B-108564, FEB. 3, 1956

B-108564, FEB. 3, 1956

TO MR. THOMAS R. TRICHLER:

THERE HAS BEEN CONSIDERED A LETTER DATED SEPTEMBER 20, 1955, FROM MR. PAUL R. HARMEL REQUESTING REVIEW OF THE ACTION TAKEN IN SETTLEMENT DATED JANUARY 18, 1955, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE RETIREMENT PAY FROM DECEMBER 7, 1946, TO MARCH 19, 1947, AND FROM AUGUST 13 TO SEPTEMBER 1, 1947, INCIDENT TO YOUR SERVICE AS A CAPTAIN, ARMY OF THE UNITED STATES.

IN MR. HARMEL'S LETTER OF SEPTEMBER 20, 1955, IT IS SUGGESTED THAT THE FACTS IN YOUR CASE ARE SIMILAR TO THOSE CONSIDERED BY THE COURT OF CLAIMS IN THE CASE OF HIETT V. UNITED STATES, 131 C.CLS. 585 (DECIDED APRIL 5, 1955), WHERE THE COURT HELD THAT THE PLAINTIFF WAS ENTITLED TO RETIREMENT PAY RETROACTIVELY TO THE DATE OF RELEASE FROM ACTIVE DUTY, NOTWITHSTANDING A PRIOR ACCEPTANCE BY THE PLAINTIFF OF A SETTLEMENT UNDER SUBSECTION 207 (B) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (B) COVERING A LATER PERIOD. THERE IS NOW PENDING BEFORE THE COURT OF CLAIMS A PETITION FILED BY YOUR ATTORNEY FOR RETIREMENT PAY FROM DECEMBER 7, 1947 (DECEMBER 7, 1946) TO OCTOBER 1, 1951 (SEPTEMBER 30, 1951), EXCEPT FOR THE PERIOD FROM MARCH 19 TO AUGUST 12, 1947, LESS THE AMOUNT OF DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION DURING THAT PERIOD. GENERALLY, IT IS NOT PROPER FOR US TO SETTLE A CLAIM AGAINST THE GOVERNMENT WHERE THE CLAIMANT IS PROSECUTING THE SAME CLAIM IN THE COURTS (33 COMP. GEN. 479) UNLESS A MOTION TO DISMISS THE COURT OF CLAIMS SUIT IS FILED WITH A VIEW TO HAVING SUCH MOTION HELD IN ESCROW PENDING CLAIMS ACTION BY US.

WHILE AN EXAMINATION OF THE HIETT CASE DISCLOSES THAT IT IS SIMILAR IN SOME RESPECTS TO YOUR CASE, THERE ALSO APPEAR TO BE FUNDAMENTAL DISTINGUISHING FEATURES, MAKING IT DOUBTFUL THAT THE RULE OF THAT CASE IS FOR APPLICATION HERE AND EVEN IF IT COULD BE CONCLUDED THAT THE DECISION IN THAT CASE WOULD WARRANT PAYMENT OF YOUR CLAIM FOR THE PERIOD AUGUST 13 TO 31, 1947, THE REMAINDER OF YOUR CLAIM WOULD BE DOUBTFUL. YOUR RECORD HAS BEEN CORRECTED TO SHOW THAT YOU WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON AUGUST 12, 1947. SINCE RETIREMENT PAY IS CLAIMED FOR A PERIOD PRIOR TO THAT DATE, THERE APPEARS TO BE FOR CONSIDERATION THE CASE OF NICKELL V. UNITED STATES, 123 C.CLS. 859. IN THAT CASE IT WAS HELD THAT AN OFFICER WHO WAS RELIEVED FROM ACTIVE DUTY NOT BY REASON OF PHYSICAL DISABILITY AND WHO WAS SUBSEQUENTLY RECALLED AND THEN AGAIN RELEASED, BUT THIS TIME BY REASON OF PHYSICAL DISABILITY, WAS ENTITLED TO RETROACTIVE RETIREMENT PAY ONLY FROM THE DATE OF RELEASE BY REASON OF PHYSICAL DISABILITY. WHILE SOME OF THE FACTS INVOLVED IN THE NICKELL CASE ARE NOT PRESENT IN YOUR CLAIM, THE HOLDING IN THAT CASE AND THE FACT THAT YOUR RECORDS HAVE BEEN CORRECTED TO SHOW THAT YOU WERE RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON AUGUST 12, 1947, GIVE RISE TO DOUBTS AS TO YOUR RIGHTS UNDER THE LAW. ACCORDINGLY, ON THE PRESENT RECORD WE WOULD NOT BE JUSTIFIED IN ALLOWING RETIREMENT PAY FOR ANY PORTION OF THE PERIOD CLAIMED.