B-177619, FEB 14, 1973

B-177619: Feb 14, 1973

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IT IS THE LONG STANDING RULE OF GAO NOT TO ACT ON MATTERS WHICH ARE IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. SINCE BOTH CAPTAIN JOHNSON AND CAPTAIN WISE HAVE FILED SUITS IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FOR READJUSTMENT PAY. ACTION IN THESE AND SIMILAR CASES MUST BE WITHHELD UNTIL THE QUESTION AS TO WHETHER THE RELEASES FROM ACTIVE DUTY WERE VOLUNTARY OR INVOLUNTARY HAS BEEN FINALLY SETTLED BY THE COURTS. WHICH WAS FORWARDED HERE BY LETTER DATED DECEMBER 8. REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF READJUSTMENT PAY TO CAPTAIN EUGENE D. YOU SAY THAT CAPTAIN JOHNSON WAS RELEASED FROM ACTIVE DUTY ON AUGUST 1.

B-177619, FEB 14, 1973

MILITARY PERSONNEL - READJUSTMENT ALLOWANCES - MATTERS IN LITIGATION DECISION REGARDING THE PAYMENT OF READJUSTMENT PAY TO CAPTAINS EUGENE D. JOHNSON AND RALPH L. WISE, USMCR, UPON THEIR RELEASE FROM ACTIVE DUTY. IT IS THE LONG STANDING RULE OF GAO NOT TO ACT ON MATTERS WHICH ARE IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. SINCE BOTH CAPTAIN JOHNSON AND CAPTAIN WISE HAVE FILED SUITS IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FOR READJUSTMENT PAY, ACTION IN THESE AND SIMILAR CASES MUST BE WITHHELD UNTIL THE QUESTION AS TO WHETHER THE RELEASES FROM ACTIVE DUTY WERE VOLUNTARY OR INVOLUNTARY HAS BEEN FINALLY SETTLED BY THE COURTS. ACCORDINGLY, PAYMENT OF READJUSTMENT PAY TO CAPTAIN JOHNSON AND CAPTAIN WISE SHOULD BE HELD IN ABEYANCE PENDING A JUDICIAL DETERMINATION OF THEIR CASES.

TO MAJ. F. D. BRADY:

THIS REFERS TO YOUR LETTER DATED NOVEMBER 30, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED DECEMBER 8, 1972, HEADQUARTERS UNITED STATES MARINE CORPS, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF READJUSTMENT PAY TO CAPTAIN EUGENE D. JOHNSON, 130 82 29 37, AND CAPTAIN RALPH L. WISE, 570 52 54 23, UNITED STATES MARINE CORPS RESERVE. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-1179 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT CAPTAIN JOHNSON WAS RELEASED FROM ACTIVE DUTY ON AUGUST 1, 1972, UPON COMPLETION OF HIS TOUR OF ACTIVE DUTY AFTER HAVING SERVED ON ACTIVE DUTY CONTINUOUSLY FOR 5 YEARS, 10 MONTHS AND 19 DAYS. ON AUGUST 11, 1971, HE SUBMITTED A REQUEST TO BE AUGMENTED INTO THE REGULAR MARINE CORPS. HE WAS CONSIDERED FOR AUGMENTATION AND ALSO FOR EXTENSION OF ACTIVE DUTY ALTHOUGH HE NEVER VOLUNTEERED FOR EXTENDED ACTIVE DUTY. HOWEVER, HE WAS NOT SELECTED FOR AUGMENTATION OR EXTENSION OF ACTIVE DUTY.

CAPTAIN WISE WAS RELEASED FROM ACTIVE DUTY ON NOVEMBER 15, 1971, UPON COMPLETION OF 5 YEARS, 1 MONTH AND 11 DAYS OF CONTINUOUS ACTIVE DUTY. JUNE 30, 1971, HE REQUESTED AUGMENTATION INTO THE REGULAR MARINE CORPS BUT NEVER VOLUNTEERED FOR EXTENDED ACTIVE DUTY. HE WAS NOT SELECTED FOR AUGMENTATION OR EXTENSION OF ACTIVE DUTY.

THE MEMBERS WERE NOT PAID READJUSTMENT PAY PURSUANT TO 10 U.S.C. 687(A) BECAUSE THEIR SEPARATIONS WERE CONSIDERED TO HAVE BEEN VOLUNTARY. EACH OFFICER HAS FILED A PETITION IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. IN THE LITIGATION REPORT PREPARED ON THE CASE OF CAPTAIN JOHNSON BY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY IT WAS SUGGESTED THAT THE PLAINTIFF WOULD LIKELY CONTEND THAT THE LETTER OF THE COMMANDANT OF THE MARINE CORPS DATED MARCH 2, 1972, INFORMING HIM THAT HE HAD NOT BEEN SELECTED FOR AUGMENTATION OR EXTENSION OF ACTIVE DUTY PRECLUDED ANY REQUIREMENT FOR A REQUEST FOR AN ADDITIONAL TOUR OF ACTIVE DUTY ON HIS PART. THE REPORT THUS RECOMMENDED SUBMISSION HERE FOR AN ADVANCE DECISION AS TO ENTITLEMENT TO READJUSTMENT PAY SO AS TO AVOID THE POSSIBILITY OF UNNECESSARY LITIGATION.

IT IS THE LONG STANDING RULE OF THIS OFFICE NOT TO ACT ON MATTERS WHICH ARE IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. SINCE BOTH CAPTAIN JOHNSON AND CAPTAIN WISE HAVE FILED SUITS IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FOR READJUSTMENT PAY, ACTION IN THESE AND SIMILAR CASES MUST BE WITHHELD UNTIL THE QUESTION AS TO WHETHER THE RELEASES FROM ACTIVE DUTY WERE VOLUNTARY OR INVOLUNTARY HAS BEEN FINALLY SETTLED BY THE COURTS. ACCORDINGLY, PAYMENT OF READJUSTMENT PAY TO CAPTAIN JOHNSON AND CAPTAIN WISE SHOULD BE HELD IN ABEYANCE PENDING A JUDICIAL DETERMINATION OF THEIR CASES.