B-135053, MAR. 5, 1958

B-135053: Mar 5, 1958

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RECONSIDERATION IS REQUESTED FOR THIS PORTION OF YOUR CLAIM ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WILLIAM SEBASTIAN EBINGER. WHETHER SUCH ADDITIONAL EXTENDED ACTIVE DUTY IS PERFORMED DURING TIME OF NATIONAL EMERGENCY OR DURING PEACE TIME. THE USE OF WHICH WAS AUTHORIZED BY THE DECISION OF THE COURT OF CLAIMS IN HULSE V. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. ALL YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE SANDERS FORMULA WERE FILED WITH US WITHIN TEN YEARS AFTER AUGUST 10. THUS WERE NOT AFFECTED BY THE TEN- YEAR STATUTE OF LIMITATIONS QUOTED ABOVE. WAS NOT FILED WITH US UNTIL DECEMBER 3.

B-135053, MAR. 5, 1958

TO MR. COY LEE ROY SHUMATE:

LETTER OF DECEMBER 2, 1957, WRITTEN IN YOUR BEHALF BY KING AND KING, YOUR ATTORNEYS, REQUESTS RECONSIDERATION OF THAT PORTION OF OFFICE SETTLEMENTS OF DECEMBER 9, 1955, WHICH DENIED ADJUSTED RETIRED PAY FOR THE PERIOD APRIL 1, 1932, THROUGH OCTOBER 31, 1940, BASED ON THE SANDERS FORMULA (SANDERS V. UNITED STATES, 120 C.CLS. 501) FOR THE REASON THAT ACTIVE DUTY PERFORMED OTHER THAN DURING A WAR EMERGENCY PERIOD MAY NOT BE COUNTED TO INCREASE RETAINER OR RETIRED PAY. RECONSIDERATION IS REQUESTED FOR THIS PORTION OF YOUR CLAIM ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WILLIAM SEBASTIAN EBINGER, ET AL. (HENRY GRISSING, PLAINTIFF NO. 79) V. THE UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER 9, 1957, WHEREIN THE COURT HELD THAT ALL PERIODS OF EXTENDED ACTIVE DUTY PERFORMED BY SIXTEEN-YEAR FLEET RESERVISTS AFTER JULY 1, 1925, MAY BE COUNTED IN COMPUTING THEIR RETAINER OR RETIRED PAY UNDER SECTION 208 OF THE 1946 AMENDMENT TO THE NAVAL RESERVE ACT OF 1938, WHETHER SUCH ADDITIONAL EXTENDED ACTIVE DUTY IS PERFORMED DURING TIME OF NATIONAL EMERGENCY OR DURING PEACE TIME. IN THE LETTER OF DECEMBER 2, 1957, YOUR ATTORNEYS ALSO REQUEST THAT YOUR CLAIM BE AMENDED TO COVER CONSIDERATION OF THE PERIOD FROM AUGUST 10, 1946, THROUGH SEPTEMBER 30, 1949, IN ACCORDANCE WITH THE TWO AND ONE-HALF PERCENT FORMULA PROVIDED FOR IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 60 STAT. 993, 34 U.S.C. 854C, THE USE OF WHICH WAS AUTHORIZED BY THE DECISION OF THE COURT OF CLAIMS IN HULSE V. UNITED STATES, 133 C.CLS. 848, DECIDED JANUARY 21, 1956.

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, PROVIDES:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY FOR THE PERIOD APRIL 1, 1932, THROUGH OCTOBER 30, 1940, AND NOVEMBER 17, 1945, THROUGH AUGUST 9, 1946, BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE ACCRUED ON AUGUST 10, 1946, THE DATE OF APPROVAL OF THE STATUTE GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 10, 1946, THROUGH DECEMBER 31, 1948, ACCRUED DAY TO DAY FROM AUGUST 10, 1946, TO DECEMBER 31, 1948. ALL YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE SANDERS FORMULA WERE FILED WITH US WITHIN TEN YEARS AFTER AUGUST 10, 1946, AND THUS WERE NOT AFFECTED BY THE TEN- YEAR STATUTE OF LIMITATIONS QUOTED ABOVE. HOWEVER, YOUR AMENDED CLAIM FOR INCREASED RETIRED PAY ON THE HULSE FORMULA FOR THE PERIOD AUGUST 10, 1946, THROUGH SEPTEMBER 30, 1949, WAS NOT FILED WITH US UNTIL DECEMBER 3, 1957. AN AMENDMENT TO A CLAIM IS A NEW CLAIM INSOFAR AS THE ACT OF OCTOBER 9, 1940, IS CONCERNED. SEE OUR DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED. HENCE, THE PORTION OF YOUR AMENDED CLAIM UNDER THE HULSE DECISION COVERING THE PERIOD PRIOR TO DECEMBER 3, 1947, IS BARRED FROM CONSIDERATION BY THAT ACT.

THIS OFFICE LIKEWISE IS PRECLUDED FROM TAKING ANY ACTION WITH RESPECT TO THE PERIOD OF THE CLAIM FROM JANUARY 1 TO SEPTEMBER 30, 1949, INCLUSIVE, BY REASON OF 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.'

THE RECORD DISCLOSES THAT YOU WERE ONE OF THE PLAINTIFFS ON COURT OF CLAIMS PETITION NO. 490-54 (18) (CLARENCE PAUL BOQUET V. UNITED STATES), AND THAT THE COURT OF CLAIMS ENTERED AN ORDER OF JUDGMENT ON NOVEMBER 8, 1955, IN HIS FAVOR IN THE AMOUNT OF $1,216.63. THE ORDER OF JUDGMENT WAS BASED ON A STIPULATION AGREEMENT DATED NOVEMBER 8, 1955, BASED ON THE SANDERS DECISION, 120 C.CLS. 501, AND THE AMOUNT OF THE JUDGMENT, $318.06 REPRESENTED ADDITIONAL RETIRED PAY AS THE DIFFERENCE BETWEEN ONE-HALF AND ONE-THIRD BASE PAY FORMULA FOR THE PERIOD FROM JANUARY 1 TO SEPTEMBER 30, 1949, INCLUSIVE.

THE ORDER OF JUDGMENT ENTERED BY THE COURT OF CLAIMS ON NOVEMBER 8, 1955, CONSTITUTES A FINAL JUDGMENT AGAINST THE UNITED STATES WITHIN THE PURVIEW OF SUBSECTION (A) AND THE PAYMENT OF THAT JUDGMENT ON THE CERTIFICATION OF THE GENERAL ACCOUNTING OFFICE DATED APRIL 9, 1956, IS REQUIRED, UNDER THE PROVISIONS OF SUBSECTION (B), ABOVE QUOTED, TO BE CONSIDERED AS "A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.' THEREFORE, SINCE THAT PART OF THE PRESENT CLAIM FOR AN ADDITIONAL AMOUNT OF RETIRED PAY COVERING THE PERIOD JANUARY 1 TO SEPTEMBER 30, 1949, INCLUSIVE, WAS INCLUDED IN THE PERIOD COVERED BY THE ORDER OF JUDGMENT DATED NOVEMBER 8, 1955, AND SINCE THE JUDGMENT HAS BEEN PAID, THE PROVISIONS OF 28 U.S.C. 2517 OPERATE AS A BAR TO THE CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE TO THAT PART OF THE PRESENT CLAIM FOR AN AMOUNT IN ADDITION TO THAT ALLOWED BY THE ORDER OF JUDGMENT. SEE 30 COMP. GEN. 178.

IN THE HULSE CASE THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE SANDERS CASE THAT INCREASES FOR GOOD CONDUCT MARKS COULD BE INCLUDED IN THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. ACCORDINGLY, THE ALLOWANCE OF YOUR CLAIMS AS OUTLINED BELOW WILL NOT INCLUDE ANY INCREASES FOR GOOD CONDUCT. IF OTHERWISE CORRECT, YOUR CLAIMS WILL BE ALLOWED ON THE BASIS OF THE EBINGER CASE FOR THE PERIOD FROM APRIL 1, 1932 TO OCTOBER 31, 1940, ON THE SANDERS FORMULA (ONE HALF OF BASE PAY PLUS PERMANENT ADDITIONS) AND FOR THE PERIOD DECEMBER 3, 1947, TO DECEMBER 31, 1948, ON THE HULSE FORMULA (TWO AND ONE-HALF PERCENT FOR EACH YEAR OF ACTIVE SERVICE).