B-132653, OCT. 9, 1957

B-132653: Oct 9, 1957

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THOMAS AZARIAH HOWARD: REFERENCE IS MADE TO LETTER OF JULY 8. YOU WERE AWARDED INCREASED RETIRED PAY FOR THE PERIOD SEPTEMBER 2. YOU WERE PAID THE AMOUNT OF THE JUDGMENT. YOUR PRESENT CLAIM WAS ADVANCED ON THE BASIS OF THE HOLDING IN HULSE V. WAS DISALLOWED BY THE SETTLEMENT OF JULY 3. YOUR ATTORNEYS MAINTAIN THAT YOU WERE NOT TIMELY INFORMED THAT YOU WERE ENTITLED TO BENEFITS UNDER THE AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938. THERE ARE FOR CONSIDERATION HERE THE PROVISIONS OF 28 U.S.C. 2517. YOUR PRESENT CLAIM FOR INCREASED RETIRED PAY IS FOR A PERIOD INCLUDED IN THE PERIOD COVERED BY THE JUDGMENT OF THE COURT OF CLAIMS DATED FEBRUARY 3. WE ARE BARRED FROM ANY CONSIDERATION OF YOUR CLAIM BY THE STATUTORY PROVISIONS QUOTED ABOVE.

B-132653, OCT. 9, 1957

TO MR. THOMAS AZARIAH HOWARD:

REFERENCE IS MADE TO LETTER OF JULY 8, 1957, FROM KING AND KING, YOUR ATTORNEYS, REQUESTING REVIEW OF THE SETTLEMENT OF OUR OFFICE DATED JULY 3, 1957, WHICH DISALLOWED YOUR CLAIMS FOR INCREASED RETIRED PAY FOR THE PERIOD JUNE 1, 1947, TO SEPTEMBER 30, 1949.

BY JUDGMENT OF THE COURT OF CLAIMS DATED FEBRUARY 3, 1953, IN THE CASE OF WILLIAM SEBASTIAN EBINGER ET AL. V. UNITED STATES, C.CLS. NO. 49615, YOU WERE AWARDED INCREASED RETIRED PAY FOR THE PERIOD SEPTEMBER 2, 1945, TO SEPTEMBER 30, 1949. THIS JUDGMENT FOLLOWED THE OPINION IN SANDERS V. UNITED STATES, 120 C.CLS. 501. YOU WERE PAID THE AMOUNT OF THE JUDGMENT, $1,692.26, BY SETTLEMENT OF OUR OFFICE DATED APRIL 10, 1953.

YOUR PRESENT CLAIM WAS ADVANCED ON THE BASIS OF THE HOLDING IN HULSE V. UNITED STATES, 133 C.CLS. 848, DECIDED JANUARY 21, 1956 (TWO AND ONE-HALF PER CENTUM FOR EACH YEAR OF ACTIVE SERVICE), AND WAS DISALLOWED BY THE SETTLEMENT OF JULY 3, 1957, ON THE GROUND THAT YOU HAD ELECTED TO RECEIVE RETIRED PAY ON THE BASIS OF THE SANDERS HOLDING (50 PERCENTUM OF BASE PAY). YOUR ATTORNEYS MAINTAIN THAT YOU WERE NOT TIMELY INFORMED THAT YOU WERE ENTITLED TO BENEFITS UNDER THE AMENDED SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, THE SECTION HELD TO BE APPLICABLE IN THE HULSE CASE.

REGARDLESS OF WHAT MAY CONSTITUTE AN ELECTION BETWEEN THE SANDERS CASE FORMULA AND THE HULSE CASE FORMULA, THERE ARE FOR CONSIDERATION HERE THE PROVISIONS OF 28 U.S.C. 2517, AS FOLLOWS:

"/A) EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT.

"/B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'

YOUR PRESENT CLAIM FOR INCREASED RETIRED PAY IS FOR A PERIOD INCLUDED IN THE PERIOD COVERED BY THE JUDGMENT OF THE COURT OF CLAIMS DATED FEBRUARY 3, 1953, FOR INCREASED RETIRED PAY. THAT JUDGMENT HAS BEEN PAID. HENCE, WE ARE BARRED FROM ANY CONSIDERATION OF YOUR CLAIM BY THE STATUTORY PROVISIONS QUOTED ABOVE. COMPARE 30 COMP. GEN. 178 AND CASES THEREIN CITED. ACCORDINGLY, WHILE THE ACTION HERETOFORE TAKEN ON YOUR CLAIM SHOULD HAVE BEEN BASED ON 28 U.S.C. 2517 (B), IT IS CLEAR THAT SUCH CLAIM MAY NOT BE ALLOWED.