B-153050, JUN. 29, 1964

B-153050, JUN. 29, 1964

TO LIEUTENANT ERNESTO TESALLA, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1964, REQUESTING REEXAMINATION OF YOUR RETIRED PAY RECORD RELATIVE TO YOUR CLAIM FOR THE SUM OF $229.95 DEDUCTED FROM YOUR RETIRED PAY ACCOUNT OF YOUR EMPLOYMENT OF THE UNITED STATES DURING THE PERIOD FEBRUARY 23 THROUGH APRIL 14, 1955, AT A RATE OF PAY IN EXCESS OF $3,000 A YEAR.

THE RECORD SHOWS THAT YOU SERVED IN THE ARMY AS AN ENLISTED MAN FROM MARCH 8, 1924, TO JULY 9, 1946, AND FROM JUNE 9, 1949, TO AUGUST 31, 1949, WHEN YOU WERE RETIRED AS A MASTER SERGEANT, HAVING SERVED ON ACTIVE DUTY AS AN OFFICER IN THE ARMY OF THE UNITED STATES FROM JULY 10, 1946, THROUGH JUNE 8, 1949. YOU LATER SERVED ON ACTIVE DUTY ON OCTOBER 3, 1950, AND FROM NOVEMBER 13, 1950, THROUGH OCTOBER 19, 1951. YOU WERE ADVANCED TO THE RANK OF FIRST LIEUTENANT ON THE RETIRED LIST EFFECTIVE FEBRUARY 23, 1955, WITH THE RIGHT TO RECEIVE RETIRED PAY BASED ON THAT RANK, UNDER THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 829.

SINCE YOUR SALARY AS A CIVILIAN EMPLOYEE EXCEEDED THE RATE OF $3,000 A YEAR, IT WAS DETERMINED UNDER THE DUAL COMPENSATION LAW (5 U.S.C. 59A) AS THEN INTERPRETED THAT YOU WERE NOT ENTITLED TO RETIRED PAY DURING THE PERIOD FROM FEBRUARY 23 THROUGH APRIL 14, 1955, AND HENCE THE SUM OF $229.95 WAS DEDUCTED FROM YOUR RETIRED PAY. UNDER SUBSEQUENT INTERPRETATIONS OF CERTAIN PROVISIONS OF LAW BY THE UNITED STATES COURT OF CLAIMS, IT WAS DETERMINED THAT YOU WERE ENTITLED TO RECEIVE YOUR RETIRED PAY DURING THAT PERIOD. YOU HAVE BEEN INFORMED BY THE ARMY AND BY THIS OFFICE THAT THE AMOUNT OF $229.95 DEDUCTED FROM YOUR PAY HAS BEEN REFUNDED TO YOU. YOU QUESTION THE CORRECTNESS OF THAT INFORMATION AND REQUEST THAT YOUR RECORDS BE RE-EXAMINED FOR CLARIFICATION AND THAT SUCH DEDUCTION NOW BE REFUNDED TO YOU.

IT APPEARS FROM A LETTER TO YOU DATED MAY 26, 1955, FROM THE DEPARTMENT OF THE ARMY THAT YOU RECEIVED NO RETIRED PAY FOR THE PERIOD APRIL 1 THROUGH 14, 1955, AND THAT $229.95 RETIRED PAY PAID TO YOU, AT THE RATE OF $181.54 PER MONTH, FOR THE PERIOD FEBRUARY 23 THROUGH MARCH 31, 1955, WAS LATER DEDUCTED FROM YOUR PAY. A STATEMENT OF YOUR RETIRED PAY ACCOUNT FOR THE PERIOD SEPTEMBER 1, 1949, THROUGH APRIL 30, 1959, AS SHOWN IN A LETTER TO YOU DATED JUNE 2, 1959, SHOWS THAT YOUR ACCOUNT WAS ADJUSTED TO PAY YOU THE RETIRED PAY DUE YOU FOR THAT ENTIRE PERIOD EXCEPT FOR THE PERIOD YOU WERE ON ACTIVE DUTY AND THE PERIOD FROM FEBRUARY 23 THROUGH APRIL 14, 1955, DURING WHICH PERIOD IT WAS DETERMINED UNDER THE INTERPRETATIONS OF LAW THEN IN EFFECT THAT YOU WERE NOT ENTITLED TO RECEIVE RETIRED PAY BECAUSE OF THE DUAL COMPENSATION LAW.

BY LETTER DATED APRIL 5, 1961, THE ARMY ADVISED YOU THAT YOUR RETIRED PAY ACCOUNT WAS ADJUSTED FOR THE PERIOD FEBRUARY 23 THROUGH APRIL 14, 1955, AT THE RATE OF $181.54 PER MONTH, FOR THE PERIOD FEBRUARY 23 THROUGH MARCH 31, AND AT THE RATE OF $199.88 PER MONTH FOR THE PERIOD APRIL 1 THROUGH 14, 1955, IN THE TOTAL AMOUNT OF $323.23, LESS WITHHOLDING TAXES OF $58.18, OR A NET AMOUNT OF $265.05. THE EFFECT OF THIS ADJUSTMENT WAS TO REFUND TO YOU THE AMOUNT OF $229.95 DEDUCTED FROM YOUR RETIRED PAY FOR THE PERIOD FEBRUARY 23 THROUGH MARCH 31, 1955, AND TO PAY YOU THE RETIRED PAY DETERMINED TO BE DUE YOU FOR THE PERIOD APRIL 1 THROUGH 14, 1955. LETTER DATED MARCH 3, 1964, THE RETIRED PAY DIVISION, FINANCE CENTER, U.S. ARMY, ADVISED US THAT THE "NET ADJUSTMENT CHECK OF $265.05 FOR THE PERIOD 23 FEBRUARY 14 APRIL 1955 WAS MAILED TO LIEUTENANT TESALLA 12 APRIL 1961.' BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MARCH 11, 1964, YOU WERE ALLOWED THE AMOUNT OF $84.81, REPRESENTING THE DIFFERENCE IN RETIRED PAY DUE YOU FOR THE PERIOD FEBRUARY 23 THROUGH APRIL 14, 1955, ON ACCOUNT OF YOUR ADVANCEMENT ON THE RETIRED LIST AND THE AMOUNT PAID TO YOU BY THE ABOVE ADJUSTMENT CHECK IN THE AMOUNT OF $265.05.

IN SUMMARY, THE AMOUNT OF $229.95 DEDUCTED FROM YOUR RETIRED PAY FOR THE PERIOD FEBRUARY 23 THROUGH MARCH 31, 1955, AND THE AMOUNT OF RETIRED PAY THEN DETERMINED TO BE DUE YOU FOR THE PERIOD APRIL 1 THROUGH 14, 1955, WAS PAID TO YOU BY THE CHECK IN THE AMOUNT OF $265.05 MAILED TO YOU ON APRIL 12, 1961. SEE, IN THIS CONNECTION, THE ARMY'S LETTER OF APRIL 5, 1961, TO YOU, EXPLAINING THAT ADJUSTMENT. THE ADDITIONAL AMOUNT OF RETIRED PAY DUE YOU FOR THE PERIOD FEBRUARY 23 THROUGH APRIL 14, 1955, WAS PAID TO YOU PURSUANT TO THE SETTLEMENT OF OUR CLAIMS DIVISION OF MARCH 11, 1964.

SINCE THE AMOUNT DEDUCTED FROM YOUR RETIRED PAY OR WITHHELD ON ACCOUNT OF YOUR CIVILIAN EMPLOYMENT FOR THE PERIOD FEBRUARY 23 THROUGH APRIL 14, 1955, HAS BEEN PAID TO YOU, IN ADDITION TO INCREASED RETIRED PAY DUE YOU FOR THAT PERIOD ON ACCOUNT OF ADVANCEMENT ON THE RETIRED LIST TO THE RANK OF FIRST LIEUTENANT, THERE IS NO PROPER BASIS FOR THE PAYMENT OF ANY ADDITIONAL AMOUNT TO YOU.

WE TRUST THAT THIS LETTER FURNISHED YOU WITH THE INFORMATION YOU HAVE REQUESTED.