B-157621, DEC. 14, 1965

B-157621, DEC. 14, 1965

TO MAJOR ROBERT C. ELLIS, A.U.S., RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 26, 1965, WITH ENCLOSURE, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED APRIL 7, 1965, IN WHICH YOU WERE ALLOWED THE SUM OF $421.96 REPRESENTING AN ADJUSTMENT OF RETIRED PAY FOR THE DIFFERENCE BETWEEN RETIRED PAY ENTITLEMENT AND AMOUNT OF VETERANS COMPENSATION PAID TO YOU FOR THE PERIOD MAY (JUNE) 1, 1958, THROUGH SEPTEMBER 30, 1964, $362.89 OF WHICH WAS APPLIED TO PARTIALLY LIQUIDATE YOUR REPORTED INDEBTEDNESS IN THE SUM OF $1,338.72 REPRESENTING CONCURRENT PAYMENTS OF RETIRED PAY BY THE DEPARTMENT OF THE ARMY AND DISABILITY COMPENSATION BY THE VETERANS ADMINISTRATION WHICH WERE NOT PAYABLE AT THE SAME TIME.

THE RECORD SHOWS THAT YOU WERE PAID THE SUM OF $663.14 REPRESENTING VETERANS ADMINISTRATION COMPENSATION PAYMENT AT THE MONTHLY RATE OF $73.14 FOR THE PERIOD JUNE 29, 1948, TO MARCH 31, 949; THAT YOU WERE PLACED ON THE RETIRED LIST BY DEPARTMENT OF THE ARMY LETTER ORDER DATED MARCH 24, 1949, WITH ENTITLEMENT TO RETIRED PAY RETROACTIVELY TO JUNE 29, 1948, UNDER TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087; THAT IN ORDER TO RECEIVE THE RETIRED PAY IN LIEU OF COMPENSATION PAYMENTS FROM THE VETERANS ADMINISTRATION IT WAS NECESSARY FOR YOU TO REFUND THE SUM OF $663.14 TO THE VETERANS ADMINISTRATION FOR PAYMENTS RECEIVED FOR THE PERIOD JUNE 29, 1948, THROUGH MARCH 31, 1949, WHICH YOU DID; THAT YOU WERE THEN PAID RETIRED PAY IN THE TOTAL AMOUNT OF $1,338.72 FOR THE PERIOD JUNE 29, 1948, THROUGH AUGUST 31, 1949; THAT BY ORDERS DATED OCTOBER 31, 1949, THE ORDERS OF MARCH 24, 1949, WERE REVOKED AS HAVING BEEN ISSUED IN ERROR AND VETERANS ADMINISTRATION PAYMENTS WERE REINSTATED; THAT THE DEPARTMENT OF THE ARMY REQUESTED THE VETERANS ADMINISTRATION TO SEND IT A CHECK FOR VETERANS ADMINISTRATION COMPENSATION TO LIQUIDATE THE RETIRED PAY IN THE SUM OF $1,338.72 BUT THAT AGENCY DID NOT COMPLY WITH THIS REQUEST AND INSTEAD PAID YOU THE SUM OF $1,028.84. THUS, YOU HAVE BEEN PAID RETIRED PAY IN THE SUM OF $1,338.72 AND VETERANS ADMINISTRATION COMPENSATION IN THE SUM OF $1,028.84 FOR THE SAME PERIOD.

BY ORDERS DATED MAY 12, 1953, YOU WERE REINSTATED ON THE RETIRED LIST WITH RETIRED PAY EFFECTIVE FROM JUNE 29, 1948. OF THE AMOUNT ALLOWED BY THE SETTLEMENT OF APRIL 7, 1965, $362.89 WAS APPLIED TO PARTIALLY LIQUIDATE WHAT WAS BELIEVED TO BE AN OVERPAYMENT OF RETIRED PAY IN THE SUM OF $1,338.72 FOR THE PERIOD JUNE 29, 1948, TO AUGUST 31, 1949, AND THE SUM OF $59.07 WAS CREDITED TO YOUR TAX ACCOUNT. THIS WAS ON THE BASIS THAT YOU HAD WAIVED YOUR RETIRED PAY IN FAVOR OF THE VETERANS ADMINISTRATION COMPENSATION FOR THE SAME PERIOD. HOWEVER, IT APPEARS THAT THE SUM OF $1,028.84 REPRESENTING THE VETERANS ADMINISTRATION COMPENSATION PAID TO YOU FOR THE PERIOD JUNE 29, 1948, TO AUGUST 31, 1949, CONSTITUTED THE ERRONEOUS PAYMENT INSTEAD OF RETIRED PAY IN THE SUM OF $1,338.72 SINCE WAIVER OF RETIRED PAY PAYABLE UNDER TITLE III OF THE 1948 ACT WAS WITHOUT EFFECT FOR ANY PERIOD PRIOR TO MAY 1, 1958, THE EFFECTIVE DATE OF PUBLIC LAW 85-376, 72 STAT. 86, 38 U.S.C. 3105. THEREFORE, THE SUM OF $1,028.84 WILL BE CONSIDERED THE OVERPAYMENT INSTEAD OF $1,338.72. ALSO, SINCE THE CLAIM WAS NOT FILED UNTIL MARCH 10, 1964, CLAIM FOR UNDERPAYMENTS FOR PERIOD PRIOR TO MARCH 10, 1954, IS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237.

A COMPUTATION OF YOUR PAY ACCOUNT IS AS FOLLOWS:

CHART PAID VA COMPENSATION 6/29/48 - 3/31/49 AT $73.14 $ 663.14 REFUNDED BY YOU

DO. DO. DO. DO. 663.14 PAID RETIRED PAY 6/29/48 -8/31/49

1,338.72 PAID VA COMPENSATION DO. DO. OVERPAYMENT 1,028.84 PAID VA COMPENSATION 3/10/54 - 3/31/55 AT 90.63 1,151.00 DUE RETIRED PAY

DO. DO. DO. 106.04 1,346.69

UNDERPAYMENT 195.69 PAID VA COMPENSATION 4/1/55 - 9/30/57 AT90.63 2,718.90 DUE RETIRED PAY DO. DO. DO. 117.82 3,534.60

UNDERPAYMENT 815.70 PAID VA COMPENSATION 10/1/57 - 4/30/58 AT 118.19 827.33 DUE RETIRED PAY DO. DO. DO. 117.82 824.74

OVERPAYMENT 2.59 MAY 1, 1958, WAIVER AUTHORITY ESTABLISHED. PAID VA COMPENSATION 5/1/58 - 5/31/58 AT 118.19 118.19

CORRECTLY PAID PAID VA COMPENSATION 6/1/58 - 9/30/62 AT 118.19 6,145.88 CREDITED RETIRED PAY ON DO. DO. DO. 6.70 348.40 SETTLEMENT OF APRIL 7, 1965 6,494.28

CORRECTLY CREDITED PAID VA COMPENSATION 10/1/62 - 10/31/62 AT 146.00 146.00

CORRECTLY PAID PAID VA COMPENSATION 11/1/62 - 9/30/63 AT 125.00 1,375.00

CORRECTLY PAID PAID VA COMPENSATION 10/1/63 - 9/30/64 AT 125.00 1,500.00 CREDITED RETIRED PAY ON DO. DO. DO. 6.13 73.56 SETTLEMENT OF APRIL 7, 1965 1,573.56

CORRECTLY CREDITED RECAPITULATION --------------

OVERPAYMENTS UNDERPAYMENTS

$1,028.84 $ 195.69

2.59 815.70 ---------

--------- $1,031.43

$1,011.39 MINUS 362.89 OVERPAYMENT REDUCED

-------------- BY CLAIMS DIVISION $1,011.39

SETTLEMENT MINUS 668.54

$ 668.54 REMAINING OVERPAID $ 342.85 REMAINING

UNDERPAID

ACCORDINGLY, SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE SUM OF $342.85.