B-144253, APR. 4, 1961

B-144253, APR. 4, 1961

TO LIEUTENANT COMMANDER BERTRAM P. MONTAGRIFF:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1961, AND ENCLOSURE (COPY OF DECISION OF DECEMBER 1, 1960, IN THE CASE OF REX I. HEINLEIN, JR. V. UNITED STATES, CT.CL.NO. 459-59) CONCERNING YOUR RETIRED PAY STATUS.

IN JUNE 1960, PURSUANT TO GENERAL ACCOUNTING OFFICE CLAIMS DIVISION CERTIFICATION, YOU WERE ALLOWED INCREASED RETIRED PAY BELIEVED TO HAVE ACCRUED TO YOU UNDER THE RULE OF THE PHELAN DECISION (COURT OF CLAIMS NO. 50-57) OF JUNE 3, 1959, WHICH THIS OFFICE, IN OUR DECISION OF SEPTEMBER 3, 1959, B-131700, 39 COMP. GEN. 152, DECIDED TO FOLLOW AS A PRECEDENT IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. THE HOLDING IN OUR DECISION OF SEPTEMBER 3, 1959, TO ACCEPT AS A PRECEDENT THE "RE RETIREMENT" CONCEPT OF THE COURT OF CLAIMS AS REFLECTED IN THE BAILEY, TRAVIS AND PHELAN DECISIONS WITH RESPECT TO THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 825, RESTED ON THE FACT THAT THOSE PLAINTIFFS HAD SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND THEREFORE, BY VIRTUE OF THE COURT OF CLAIMS HOLDING IN OTHER CASES, WERE ENTITLED TO THE "RE-RETIREMENT" BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115.

IN THE ABSENCE OF SERVICE PRIOR TO NOVEMBER 12, 1918, THE PROVISIONS OF PARAGRAPH 4, SECTION 15, ARE NOT FOR APPLICATION AND IT IS OUR VIEW THAT IN SUCH A CASE THE "RE-RETIREMENT" RULE OF THE BAILEY, TRAVIS AND PHELAN CASES PROPERLY MAY NOT BE APPLIED. SINCE THE RECORD SHOWS THAT YOU DID NOT SERVE IN THE MILITARY FORCES OF THE UNITED STATES AT ANY TIME PRIOR TO NOVEMBER 12, 1918, YOU WERE ADVISED IN CLAIMS DIVISION LETTER OF DECEMBER 6, 1960, THAT THE SETTLEMENT STATED IN YOUR FAVOR IN JUNE 1960 WAS ERRONEOUS AND THE AMOUNT THEREOF SHOULD BE REFUNDED BY YOU. THE ACTION TAKEN IN THAT LETTER IS SUSTAINED.

THE JUDICIAL PROCEEDINGS IN THE HEINLEIN CASE TO WHICH YOU REFER (HEINLEIN, LIKE YOURSELF, NOT HAVING SERVED PRIOR TO NOVEMBER 12, 1918) ARE NOT YET FINAL AND SINCE THE SAME ISSUES RAISED IN THAT CASE ARE AGAIN BEFORE THE COURT IN ANOTHER CASE, THE HEINLEIN DECISION MAY NOT SERVE AS A PRECEDENT. IT APPEARS PERTINENT TO OBSERVE THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN RELATION TO SIMILAR MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THIS OFFICE AS PRECEDENTS IN CONNECTION WITH THE SETTLEMENT OF CLAIMS NOT INVOLVED IN THE COURT ACTION. 14 COMP. GEN. 648; 31 COMP. GEN. 73.