B-140277, JUN. 23, 1960

B-140277: Jun 23, 1960

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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 14. THIS SUM IS ACCEPTABLE TO THE PLAINTIFF. PAYMENT WILL HAVE TO BE OBTAINED THROUGH THE COURT OF CLAIMS BECAUSE OF THE APPLICATION OF THE TEN YEAR STATUTE OF LIMITATIONS TO AMENDED CLAIMS SUBMITTED TO YOUR OFFICE. THE PLAINTIFF IS PREPARED TO FURNISH THE DEPARTMENT OF JUSTICE WITH A MOTION TO DISMISS THE REMAINING PORTION OF HIS CLAIM FOR THE PERIOD AFTER OCTOBER 1. THE PLAINTIFF IS AWARE THAT YOUR OFFICE HAS ASSERTED A COUNTERCLAIM IN THE GROSS AMOUNT OF $1. 005.63 AS A RESULT OF THE IMPROPER PAYMENT OF OFFICER RETIRED PAY TO THE PLAINTIFF PURSUANT TO THE SATTERWHITE DECISION DURING A PERIOD WHEN THE PLAINTIFF WAS EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY AT A SALARY IN EXCESS OF $3.

B-140277, JUN. 23, 1960

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 14, 1960, AND APRIL 26, 1960, RELATIVE TO THE CLAIMS OF CARLOS M. SANTIAGO, USN (RETIRED), FOR INCREASED RETIRED PAY PENDING IN OUR OFFICE AND BEFORE THE UNITED STATES COURT OF CLAIMS.

IN YOUR LETTER OF APRIL 14, 1960, YOU STATE THAT:

"AS MATTERS NOW STAND, THE NAVY DEPARTMENT HAS OFFERED TO SETTLE THE SANDERS PORTION OF THE CLAIM FOR THE PERIOD FROM NOVEMBER 30, 1947 THROUGH OCTOBER 30 (SEPTEMBER 30), 1949 IN THE AMOUNT OF $605.92. THIS SUM IS ACCEPTABLE TO THE PLAINTIFF, AND PAYMENT WILL HAVE TO BE OBTAINED THROUGH THE COURT OF CLAIMS BECAUSE OF THE APPLICATION OF THE TEN YEAR STATUTE OF LIMITATIONS TO AMENDED CLAIMS SUBMITTED TO YOUR OFFICE. HOWEVER, THE PLAINTIFF IS PREPARED TO FURNISH THE DEPARTMENT OF JUSTICE WITH A MOTION TO DISMISS THE REMAINING PORTION OF HIS CLAIM FOR THE PERIOD AFTER OCTOBER 1, 1949, TO BE HELD IN ESCROW UNTIL SUCH TIME AS YOUR OFFICE AWARDS HIM A SATISFACTORY PAYMENT OF INCREASED DISABILITY RETIRED PAY TOGETHER WITH THE INCREASED SANDERS-TYPE PAY FOR THE PERIOD FROM SEPTEMBER 19, 1945 THROUGH NOVEMBER 29, 1947.

"IN MAKING THIS SUGGESTION, THE PLAINTIFF IS AWARE THAT YOUR OFFICE HAS ASSERTED A COUNTERCLAIM IN THE GROSS AMOUNT OF $1,005.63 AS A RESULT OF THE IMPROPER PAYMENT OF OFFICER RETIRED PAY TO THE PLAINTIFF PURSUANT TO THE SATTERWHITE DECISION DURING A PERIOD WHEN THE PLAINTIFF WAS EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY AT A SALARY IN EXCESS OF $3,000. ACCORDING TO DATA OBTAINED FROM THE NAVY FINANCE CENTER, THE SUM OF $668.07 HAS BEEN RECOVERED BY CHECKING THE PLAINTIFF'S RETIRED PAY, LEAVING A PURPORTED OVERPAYMENT OF $337.56 TO BE OFFSET AGAINST THIS SETTLEMENT.

"THE PLAINTIFF HAS AUTHORIZED THIS OFFICE TO AGREE TO THE REFUND OF ANY OVERPAYMENTS WHICH HE HAS RECEIVED, BUT IT IS RESPECTFULLY SUBMITTED THAT THE AMOUNT ASSERTED BY YOUR OFFICE HAS BEEN IMPROPERLY COMPUTED. * * *"

ALTHOUGH THERE APPEARS NO PRESENT OBJECTION TO THE PAYMENT OF THE CLAIM HERE FOR THE PERIOD SEPTEMBER 19, 1945, THROUGH NOVEMBER 29, 1947, EXCEPT FOR THE COURT OF CLAIMS PETITION (C.CLS. NO. 642-53) COVERING THE PERIOD FROM NOVEMBER 30, 1947, TO SEPTEMBER 30, 1949, ON THE BASIS OF SANDERS V. UNITED STATES, SUPRA, AND HULSE V. UNITED STATES, 133 C.CLS. 849, WE ARE OF THE OPINION THAT MR. SANTIAGO IS NOT ENTITLED TO INCREASED DISABILITY RETIREMENT PAY FROM OCTOBER 1, 1949, UNDER THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, AND HENCE, SETTLEMENT WOULD NOT BE AUTHORIZED ON THE BASIS PROPOSED IN YOUR LETTERS.

IT APPEARS FROM REPORTS IN OUR FILES THAT MR. SANTIAGO SERVED IN THE UNITED STATES ARMY FROM DATE OF ENLISTMENT ON SEPTEMBER 1, 1916, TO DECEMBER 31, 1918, AND FROM MARCH 4, 1919, TO MARCH 6, 1920, HIS SERVICES DURING THE PERIOD AUGUST 13, 1918, TO DECEMBER 31, 1918, HAVING BEEN COMMISSIONED SERVICE AS SECOND LIEUTENANT, INFANTRY; THAT HE ENLISTED IN THE NAVY ON APRIL 28, 1920, AND SERVED THROUGH SUCCESSIVE TERMS OF ENLISTMENT UNTIL AUGUST 1, 1936, WHEN HE WAS TRANSFERRED TO THE FLEET RESERVE WITH AN ENLISTED RATING OF CHIEF STOREKEEPER AND WAS RELEASED TO INACTIVE DUTY; THAT HE WAS TRANSFERRED TO THE RETIRED LIST ON NOVEMBER 1, 1940, BY REASON OF PHYSICAL DISABILITY; AND THAT HE SERVED ON ACTIVE DUTY AGAIN FROM NOVEMBER 2, 1940, TO SEPTEMBER 18, 1945. IT WILL BE NOTED THAT AT THE TIME OF MR. SANTIAGO'S TRANSFER TO THE RETIRED LIST, BY REASON OF PHYSICAL DISABILITY, HE WAS IN AN INACTIVE DUTY STATUS. IN THIS CONNECTION, OUR FILES INDICATE THAT ON OCTOBER 16, 1951, MR. SANTIAGO WAS ADVISED THAT HE WAS NOT ELIGIBLE FOR BENEFITS UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SINCE THE PHYSICAL DISABILITY WHICH RESULTED IN HIS RETIREMENT WAS NOT INCURRED WHILE IN RECEIPT OF BASIC PAY.

THE PRESENT CLAIMS, HERE AND IN THE COURT OF CLAIMS, FOR DISABILITY RETIREMENT PAY FROM OCTOBER 1, 1949, ARE STATED TO BE PREDICATED ON SECTIONS 202, 402, AND 411 OF THE CAREER COMPENSATION ACT OF 1949.

SECTION 411 OF THE 1949 ACT PROVIDED, IN PART, PERTINENT HERE:

"SEC. 411. PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.'

THE QUALIFICATIONS FOR DISABILITY RETIREMENT PAY UNDER THIS ACT ARE SET OUT IN SECTION 402. IN (A) AND (B) OF SECTION 402, THE FIRST REQUIREMENT FOR QUALIFICATION IS:

"* * * (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY; * * *"

IN (C) OF SECTION 402, THE REQUIREMENTS ARE, AMONG OTHERS:

"* * * (1) THAT A MEMBER OF THE UNIFORMED SERVICES, OTHER THAN THOSE MEMBERS COVERED IN SUBSECTIONS (A) AND (B) OF THIS SECTION, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING BY REASON OF PHYSICAL DISABILITY RESULTING FROM AN INJURY; * * * (4) THAT SUCH INJURY WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY, FULL-TIME TRAINING DUTY, OTHER FULL TIME DUTY, OR INACTIVE DUTY TRAINING, AS THE CASE MAY BE; * * *"

SINCE OUR RECORDS INDICATE THAT MR. SANTIAGO WAS TRANSFERRED TO THE RETIRED LIST ON NOVEMBER 1, 1940, IT MUST BE PRESUMED THAT SUCH ACTION WAS TAKEN AS A RESULT OF A REQUIRED PHYSICAL EXAMINATION UNDER SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AND PURSUANT TO THE SECOND PROVISO OF THAT SECTION.

IN VIEW OF THE ABOVE CONSIDERATIONS THE PROPOSED SETTLEMENT BASIS UPON WHICH YOU WILL DEPOSIT A MOTION TO DISMISS THE COURT ACTIONS IS NOT AGREEABLE TO US, AND IN VIEW OF THE QUESTIONS EXTENT IN THIS CASE, IT APPEARS THAT THE ANSWERS SHOULD BE RESOLVED IN THE COURT OF CLAIMS.