B-129535, SEP. 5, 1957

B-129535, SEP. 5, 1957

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 28 AND JULY 11, 1957, AND PREVIOUS CORRESPONDENCE RELATIVE TO THE CLAIM OF MR. STEPHEN A. CHRISTIAN FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE INCIDENT TO MR. CHRISTIAN'S NAVAL SERVICE.

IN OUR DECISION OF JUNE 5, 1957, B-129535, TO YOU, WE STATED THAT: "* * * WHILE MR. CHRISTIAN MAY BE ENTITLED TO SOME ADJUSTMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 26, 1945, THROUGH OCTOBER 31, 1946, IRRESPECTIVE OF THE FINAL CONCLUSION IN THE TATO CASE (TATO V. UNITED STATES, C.CLS. NO. 139- 54, DECIDED NOVEMBER 7, 1956), YET IT MUST BE POINTED OUT THAT, IF THE GOVERNMENT SHOULD PREVAIL IN THAT CASE, THE AMOUNT DUE MR. CHRISTIAN (ASSUMING THAT HE WOULD BE OTHERWISE ENTITLED) WOULD BE AVAILABLE FOR OFFSET AGAINST THE PRESENTLY EXISTING OVERPAYMENT OF $4,095.76 IN HIS RETIRED PAY ACCOUNT FOR THE PERIOD NOVEMBER 1, 1946 THROUGH APRIL 30, 1955, INDICATED IN THE ADMINISTRATIVE (OFFICE) REPORT.'

IN YOUR LETTER OF JUNE 28, 1957, IT IS STATED THAT MR. CHRISTIAN ADVISES THAT THE INDEBTEDNESS HAS BEEN FULLY SATISFIED, THROUGH A LUMP SUM PAYMENT IN EXCESS OF $2,000 TO THE NAVY FINANCE CENTER AND THE BALANCE THROUGH WITHHOLDING FROM HIS MONTHLY RETIRED PAY. IN YOUR LETTER OF JULY 11, 1957, YOU CALL OUR ATTENTION TO THE FACT THAT THE TIME WITHIN WHICH THE GOVERNMENT COULD APPLY TO THE SUPREME COURT FOR A WRIT OF CERTIORARI IN THE TATO CASE HAS EXPIRED, AND YOU INQUIRE WHETHER OUR OFFICE WILL ACCEPT THE DECISION IN THAT CASE AS A PRECEDENT.

WE HAVE DECIDED NOT TO AUTHORIZE ANY DISBURSEMENT OF PUBLIC FUNDS IN OTHER SIMILAR CASES AT THIS TIME ON THE BASIS OF THE COURT'S DECISION DATED NOVEMBER 7, 1956, IN THE CASE OF TATO V. UNITED STATES, OUR DECISION BEING BASED, IN PART, ON OUR UNDERSTANDING THAT THE DEPARTMENT OF JUSTICE WILL AGAIN ARGUE BEFORE THE COURT OF CLAIMS ANOTHER CASE INVOLVING THE SAME PRINCIPLE. A FINAL DECISION AS TO THE ACTION WE WILL TAKE IN CASES OF THIS TYPE AWAITS THE COURT'S RULING ON THE ADDITIONAL ARGUMENTS WHICH THE DEPARTMENT OF JUSTICE EXPECTS TO ADVANCE IN THAT CASE.

IN VIEW OF YOUR ADVICE THAT THE INDEBTEDNESS HAS BEEN PAID, OUR CLAIMS DIVISION IS BEING ADVISED THAT UPON VERIFICATION OF THE PAYMENT, ADJUSTMENT OF MR. CHRISTIAN'S RETIRED PAY FOR THE PERIOD FROM OCTOBER 26, 1945, THROUGH OCTOBER 31, 1946, MAY BE MADE, AND A SETTLEMENT ISSUED IN HIS FAVOR FOR THE AMOUNT PROPERLY FOUND DUE.