B-134498, JUN. 30, 1964

B-134498: Jun 30, 1964

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LOCK: REFERENCE IS MADE TO LETTER OF FEBRUARY 24. THE CLAIM WHICH WAS BASED ON THE DECISION IN THE CASE OF SELIGA V. WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF FEBRUARY 18. LOCK'S DISABILITY WAS NOT INCURRED AT A TIME WHEN HE WAS ENTITLED TO RECEIVE BASIC PAY. TO A MEMBER WHO QUALIFIES THEREFORE AND IN ORDER TO QUALIFY THE MEMBER'S DISABILITY MUST HAVE BEEN INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY. THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON A REPORT DATED FEBRUARY 10. IN WHICH IT WAS STATED "IT IS THE OPINION OF THIS BUREAU THAT THE CONDITION FOR WHICH LOCK WAS RETIRED DID NOT OCCUR WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.'. LOCK'S DISABILITY DID NOT OCCUR WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.

B-134498, JUN. 30, 1964

TO MRS. EMMA M. LOCK:

REFERENCE IS MADE TO LETTER OF FEBRUARY 24, 1964, FROM YOUR ATTORNEYS, REQUESTING RECONSIDERATION OF THE CLAIM FILED ON YOUR BEHALF FOR INCREASED DISABILITY RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO DATE OF DEATH, MAY 22, 1962, IN THE CASE OF YOUR HUSBAND, THE LATE STANLEY ONEASE LOCK, USN, RETIRED. THE CLAIM WHICH WAS BASED ON THE DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF FEBRUARY 18, 1964, FOR THE REASON THAT INFORMATION RECEIVED FROM THE DEPARTMENT OF THE NAVY SHOWED MR. LOCK'S DISABILITY WAS NOT INCURRED AT A TIME WHEN HE WAS ENTITLED TO RECEIVE BASIC PAY.

THE BENEFITS CLAIMED UNDER THE SELIGA DECISION ACCRUE UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, TO A MEMBER WHO QUALIFIES THEREFORE AND IN ORDER TO QUALIFY THE MEMBER'S DISABILITY MUST HAVE BEEN INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY. THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON A REPORT DATED FEBRUARY 10, 1964, FROM THE BUREAU OF MEDICINE AND SURGERY OF THE DEPARTMENT OF THE NAVY, IN WHICH IT WAS STATED "IT IS THE OPINION OF THIS BUREAU THAT THE CONDITION FOR WHICH LOCK WAS RETIRED DID NOT OCCUR WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.' UPON REQUEST FOR VERIFICATION, HOWEVER, THE BUREAU OF MEDICINE AND SURGERY BY LETTER OF MARCH 18, 1964, AMPLIFIED ITS PREVIOUS REPORT TO INDICATE THAT, ALTHOUGH MR. LOCK'S DISABILITY DID NOT OCCUR WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY, THE CONDITION WHICH LATER BECAME DISABLING AND WAS THE BASIS FOR HIS DISABILITY RETIREMENT WAS INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY.

IN 35 COMP. GEN. 626, WE HELD:

"IN THE ABSENCE OF A CONTROLLING DEFINITION IN THE STATUTE, OR OTHER STATUTORY LANGUAGE REQUIRING A DIFFERENT CONCLUSION, IT IS OUR VIEW THAT THE TERM "INCURRED," AS USED IN SUBSECTIONS (A) AND (B) OF SECTION 402, PROPERLY IS TO BE CONSIDERED AS REFERRING TO THE DATE OF ONSET OF THE DISEASE OR OCCURRENCE OF THE INJURY.'

SINCE THE BUREAU OF MEDICINE AND SURGERY HAS NOW REPORTED THAT THE DISABILITY FOR WHICH MR. LOCK WAS RETIRED DEVELOPED FROM A CONDITION WHICH WAS FIRST DETECTED IN 1929 WHILE HE WAS SERVING ON ACTIVE DUTY AND ENTITLED TO RECEIVE "BASIC PAY," IT IS CONCLUDED THAT THE DECEDENT QUALIFIED FOR THE INCREASED RETIRED PAY CLAIMED. ACCORDINGLY OUR CLAIMS DIVISION IS BEING INSTRUCTED TO DETERMINE THE AMOUNT ALLOWABLE ON THIS CLAIM AND REPORT IT TO YOU. UNDER OUR CURRENT PROCEDURE NO SETTLEMENT VOUCHER OR CHECK WILL BE ISSUED IN YOUR FAVOR IN THE ABSENCE OF A STATEMENT SIGNED BY YOU, AFTER RECEIPT OF THE LETTER FROM OUR CLAIMS DIVISION, IN WHICH YOU AGREE TO ACCEPT THE ACCOUNT WHICH WILL BE SO OFFERED AS A BASIS FOR FILING IN THE COURT THE MOTION TO DISMISS YOUR PETITION IN THE CASE OF BRANDENSTEIN, ET AL. V. UNITED STATES, CT.CL.NO. 98-59, WHICH MOTION IS NOW BEING HELD IN ESCROW IN THE DEPARTMENT OF JUSTICE.