B-123216, FEB. 2, 1956

B-123216, FEB. 2, 1956

TO MR. AND MRS. WILBUR D. CAMPBELL:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 29, 1955, WRITTEN IN YOUR BEHALF BY MR. VINCENT P. DESMOND, ATTORNEY AT LAW, REQUESTING FURTHER CONSIDERATION OF OUR DECISION OF DECEMBER 13, 1955, B-123216, TO YOU, WHICH SUSTAINED THE ACTION PREVIOUSLY TAKEN HERE IN DENYING PAYMENT OF RETIRED PAY TO THE ESTATE OF SHERMAN L. ZEA, DECEASED, FOR ANY PERIOD PRIOR TO JULY 14, 1944, INCIDENT TO HIS STATUS AS A CAPTAIN, UNITED STATES MARINE CORPS, RETIRED.

IN THE DECISION YOU WERE ADVISED THAT HAD CAPTAIN ZEA MADE INQUIRY REGARDING HIS RETIRED PAY DURING HIS LIFETIME HE COULD HAVE BEEN PAID ONLY SUCH PAY AS WAS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND THAT AS LONG AS HE WAS LIVING AND OTHERWISE CAPABLE OF RECEIVING HIS RETIRED PAY, HE WAS THE ONLY PERSON TO WHOM THAT PAY PROPERLY COULD BE PAID. YOU WERE ALSO ADVISED THAT HIS RIGHT TO SUCH PAY IS CONSIDERED AS HAVING ACCRUED TO HIM FROM DAY TO DAY (ANDERSON V. UNITED STATES, 92 C.CLS. 308), AND THAT IMMEDIATELY PRIOR TO HIS DEATH THE ONLY CLAIM HE HAD WHICH COULD HAVE BEEN RECOGNIZED BY OUR OFFICE WAS A CLAIM FOR RETIRED PAY FOR THE TEN YEARS IMMEDIATELY PRECEDING THE DATE OF RECEIPT OF ANY SUCH CLAIM IN THE GENERAL ACCOUNTING OFFICE. OF COURSE, ANY SUCH CLAIM WOULD NECESSARILY HAVE TO BE THE ASSERTION OF A PRESENT DEMAND. SEE WERNER V. UNITED STATES, 86 F.2D 113. YOU WERE FURTHER ADVISED THAT WE COULD SEE NO BASIS FOR CONCLUDING THAT A REPRESENTATIVE OF CAPTAIN ZEA'S ESTATE CLAIMING AMOUNTS DUE THAT ESTATE IS ENTITLED TO BE PAID RETIRED PAY DURING A PERIOD FOR WHICH EVEN THE DECEDENT, AT THE DATE OF HIS DEATH, COULD NOT HAVE OBTAINED SUCH PAY.

THE MERITS OF YOUR CLAIM AND THE LEGAL PRINCIPLES APPLICABLE, TOGETHER WITH THE ARGUMENTS ADVANCED IN THE BRIEF SUBMITTED JOINTLY BY MR. DESMOND AND MR. VAN DYKE, WERE FULLY CONSIDERED AT THE TIME THE DECISION OF DECEMBER 13, 1955, WAS WRITTEN. THE CONTENTS OF MR. DESMOND'S LETTER AND OF A RECENT COMMUNICATION FROM MR. VAN DYKE HAVE BEEN CAREFULLY CONSIDERED BUT CONTAIN NO MATERIAL INFORMATION OR FACT NOT PREVIOUSLY FULLY CONSIDERED AND, THEREFORE, AFFORD NO BASIS FOR ANY MODIFICATION OF THE CONCLUSIONS REACHED IN SUCH DECISION. ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN IN THE MATTER MUST BE AFFIRMED.

RESPECTING THE REQUEST FOR INFORMATION CONCERNING THE RETIRED PAY CAPTAIN ZEA WOULD HAVE BEEN ENTITLED TO RECEIVE DURING THE PERIOD OCTOBER 1, 1937, TO JULY 13, 1944, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 28, 1931, 46 STAT. 1440, HE WAS ENTITLED TO RETIRED PAY AT THE RATE OF 2 1/2 PERCENT OF HIS ACTIVE-DUTY PAY MULTIPLIED BY THE NUMBER OF YEARS' SERVICE FOR WHICH ENTITLED TO CREDIT IN THE COMPUTATION OF HIS PAY ON THE ACTIVE LIST, OR 21 YEARS. ON THAT BASIS, HE WOULD HAVE BEEN ENTITLED TO RETIRED PAY AT THE RATE OF $177.19 A MONTH FOR THE PERIOD IN QUESTION.