B-160847, MAR. 8, 1967

B-160847, MAR. 8, 1967

TO MR. REUBEN H. COMER:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 26, 1966, REFERRED HERE FOR REPLY BY LETTER DATED JANUARY 30, 1967, FROM THE DEPARTMENT OF THE ARMY, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 28, 1966, OF OUR CLAIMS DIVISION ALLOWING YOU THE NET AMOUNT OF $2,333.63 AS RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331.

THE RECORD SHOWS THAT YOU WERE AWARDED A MONTHLY NONSERVICE CONNECTED DISABILITY PENSION AT THE RATE OF $78.75 EFFECTIVE JULY 24, 1958, UNDER THE PROVISIONS OF 38 U.S.C. 521 AND SUCH MONTHLY PAYMENTS WERE CONTINUED UNTIL APRIL 30, 1963. THE VETERANS ADMINISTRATION DETERMINED THAT THIS PENSION SHOULD HAVE BEEN TERMINATED ON SEPTEMBER 27, 1960, BECAUSE YOUR INCOME EXCEEDED $1,400 PER YEAR, THE INCOME PERMITTED FOR A VETERAN WITHOUT DEPENDENTS. YOUR INDEBTEDNESS IN THE AMOUNT OF $2,441.25 ON ACCOUNT OF OVERPAYMENT OF PENSION AT THE RATE OF $78.75 A MONTH FOR THE PERIOD OCTOBER 1, 1960, TO APRIL 30, 1963, WAS REPORTED TO THIS OFFICE BY THE VETERANS ADMINISTRATION ON DECEMBER 18, 1963, AS AN UNCOLLECTIBLE INDEBTEDNESS.

ON NOVEMBER 20, 1964, OUR CLAIMS DIVISION ISSUED A CERTIFICATE OF INDEBTEDNESS AGAINST YOU FOR THE AMOUNT OF THE OVERPAYMENT AND REFERRED THE MATTER TO THE UNITED STATES ATTORNEY, MIDDLE DISTRICT OF GEORGIA, MACON, GEORGIA, FOR COLLECTION. THE CLAIM AGAINST YOU WAS COMPRISED FOR $250, PAYMENT OF THAT AMOUNT WAS RECEIVED AUGUST 16, 1965, AND THE COMPLAINT FILED AGAINST YOU IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF GEORGIA, AMERICUS DISTRICT (CIVIL ACTION 575) WAS DISMISSED.

ON OCTOBER 21, 1965, YOU FILED CLAIM FOR RETIRED PAY FOR NON REGULAR SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 1331 WHICH CLAIM WAS RECEIVED IN THIS OFFICE JANUARY 11, 1966. BY LETTER ORDERS DATED JANUARY 28, 1966, YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF FIRST LIEUTENANT EFFECTIVE MAY 1, 1953. YOUR CLAIM FOR RETIRED PAY FROM THE LATTER DATE WAS RETURNED TO THIS OFFICE FOR CONSIDERATION ON MAY 17, 1966, DUE TO THE FACT THAT MORE THAN 10 YEARS HAD ELAPSED SINCE THE DATE YOU FIRST BECAME ENTITLED TO RETIRED PAY.

THE SETTLEMENT DATED OCTOBER 28, 1966, ALLOWED YOU RETIRED PAY FOR THE PERIOD JANUARY 11, 1966, THROUGH APRIL 30, 1966, EXCEPT FOR THE PERIOD JULY 24, 1958, THROUGH APRIL 30, 1963, DURING WHICH TIME YOU WERE PAID A PENSION AT THE MONTHLY RATE OF $78.75 BY THE VETERANS ADMINISTRATION. THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO JANUARY 11, 1956, WAS NOT ALLOWED SINCE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JANUARY 11, 1966. SUCH ACTION WAS TAKEN UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CHAPTER 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH PROVIDES THAT:

"EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE * * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

UNDER THE PROVISIONS OF 10 U.S.C. 1331 A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY (COMPUTED UNDER 10 U.S.C 1401) ON AND AFTER THE DATE WHEN HE FIRST MEETS THE REQUIREMENTS (AS TO AGE, SERVICE AND NON- ENTITLEMENT TO OTHER RETIRED PAY) SET FORTH IN SUBSECTION (A) OF THE SAID SECTION 1331. SEE THE CASE OF SEAGRAVE V. UNITED STATES, 131 CT.CL. 790 (1955), WHERE IN THE COURT OF CLAIMS HELD THAT A QUALIFIED RESERVE OFFICER HAD THE RIGHT TO RETIRED PAY UNDER THOSE PROVISIONS COMMENCING ON THE DATE HE MET THE AGE AND SERVICE REQUIREMENTS EVEN THOUGH HE MADE APPLICATION FOR SUCH PAY AT SOME LATER DATE. SUCH RIGHT APPEARS TO BE SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253, NOW 5 U.S.C. 8301, AND THE RIGHT TO RETIRED PAY IS THUS POSTPONED TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RIGHT OTHERWISE WOULD HAVE VESTED.

ACCORDINGLY, HAVING MET THE CONDITIONS THEREOF, YOUR RIGHT TO RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 ACCRUED MAY 1, 1953, THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH IT IS INDICATED THAT YOU BECAME 60 YEARS OF AGE REGARDLESS OF WHETHER YOUR NAME WAS BORNE ON A RETIRED LIST ON THAT DATE OR ADDED TO SUCH LIST AT A LATER DATE. HOWEVER, SINCE YOUR CLAIM FOR THAT RETIRED PAY WAS NOT RECEIVED IN THIS OFFICE UNTIL JANUARY 11, 1966, CONSIDERATION OF THAT PART OF THE CLAIM FOR RETIRED PAY WHICH ACCRUED PRIOR TO JANUARY 11, 1956, IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940.

YOU ASK WHERE YOUR APPLICATION WAS BETWEEN THE TIME IT WAS AIRMAILED BY YOU ON OCTOBER 21, 1965, AND THE TIME IT WAS RECEIVED IN THIS OFFICE ON JANUARY 11, 1966. WE HAVE NO INFORMATION AS TO THIS MATTER. WE HAVE BEEN ADVISED BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, THAT THE REASON FOR THE DELAY IN RECORDING YOUR CLAIM IN THIS OFFICE MAY BE OBTAINED FROM THE U.S. ARMY ADMINISTRATION CENTER, 9700 PAGE BOULEVARD, ST. LOUIS, MISSOURI 63132. HOWEVER, AS MAY BE SEEN FROM THE PROVISIONS OF THE LAW QUOTED ABOVE, IT IS THE DATE THE CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE THAT IS CONTROLLING AND THE DATE OF THE RECEIPT OF YOUR CLAIM IN THE DEPARTMENT OF THE ARMY CANNOT EXTEND THE 10-YEAR LIMITATION PERIOD. NO MATTER HOW MERITORIOUS A BARRED CLAIM MAY BE, THIS OFFICE MAY MAKE NO EXCEPTIONS TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME BE GRANTED WITHIN WHICH CLAIMS MAY BE FILED IN THIS OFFICE.

YOU ENCLOSED SIX EXHIBITS TO SHOW THAT THE OVERPAYMENT FROM THE VETERANS ADMINISTRATION IN THE AMOUNT OF $2,441.25 WAS SETTLED FOR THE AMOUNT OF $250 AND MARKED PAID IN FULL. APPARENTLY YOU BELIEVE THAT RETIRED PAY WAS WITHHELD FOR THE PERIOD FROM OCTOBER 1, 1960, THROUGH APRIL 30, 1963, BECAUSE OF THE ABOVE-MENTIONED INDEBTEDNESS COVERING THE SAME PERIOD. HOWEVER, SUCH RETIRED PAY WAS NOT WITHHELD BY WAY OF SET-OFF TO COLLECT AN INDEBTEDNESS, BUT WAS NOT PAID FOR OTHER REASONS. 38 U.S.C. 3104 (A) PROVIDES THAT:

"EXCEPT TO THE EXTENT THAT RETIREMENT PAY IS WAIVED UNDER OTHER PROVISIONS OF LAW, NOT MORE THAN ONE AWARD OF PENSION COMPENSATION, EMERGENCY OFFICERS-, REGULAR, OR RESERVE RETIREMENT PAY, OR INITIAL AWARD OF NAVAL PENSION GRANTED AFTER JULY 13, 1943, SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE OR CONCURRENTLY TO ANY PERSON BASED ON THE SERVICE OF ANY OTHER PERSON.'

YOU WERE FOUND BY THE VETERANS ADMINISTRATION TO BE PERMANENTLY AND TOTALLY DISABLED FROM NONSERVICE-CONNECTED DISABILITIES EFFECTIVE JULY 24, 1958. YOU RECEIVED A PENSION FROM THAT DATE TO APRIL 30, 1963, AND WHILE NOT ENTITLED TO A PENSION DURING THE PERIOD OCTOBER 1, 1960, THROUGH APRIL 30, 1963, YOU RECEIVED A TOTAL OF $2,441.25 DURING THAT PERIOD. SINCE YOU HAVE REPAID ONLY $250 OF THE PENSION SO PAID TO YOU, YOU HAVE RETAINED THE SUM OF $2,191.25 RECEIVED FROM THE VETERANS ADMINISTRATION, AS PENSION, FOR THAT PERIOD. IN VIEW OF THE FACT THAT SUCH AMOUNT EXCEEDS THE AMOUNT OF RETIRED PAY DUE FOR THAT PERIOD ($1,355.01) PAYMENT OF RETIRED PAY IS PROHIBITED BY THE TERMS OF 38 U.S.C. 3104 (A).