B-137666, OCT. 27, 1964

B-137666: Oct 27, 1964

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RETIRED: REFERENCE IS MADE TO THE LETTER OF MAY 14. THE ADJUSTMENT ALLOWED BY THE COURT WAS BASED ON SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947. WHICH AUTHORIZED CERTAIN OFFICERS WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT TO RECEIVE RETIRED PAY AT THREE- FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT. THE JUDGMENT WAS LIMITED TO THE PERIOD BEGINNING OCTOBER 2. THERE WAS RECEIVED IN OUR OFFICE YOUR LETTER OF SEPTEMBER 30. THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF OCTOBER 21. SOLELY ON THE BASIS THAT YOU WERE NOT ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT.

B-137666, OCT. 27, 1964

TO CAPTAIN H. R. O. JOHNSTON, USNR, RETIRED:

REFERENCE IS MADE TO THE LETTER OF MAY 14, 1964, FROM YOUR ATTORNEY REQUESTING THAT YOU BE ALLOWED AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD DECEMBER 10, 1948, THROUGH OCTOBER 1, 1952, BASED ON THE DECISION OF THE COURT OF CLAIMS IN YOUR FAVOR DATED DECEMBER 13, 1963, IN THE CASE OF H. R. O. JOHNSTON V. UNITED STATES, CT.CL. NO. 441-58. THE ADJUSTMENT ALLOWED BY THE COURT WAS BASED ON SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 874, WHICH AUTHORIZED CERTAIN OFFICERS WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT TO RECEIVE RETIRED PAY AT THREE- FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT, BUT THE JUDGMENT WAS LIMITED TO THE PERIOD BEGINNING OCTOBER 2, 1952, SIX YEARS BEFORE DATE OF FILING OF THE PETITION, IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. 2501.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, GENERALLY BARS CONSIDERATION OF CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. ON OCTOBER 2, 1959, THERE WAS RECEIVED IN OUR OFFICE YOUR LETTER OF SEPTEMBER 30, 1959, IN WHICH YOU CLAIMED AN ADJUSTMENT IN RETIRED PAY BETWEEN THAT WHICH HAD BEEN PAID TO YOU AND 75 PERCENT OF THE PAY OF YOUR GRADE BASED ON THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 368. A FOOTNOTE IN YOUR LETTER READS "I ALSO RECEIVED THE DISTINGUISHED SERVICE MEDAL FOR SUBMARINE ENGAGEMENT ON JUNE 27TH, 1918.' THAT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF OCTOBER 21, 1959, SOLELY ON THE BASIS THAT YOU WERE NOT ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT. IN VIEW OF THE FOOTNOTE IN YOUR LETTER OF SEPTEMBER 30, 1959, HOWEVER, THAT LETTER WILL BE REGARDED AS A CLAIM FOR THE ADJUSTMENT NOW UNDER CONSIDERATION WITHIN THE MEANING OF THE ACT OF OCTOBER 9, 1940. ACCORDINGLY, CONSIDERATION OF YOUR CLAIM FOR ONLY THE PERIOD BEFORE OCTOBER 2, 1949, IS BARRED.

OUR CLAIMS DIVISION IS BEING INSTRUCTED TO ISSUE A SETTLEMENT IN YOUR FAVOR ALLOWING THE ADJUSTMENT CLAIMED FOR THE PERIOD OCTOBER 2, 1949, TO OCTOBER 1, 1952, INCLUSIVE, IF OTHERWISE CORRECT.