B-145271, JUN. 14, 1961
Highlights
RETIRED: REFERENCE IS MADE TO YOUR LETTERS DATED MAY 23 AND 24. YOUR LETTERS INDICATE A BELIEF ON YOUR PART THAT FULL CONSIDERATION HAS NOT BEEN GIVEN ALL THE FACTS OF YOUR CASE AND THAT YOUR CLAIM WAS DISALLOWED UPON A BROAD SET OF PRINCIPLES RATHER THAN ITS ACTUAL MERITS. WAS NOT PAID TO YOU UNTIL 1958 HAS SOME BEARING ON YOUR CLAIM. YOUR CLAIM IS FOR THE AMOUNT WITHHELD FROM YOUR RETIRED PAY UNDER THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30. SUCH CLAIM WAS DISALLOWED BECAUSE THERE WAS NO PROVISION OF LAW IN EFFECT DURING THE PERIOD INVOLVED WHICH EXEMPTED YOU FROM THE RESTRICTIONS OF THE ECONOMY ACT. THE FACT THAT YOU DID NOT RECEIVE THE RETIRED PAY TO WHICH YOU WERE ENTITLED UNTIL SOME TIME AFTER THE RIGHT TO SUCH PAY ACCRUED.
B-145271, JUN. 14, 1961
TO FIRST LIEUTENANT J. P. FITZGERALD, AUS. RETIRED:
REFERENCE IS MADE TO YOUR LETTERS DATED MAY 23 AND 24, 1961, REQUESTING FURTHER CONSIDERATION OF THE CONCLUSIONS REACHED IN OUR DECISIONS OF MAY 2 AND 19, 1961, B-145271, TO YOU, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, DURING THE PERIOD JULY 6, 1944, TO JANUARY 6, 1945.
YOUR LETTERS INDICATE A BELIEF ON YOUR PART THAT FULL CONSIDERATION HAS NOT BEEN GIVEN ALL THE FACTS OF YOUR CASE AND THAT YOUR CLAIM WAS DISALLOWED UPON A BROAD SET OF PRINCIPLES RATHER THAN ITS ACTUAL MERITS. YOU ALSO APPEAR TO BE UNDER THE IMPRESSION THAT THE FACT THAT YOU RECEIVED NO RETIRED PAY UNTIL MORE THAN SIX YEARS AFTER YOUR RELEASE FROM ACTIVE DUTY IN 1944 AND THAT THE RETROACTIVE RETIRED PAY TO WHICH YOU BECAME ENTITLED UNDER THE RULING OF THE COURT IN THE CASE OF HAMRICK V. UNITED STATES, 120 CT. CL. 17, WAS NOT PAID TO YOU UNTIL 1958 HAS SOME BEARING ON YOUR CLAIM.
YOUR CLAIM IS FOR THE AMOUNT WITHHELD FROM YOUR RETIRED PAY UNDER THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. SUCH CLAIM WAS DISALLOWED BECAUSE THERE WAS NO PROVISION OF LAW IN EFFECT DURING THE PERIOD INVOLVED WHICH EXEMPTED YOU FROM THE RESTRICTIONS OF THE ECONOMY ACT. THE FACT THAT YOU DID NOT RECEIVE THE RETIRED PAY TO WHICH YOU WERE ENTITLED UNTIL SOME TIME AFTER THE RIGHT TO SUCH PAY ACCRUED, FURNISHES NO BASIS FOR THE PAYMENT OF OTHER RETIRED PAY WHICH IS BARRED BY THE ECONOMY ACT. WHILE SUCH DELAY COULD HAVE GIVEN RISE TO A RIGHT TO INTEREST IF THE CONGRESS HAD SO PROVIDED, INTEREST ON A CLAIM AGAINST THE UNITED STATES MAY NOT BE ALLOWED EVEN BY THE UNITED STATES COURT OF CLAIMS, IN THE ABSENCE OF A CONTRACT OR ACT OF CONGRESS PROVIDING FOR THE PAYMENT THEREOF. SEE 28 U.S.C. 2516. ACCORDINGLY, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.
OUR DECISIONS OF MAY 2 AND 19, 1961, WERE BASED ON A FULL CONSIDERATION OF ALL THE RELEVANT FACTS INVOLVED. SUCH DECISIONS WERE CORRECT AND WE ADHERE TO THE CONCLUSION REACHED THEREIN.