B-150267, FEB. 1, 1963

B-150267, FEB. 1, 1963

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1962, REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED OCTOBER 3, 1962, WHICH DENIED THE CLAIM OF ALVA JAMES SMITH FOR INCREASED DISABILITY RETIRED PAY BELIEVED TO BE DUE COMMENCING APRIL 1, 1955, UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, 823, AND THE CAREER INCENTIVE ACT OF 1955, CH. 20, 69 STAT. 18,ON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF FAGAN, ET AL. (GOVER, PLAINTIFF NO. 2) V. UNITED STATES, 149 CT.CL. 716.

THE COURT OF CLAIMS HELD IN AFLAGUE, ET AL. (FORSTER, PLAINTIFF NO. 13) V. UNITED STATES, CT.CL.NO. 212-56, AND COBB, ET AL. (ELLIS, PLAINTIFF NO. 2) V. UNITED STATES, CT.CL.NO. 430-56, DECIDED NOVEMBER 7, 1962, THAT A RIGHT TO THE BENEFITS OF AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 CAN ACCRUE ONLY (1) IN THE EVENT THE ELECTION IS MADE WITHIN THE 5-YEAR PERIOD THERE PRESCRIBED, OR (2) IN THE EVENT THE PERSON CONCERNED FAILED TO MAKE AN ELECTION BECAUSE OF ERRONEOUS INFORMATION FURNISHED BY THE ADMINISTRATIVE DEPARTMENT CONCERNED. MR. SMITH'S CLAIM APPEARS TO BE CONTROLLED BY THE HOLDING IN THE FORSTER AND ELLIS CASES, AND YOU ARE ADVISED THAT, IN THE ABSENCE OF SOME MODIFICATION OF SUCH HOLDING, WE FIND NO BASIS FOR THE ALLOWANCE OF HIS CLAIM.