B-141450, JUN. 23, 1964
Highlights
TO KING AND KING: REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. THAT ACTION WAS BASED ON THE MOTION TO DISMISS MR. WHICH MOTION WAS CONDITIONED ON SATISFACTORY SETTLEMENT OF HIS CLAIM FOR FAGAN (GOVER/-TYPE BENEFITS. WHILE THE SETTLEMENT AND CHECK WERE ISSUED TO MR. CLARK THROUGH YOUR OFFICE AND WERE ACCEPTED BY YOU FOR HIM. OUR OFFICE WILL AGAIN CONSIDER HIS CLAIM FOR INCREASED RETIRED PAY BASED ON LONGEVITY CREDIT FOR CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS UNDER THE DECISION OF FEBRUARY 14. THAT WE HAVE NOT YET DECIDED WHETHER OR NOT WE WILL FOLLOW THAT CASE AS A PRECEDENT. YOU ARE ADVISED THAT WE RECENTLY HAVE DECIDED TO MODIFY THE PROCEDURE TO BE FOLLOWED IN THE HANDLING OF MILITARY PAY CLAIMS IN WHICH THE CLAIMANT IS ALSO A PETITIONER IN THE COURT OF CLAIMS AND A MOTION TO DISMISS SUCH COURT ACTION HAS BEEN FILED IN THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF THE CLAIM.
B-141450, JUN. 23, 1964
TO KING AND KING:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1964, REFERRING TO OUR LETTER OF JUNE 1, 1964, RELATIVE TO THE CLAIM FOR ADJUSTMENT IN RETIRED PAY PREVIOUSLY FILED BY YOU ON BEHALF OF LEO EAD CLARK.
BY SETTLEMENT OF JANUARY 10, 1962, OUR OFFICE ALLOWED MR. CLARK THE ADJUSTMENT IN RETIRED PAY THEN CLAIMED BY HIM IN ACCORDANCE WITH THE COURT'S DECISION OF MAY 4, 1960, IN THE CASE OF FAGAN, ET AL. (GOVER) V. UNITED STATES, CT.CL.NO. 535-57. THAT ACTION WAS BASED ON THE MOTION TO DISMISS MR. CLARK'S THEN PENDING PETITION IN THE CASE OF JAMES BARNES, ET AL. V. UNITED STATES, CT.CL.NO. 500-59, WHICH MOTION WAS CONDITIONED ON SATISFACTORY SETTLEMENT OF HIS CLAIM FOR FAGAN (GOVER/-TYPE BENEFITS. WHILE THE SETTLEMENT AND CHECK WERE ISSUED TO MR. CLARK THROUGH YOUR OFFICE AND WERE ACCEPTED BY YOU FOR HIM, THE MOTION HAS NOT BEEN FILED WITH THE COURT. AT THAT TIME THE PETITION OF THOMAS FRANCIS CALLAHAN HAD NOT BEEN FILED IN COURT.
A SETTLEMENT HAVING BEEN ISSUED FOR INCREASED RETIRED PAY ON ONE LEGAL THEORY ON THE BASIS OF THE MOTION TO DISMISS HERETOFORE FILED BY YOU FOR THAT PURPOSE, A CLAIM FOR INCREASED RETIRED PAY ON ANOTHER LEGAL THEORY SUPPORTED BY THE SAME MOTION MAY NOT BE CONSIDERED BY US AS LONG AS THE CLAIMANT RETAINS THE BENEFITS OF SUCH SETTLEMENT.
UPON RETURN OF THE SETTLEMENT CHECK OR RECEIPT OF NOTIFICATION OF TERMINATION OF CLAIMANT'S STATUS AS A PETITIONER IN THE COURT OF CLAIMS, OUR OFFICE WILL AGAIN CONSIDER HIS CLAIM FOR INCREASED RETIRED PAY BASED ON LONGEVITY CREDIT FOR CONSTRUCTIVE TIME IN SHORT-TERM ENLISTMENTS UNDER THE DECISION OF FEBRUARY 14, 1964, IN THE CASE OF CALLAHAN V. UNITED STATES, CT.CL.NO. 349-62. IT SHOULD BE UNDERSTOOD, HOWEVER, THAT WE HAVE NOT YET DECIDED WHETHER OR NOT WE WILL FOLLOW THAT CASE AS A PRECEDENT.
ALSO, YOU ARE ADVISED THAT WE RECENTLY HAVE DECIDED TO MODIFY THE PROCEDURE TO BE FOLLOWED IN THE HANDLING OF MILITARY PAY CLAIMS IN WHICH THE CLAIMANT IS ALSO A PETITIONER IN THE COURT OF CLAIMS AND A MOTION TO DISMISS SUCH COURT ACTION HAS BEEN FILED IN THE DEPARTMENT OF JUSTICE TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF THE CLAIM. IN SUCH CASES IT IS NOW OUR PRACTICE TO NOTIFY THE CLAIMANT OF THE PROPOSED SETTLEMENT (RATHER THAN TO ISSUE A SETTLEMENT CHECK) AND TO REQUEST ADVICE AS TO WHETHER SETTLEMENT IN THE AMOUNT PROPOSED IS ACCEPTABLE. IF WE ARE NOTIFIED THAT THE PROPOSED SETTLEMENT IS NOT ACCEPTABLE, NO CHECK WILL BE ISSUED AND THE DEPARTMENT OF JUSTICE WILL BE NOTIFIED ACCORDINGLY. THIS CHANGE IN PROCEDURE IS BROUGHT TO YOUR ATTENTION AT THIS TIME SINCE, IF THE CHECK YOU ARE NOW HOLDING IS RETURNED AND FURTHER CONSIDERATION OF YOUR CLIENT'S CLAIM DOES NOT RESULT IN A SETTLEMENT TO HIS SATISFACTION, NO AMOUNT, INCLUDING THE AMOUNT OF THAT CHECK, WILL BE PAID ON THE CLAIM SO LONG AS HE IS A PETITIONER IN THE COURT OF CLAIMS.