF THE STATUTE ARE MET, ONLY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE APPLICATION FOR SUCH RETIRED PAY IS FILED. IN THAT CONNECTION IT MAY BE STATED THAT WHILE THE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL AND SERIOUS CONSIDERATION IN CONNECTION WITH MATTERS COMING BEFORE OUR OFFICE, THOSE DECISIONS ARE NOT BINDING UPON US. 14 COMP. GEN. 648; 31 ID. 73.

ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF APRIL 10, 1956, B-113387, TO THE SECRETARY OF DEFENSE. FOR THE REASONS STATED IN THAT DECISION, WE WOULD NOT BE JUSTIFIED AT THIS TIME IN ACCEPTING THE COURT'S OPINION IN THE SEAGRAVE CASE AS A BASIS FOR ANY CHANGE IN THE POSITION WHICH WE HAVE TAKEN IN OUR PRIOR DECISIONS.