B-64298, AUG. 18, 1960

B-64298: Aug 18, 1960

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KING: REFERENCE IS MADE TO YOUR CLAIM FORWARDED HERE BY MR. SUCH CLAIM WAS RECEIVED IN THIS OFFICE ON JUNE 20. THAT CLAIM WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 8. YOU WERE THEN SERVING IN THE HIGHER TEMPORARY GRADE OF SURGEON (GRADE OF MAJOR IN THE ARMY). WAS COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF YOUR PERMANENT GRADE OF SENIOR ASSISTANT SURGEON. IN THE CLAIM FILED IN DECEMBER 1946 YOU REQUESTED RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF THE HIGHER TEMPORARY GRADE OF SURGEON IN WHICH YOU WERE SERVING AT THE TIME OF RETIREMENT. WAS BASED ON THE VIEW THAT THE PHRASE "75 PER CENTUM OF HIS ACTIVE PAY AT THE TIME OF RETIREMENT" IN FORMER SECTION 211 (A).

B-64298, AUG. 18, 1960

TO DR. WILLIAM D. KING:

REFERENCE IS MADE TO YOUR CLAIM FORWARDED HERE BY MR. F. N. HEARN, AUTHORIZED CERTIFYING OFFICER, ON FORM PHS-1013-1, OFFICER'S PAY VOUCHER, PUBLIC HEALTH SERVICE, FOR INCREASED RETIRED PAY COVERING THE PERIOD JANUARY 1, 1946, TO JUNE 30, 1960. SUCH CLAIM WAS RECEIVED IN THIS OFFICE ON JUNE 20, 1960.

THE RECORD SHOWS THAT IN DECEMBER 1946 YOU PRESENTED A CLAIM FOR THE SAME INCREASE IN RETIRED PAY COVERING THE PERIOD JANUARY 1 TO JUNE 30, 1946. THAT CLAIM WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 8, 1947.

IT APPEARS THAT AT THE TIME OF YOUR RETIREMENT ON JANUARY 1, 1946, YOU HELD THE PERMANENT GRADE OF SENIOR ASSISTANT SURGEON CORRESPONDING TO THE GRADE OF CAPTAIN IN THE ARMY. (SECTION 206 (A), ACT OF JULY 1, 1944, 58 STAT. 684). HOWEVER, YOU WERE THEN SERVING IN THE HIGHER TEMPORARY GRADE OF SURGEON (GRADE OF MAJOR IN THE ARMY). YOUR RETIRED PAY COMMENCING JANUARY 1, 1946, WAS COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF YOUR PERMANENT GRADE OF SENIOR ASSISTANT SURGEON, UNDER AUTHORITY OF FORMER SECTION 211 (A) OF THE PUBLIC HEALTH SERVICE ACT APPROVED JULY 1, 1944, 58 STAT. 688, 42 U.S.C. 212 (A) (1946 EDITION) (REPEALED EFFECTIVE OCTOBER 1, 1949, BY SECTION 521 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 835).

IN THE CLAIM FILED IN DECEMBER 1946 YOU REQUESTED RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF THE HIGHER TEMPORARY GRADE OF SURGEON IN WHICH YOU WERE SERVING AT THE TIME OF RETIREMENT. THE SETTLEMENT OF AUGUST 8, 1947, DENYING YOUR CLAIM, WAS BASED ON THE VIEW THAT THE PHRASE "75 PER CENTUM OF HIS ACTIVE PAY AT THE TIME OF RETIREMENT" IN FORMER SECTION 211 (A), SUPRA,"MUST BE CONSIDERED AS RELATING TO THE PAY OF THE PERMANENT GRADE HELD BY AN OFFICER AT THE TIME OF HIS RETIREMENT AND NOT TO THE PAY OF A HIGHER TEMPORARY GRADE.'

SUBSEQUENTLY, THIS OFFICE IN 1955 CONCLUDED IN THE CASE OF A PUBLIC HEALTH SERVICE OFFICER WHO WAS RETIRED DECEMBER 1, 1949, UNDER THE PROVISIONS OF FORMER SECTION 211 (B) OF THE PUBLIC HEALTH SERVICE ACT (SEE 42 U.S.C. 212 (A), 1952 EDITION/--- AFTER COMPLETING 30 YEARS OF ACTIVE CREDITABLE SERVICE--- THAT THE PHRASE "75 PER CENTUM OF HIS ACTIVE PAY AT THE TIME OF RETIREMENT" REASONABLY COULD BE VIEWED AS AUTHORIZING RETIRED PAY COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF THE HIGHER TEMPORARY GRADE IN WHICH SERVING AT DATE OF RETIREMENT. YOUR PRESENT CLAIM IN EFFECT CONSTITUTES A REQUEST FOR RECONSIDERATION OF YOUR CASE UNDER THE 1955 HOLDING ABOVE REFERRED TO.

IT IS WELL SETTLED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY NOT REOPEN A SETTLEMENT OR REVERSE A DECISION MADE BY A PREDECESSOR IN OFFICE EXCEPT UPON THE PRODUCTION OF NEWLY DISCOVERED AND MATERIAL EVIDENCE, OR TO CORRECT MISTAKES OF FACT OR ERRORS IN CALCULATION OR FOR FRAUD OR COLLUSION. 11 COMP. DEC. 459; 17 COMP. GEN. 516. THE SETTLEMENT OF AUGUST 8, 1947, MADE DURING THE ADMINISTRATION OF A FORMER COMPTROLLER GENERAL OF THE UNITED STATES WAS NOT APPEALED BY YOU AND THUS BECAME FINAL. HENCE, NO ACTION MAY BE TAKEN NOW ON THAT PART OF YOUR PRESENT CLAIM WHICH COVERS THE PERIOD FROM JANUARY 1 TO JUNE 30, 1946.

HOWEVER, THE REMAINDER OF YOUR PRESENT CLAIM FOR INCREASED RETIRED PAY WILL BE CONSIDERED AS A NEW CLAIM FOR THE PERIOD JULY 1, 1946, TO JUNE 30, 1960, INCLUSIVE, SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH BAR CONSIDERATION OF ANY PORTION THEREOF WHICH DID NOT ACCRUE WITHIN TEN YEARS OF JUNE 20, 1960, THE DATE SUCH NEW CLAIM WAS RECEIVED IN THIS OFFICE. CF. 32 COMP. GEN. 107. ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED THIS DATE TO THE CLAIMS DIVISION OF THIS OFFICE TO STATE A SETTLEMENT IN YOUR FAVOR, IF OTHERWISE CORRECT, FOR THE AMOUNT OF INCREASED RETIRED PAY FOUND DUE YOU ON THE BASIS OF 75 PERCENTUM OF YOUR ACTIVE PAY AT THE TIME OF YOUR RETIREMENT FOR THE PERIOD FROM JUNE 20, 1950, TO JUNE 30, 1960, INCLUSIVE.