B-151004, JUN. 28, 1963

B-151004: Jun 28, 1963

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RA: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. WHICH WAS RENDERED IN FAVOR OF THE PLAINTIFF ON MARCH 6. THIS MATTER WAS ALSO THE SUBJECT OF YOUR RECENT TELEPHONE CONVERSATION WITH OUR GENERAL COUNSEL. IS INCONCLUSIVE. THAT HOLDING IS CONTRARY TO THE RESULT REACHED BY US IN 36 COMP. THE PERIOD FOR REQUESTING FURTHER PROCEEDINGS IN THE WASHBURN CASE HAS NOT EXPIRED AND WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT A MOTION FOR THE COURT TO RECONSIDER ITS DECISION IN THE CASE HAS BEEN FILED. WE MAY NOT PROPERLY APPLY THE DECISION IN THAT CASE TO MATTERS BEFORE US IN ANY EVENT UNTIL SUCH PERIOD HAS EXPIRED OR WE ARE ADVISED BY THE ATTORNEY GENERAL THAT NO FURTHER PROCEEDINGS WILL BE TAKEN IN THE MATTER.

B-151004, JUN. 28, 1963

TO SERGEANT WILLIAM D. CAMERON, RA:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1963, TO THE COMPTROLLER GENERAL ENCLOSING A LETTER DATED MARCH 28, 1963, FROM OUR CLAIMS DIVISION ADVISING YOU THAT ACTION ON YOUR REQUEST FOR RELIEF FROM LIABILITY FOR THE AMOUNTS PAID TO YOU AS READJUSTMENT PAY WOULD BE HELD IN ABEYANCE PENDING THE CONCLUSION OF JUDICIAL PROCEEDINGS IN A CASE CONCERNING A QUESTION OF ENTITLEMENT TO SUCH PAY IN CIRCUMSTANCES SIMILAR TO THOSE IN YOUR CASE. YOU CITE THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WASHBURN V. UNITED STATES, CT.CL. NO. 11-62, WHICH WAS RENDERED IN FAVOR OF THE PLAINTIFF ON MARCH 6, 1963, AS OVERRULING OUR DECISION OF AUGUST 17, 1956. 36 COMP. GEN. 129, AND ASK THAT YOUR CASE NOW BE GIVEN OUR IMMEDIATE CONSIDERATION IN VIEW OF THE UNDUE HARDSHIP CAUSED YOU BY DEDUCTIONS CURRENTLY BEING MADE FROM YOUR PAY BY THE ARMY ON THE BASIS OF OUR DECISION. THIS MATTER WAS ALSO THE SUBJECT OF YOUR RECENT TELEPHONE CONVERSATION WITH OUR GENERAL COUNSEL, MR. ROBERT F. KELLER.

IN ITS OPINION IN THE WASHBURN CASE THE COURT OF CLAIMS HELD THAT ALTHOUGH THE LEGISLATIVE HISTORY OF SECTION 265 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, AS ADDED BY THE ACT OF JULY 9, 1956, CH. 534, 70 STAT. 517, IS INCONCLUSIVE, THE CONGRESS BY THE USE OF THE LANGUAGE OF THE SECTION INTENDED THAT A MEMBER OF A RESERVE COMPONENT, INVOLUNTARILY RELEASED FROM ACTIVE DUTY, SHOULD BE PERMITTED TO COMBINE SERVICE IN A REGULAR COMPONENT WITH SERVICE IN A RESERVE COMPONENT IN DETERMINING ELIGIBILITY FOR READJUSTMENT PAY. AS STATED BY YOU, THAT HOLDING IS CONTRARY TO THE RESULT REACHED BY US IN 36 COMP. GEN. 129. HOWEVER, THE PERIOD FOR REQUESTING FURTHER PROCEEDINGS IN THE WASHBURN CASE HAS NOT EXPIRED AND WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT A MOTION FOR THE COURT TO RECONSIDER ITS DECISION IN THE CASE HAS BEEN FILED. WE MAY NOT PROPERLY APPLY THE DECISION IN THAT CASE TO MATTERS BEFORE US IN ANY EVENT UNTIL SUCH PERIOD HAS EXPIRED OR WE ARE ADVISED BY THE ATTORNEY GENERAL THAT NO FURTHER PROCEEDINGS WILL BE TAKEN IN THE MATTER.

IN THIS CONNECTION YOU MAY BE ADVISED THAT ALTHOUGH WE GIVE COURT OF CLAIMS DECISIONS CAREFUL CONSIDERATION THEY ARE NOT BINDING ON OUR OFFICE (14 COMP. GEN. 648, 31 ID. 73) AND WE HAVE RECEIVED A REQUEST FROM THE DEPARTMENT OF DEFENSE FOR A FORMAL DECISION AS TO WHETHER WE WILL FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE WASHBURN CASE IN THE SETTLEMENT OF SIMILAR CASES. UPON RECEIPT OF NOTIFICATION FROM THE DEPARTMENT OF JUSTICE OF THE CONCLUSION OF THE JUDICIAL PROCEEDINGS, FURTHER CONSIDERATION WILL BE GIVEN TO THE REQUEST FOR A FORMAL DECISION AS WELL AS TO YOUR INDIVIDUAL CASE AND YOU WILL BE NOTIFIED OF OUR DETERMINATIONS IN THE MATTER.

THE WITHHOLDING OF AMOUNTS FROM A MEMBER'S PAY FOR LIQUIDATION OF HIS STATED INDEBTEDNESS TO THE UNITED STATES IS PRIMARILY A MATTER FOR ADJUSTMENT BETWEEN THE MEMBER AND THE SERVICE CONCERNED. IN VIEW OF YOUR STATEMENT AS TO YOUR PRESENT FINANCIAL CIRCUMSTANCES, HOWEVER,WE WOULD HAVE NO OBJECTION TO SUSPENSION OR REDUCTION BY THE DEPARTMENT OF THE ARMY OF THE WITHHOLDINGS NOW BEING MADE FROM YOUR PAY ON ACCOUNT OF THE READJUSTMENT PAYMENT MADE TO YOU PENDING COMPLETION OF JUDICIAL PROCEEDINGS IN THE WASHBURN CASE AND THE ISSUANCE OF OUR DECISION IN CONNECTION THEREWITH.