B-132803, OCT. 3, 1957

B-132803: Oct 3, 1957

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ATTORNEYS AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26. THE CLAIM WAS DISALLOWED BY THE ABOVE SETTLEMENT ON THE GROUND THAT RETIRED PAY UNDER TITLE III IS PAYABLE. IF THE CONDITIONS OF THE STATUTE ARE MET. FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION THEREFOR IS FILED. REVIEW OF THE SETTLEMENT IS REQUESTED ON THE BASIS OF THE HOLDING IN THE CASE OF SEAGRAVE V. AT LEAST UNTIL THE ESTEVES CASE IS DECIDED. IT IS NOT APPARENT HOW SUCH A CONFERENCE WOULD SERVE ANY USEFUL PURPOSE.

B-132803, OCT. 3, 1957

TO SUTHERLAND, AS BILL AND BRENNAN, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 7, 1957, WHICH DISALLOWED THE CLAIM OF YOUR CLIENT, LIEUTENANT COLONEL MERRILL J. CURTIS, AUS, RETIRED, FOR RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, FOR THE PERIOD DECEMBER 1, 1951, TO DECEMBER 31, 1954.

IT APPEARS THAT COLONEL CURTIS BECAME 60 YEARS OLD ON NOVEMBER 21, 1951, AT WHICH TIME HE HAD COMPLETED AT LEAST 20 YEARS' SATISFACTORY FEDERAL SERVICE AS REQUIRED BY TITLE III FOR QUALIFICATION FOR RETIRED PAY. MADE APPLICATION FOR THIS RETIRED PAY ON DECEMBER 22, 1954, AND HE HAS BEEN PAID RETIRED PAY SINCE JANUARY 1, 1955.

THE CLAIM WAS DISALLOWED BY THE ABOVE SETTLEMENT ON THE GROUND THAT RETIRED PAY UNDER TITLE III IS PAYABLE, IF THE CONDITIONS OF THE STATUTE ARE MET, FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION THEREFOR IS FILED. REVIEW OF THE SETTLEMENT IS REQUESTED ON THE BASIS OF THE HOLDING IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 C.CLS. 790, FOLLOWED IN STEVANUS V. UNITED STATES, C.CLS. NO. 70-55, 149 F.SUPP. 655.

SECTION 302 (A) OF THE ACT OF JUNE 29, 1948, PROVIDES THAT TITLE III RETIRED PAY SHALL BE GRANTED "UPON APPLICATION THEREFOR.' THE DECISION IN THE SEAGRAVE CASE THAT, UPON SUBSEQUENT APPLICATION, A RIGHT TO RETIRED PAY ARISES AUTOMATICALLY, EFFECTIVE BACK TO THE DATE OF FIRST MEETING AGE AND SERVICE QUALIFICATIONS, SEEMS TO BE IN DIRECT CONFLICT WITH SECTION 302 (E) OF THE LAW WHICH PERMITS A PERSON TO BE RETAINED ON DUTY WITH HIS CONSENT TO PERFORM FEDERAL SERVICE AFTER MEETING THE ELIGIBILITY REQUIREMENTS UNDER THAT SECTION. WHILE THE FACTS IN THE PENDING CASE OF ESTEVES V. UNITED STATES, C.CLS. NO. 118 55, DIFFER FROM THOSE IN THE SEAGRAVE CASE, THE ESTEVES CASE INVOLVES SECTION 302 (E) AND THE COURT MUST CONSIDER ITS EFFECT. THUS, THE DECISION IN THE ESTEVES CASE MAY AFFECT OR ALTER THE DOCTRINE OF THE SEAGRAVE CASE.

UNDER THE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED AT THIS TIME IN FOLLOWING THE SEAGRAVE CASE. ACCORDINGLY, THE DISALLOWANCE OF COLONEL CURTIS' CLAIM MUST BE SUSTAINED.

WITH REFERENCE TO YOUR REQUEST FOR A CONFERENCE WITH REPRESENTATIVES OF OUR OFFICE IN REGARD TO COLONEL CURTIS' CLAIM YOU MAY CALL AT THIS OFFICE AT ANY TIME DURING WORKING HOURS TO DISCUSS THE MATTER. SINCE, HOWEVER, AT LEAST UNTIL THE ESTEVES CASE IS DECIDED, WE DO NOT FEEL THAT WE CAN TAKE ANY FAVORABLE ACTION ON THE CLAIM, IT IS NOT APPARENT HOW SUCH A CONFERENCE WOULD SERVE ANY USEFUL PURPOSE.