B-133841, OCT. 30, 1957

B-133841, OCT. 30, 1957

TO KING AND KING, ATTORNEYS AT LAW:

THERE IS PRESENTED IN YOUR LETTER OF SEPTEMBER 11, 1957, YOUR REQUEST AS ATTORNEYS FOR NEWTON PRICE HOWELL, CHIEF YEOMAN, U.S. NAVY, RETIRED, THAT WE RECONSIDER THE ACTION TAKEN AUGUST 23, 1957, BY THE CLAIMS DIVISION OF THIS OFFICE IN CERTIFYING THE AMOUNT OF $1,266.02, FOR PAYMENT TO THE CLAIMANT, NEWTON P. HOWELL, REPRESENTING ADDITIONAL RETAINER AND RETIRED PAY DUE HIM FOR THE PERIOD FROM AUGUST 30, 1945, TO MARCH 31, 1949, INCLUSIVE.

THE CERTIFICATION OF AUGUST 23, 1957, ABOVE REFERRED TO, WAS BASED ON THE DECISION RENDERED JANUARY 9, 1951, BY THE COURT OF CLAIMS IN THE SANDERS CASE, 120 C.CLS. 501, AND THE AMOUNT, $1,266.02, THEREIN CERTIFIED REPRESENTS:

(1) THE DIFFERENCE IN ENLISTED RETAINER PAY BETWEEN THAT COMPUTED ON THE ONE-THIRD BASIS PLUS LONGEVITY AND THAT COMPUTED ON THE ONE HALF BASIS PLUS LONGEVITY FOR THE PERIOD AUGUST 30, 1945, TO JULY 31, 1946, INCLUSIVE, $258.27,

(2) THE DIFFERENCE IN COMMISSIONED WARRANT OFFICER RETIRED PAY BETWEEN THAT COMPUTED ON THE ONE-THIRD BASIS PLUS LONGEVITY AND THAT COMPUTED ON THE ONE-HALF BASIS PLUS LONGEVITY FOR THE PERIOD AUGUST 1, 1946, TO JANUARY 1, 1948, INCLUSIVE, $596.17, AND

(3) THE DIFFERENCE IN ENLISTED RETIRED PAY BETWEEN THAT COMPUTED ON THE ONE-THIRD BASIS PLUS LONGEVITY AND THAT COMPUTED ON THE ONE-HALF BASIS PLUS LONGEVITY FOR THE PERIOD JANUARY 2, 1948, TO MARCH 31, 1949, INCLUSIVE, $411.58.

YOU ASK FOR "WRITTEN PERMISSION" TO NEGOTIATE THE CHECK NOW IN YOUR POSSESSION. ALTHOUGH YOU HAVE NOT DESCRIBED SUCH CHECK, YOUR REQUEST IS PRESUMED TO REFER TO A CHECK WHICH YOU APPEAR TO HAVE RECEIVED DRAWN ON THE TREASURER OF THE UNITED STATES IN FAVOR OF NEWTON PRICE HOWELL IN THE AMOUNT OF $1,266.02, AS AUTHORIZED BY THE CERTIFICATION OF THIS OFFICE DATED AUGUST 23, 1957. YOUR REQUEST FOR RECONSIDERATION OF THE CERTIFICATION ACTION ABOVE REFERRED TO IS DIRECTED SPECIFICALLY TO THE PERIOD FROM JANUARY 2, 1948, TO MARCH 31, 1949, INCLUSIVE.

IN THAT CONNECTION, THE CONTENTION IS ADVANCED BY YOU THAT UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE CASE OF TATO V. UNITED STATES, C.CLS. NO. 139-54, DECIDED NOVEMBER 7, 1956, THE CLAIMANT, NEWTON PRICE HOWELL, WOULD BE ENTITLED TO RECEIVE RETIRED PAY FOR THE PERIOD JANUARY 2, 1948, TO MARCH 31, 1949, INCLUSIVE, COMPUTED ON THE BASIS OF ONE-HALF THE BASE PAY OF A COMMISSIONED OFFICER (I.E., AS A COMMISSIONED WARRANT OFFICER, UNDER TEN YEARS' CREDITABLE RECORD) PLUS LONGEVITY. YOU ALSO CONTEND THAT IN VIEW OF THE CONCLUSION REACHED BY THE COURT OF CLAIMS IN THE TATO DECISION OF NOVEMBER 7, 1956--- THAT TATO, A RETIRED COMMISSIONED WARRANT OFFICER OF THE NAVY, WAS NOT SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932--- THE CLAIMANT, NEWTON PRICE HOWELL, SHOULD NOT BE HELD BOUND BY THE ELECTION MADE BY HIM UNDER AUTHORITY OF SECTION 3 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505.

WE HAVE DECIDED NOT TO AUTHORIZE ANY DISBURSEMENT OF PUBLIC FUNDS SOLELY ON THE BASIS OF THE COURT OF CLAIMS HOLDING IN THE DECISION OF NOVEMBER 7, 1956, IN THE TATO CASE. SEE OUR LETTER, B-129535, DATED SEPTEMBER 5, 1957, TO YOU RELATIVE TO THE CLAIM OF MR. STEPHEN A. CHRISTIAN. ACCORDINGLY, NO FURTHER ADDITIONAL AMOUNT OF RETIRED PAY MAY BE CERTIFIED FOR PAYMENT TO NEWTON PRICE HOWELL, WITH RESPECT TO THE PERIOD JANUARY 2, 1948, TO MARCH 31, 1949, INCLUSIVE.

HOWEVER, SINCE IT APPEARS THAT THE CLAIMANT, NEWTON PRICE HOWELL, IS ENTITLED TO THE AMOUNT OF $1,266.02, REPRESENTING ADDITIONAL RETAINER AND RETIRED PAY DUE HIM FOR THE PERIOD FROM AUGUST 30, 1945, TO MARCH 31, 1949, INCLUSIVE, THE CHECK IN THAT AMOUNT WHICH YOU STATE IS IN YOUR POSSESSION MAY BE NEGOTIATED AT THIS TIME WITHOUT PREJUDICE TO FURTHER CONSIDERATION BY THIS OFFICE, IF THE NEED ARISES, OF THE QUESTION WHETHER HOWELL MAY RECEIVE RETIRED PAY FOR THE PERIOD JANUARY 2, 1948, TO MARCH 31, 1949, INCLUSIVE, ON THE BASIS OF THE RULE WHICH THE COURT OF CLAIMS ESTABLISHED IN THE TATO CASE.