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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27. YOU WERE ADVISED THAT SINCE IT APPEARS THAT YOU WERE GRANTED RETIREMENT PAY FOR PHYSICAL DISABILITY. THERE BEING NO INDICATION THAT YOUR DISABILITY WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR THAT IT RESULTED FROM AN INSTRUMENTALITY OF WAR. YOUR CASE WAS NOT ONE WHICH. WAS EXEMPTED FROM DUAL COMPENSATION RESTRICTIONS OF SECTION 212 (A) OF THAT ACT. YOU WERE ALSO ADVISED THAT THE HOLDING IN THE CASE OF TANNER V. IS NOT FOR APPLICATION IN YOUR CASE. YOU WERE INFORMED. INSOFAR AS THE LEONARD CASE IS CONCERNED. YOU ARE ADVISED THAT WE HAVE LEARNED INFORMALLY FROM THE OFFICE OF THE CLERK OF THE COURT OF CLAIMS THAT THE PETITION IN THE LEONARD CASE WAS DISMISSED ON NOVEMBER 7.

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B-128161, NOV. 16, 1956

TO FIRST LIEUTENANT HOWARD J. HESS, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1956, FURTHER CONCERNING YOUR CLAIM FOR RETIRED PAY AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, FROM AUGUST 6, 1945, TO AUGUST 3, 1955.

IN OUR LETTER OF AUGUST 10, 1956, YOU WERE ADVISED THAT SINCE IT APPEARS THAT YOU WERE GRANTED RETIREMENT PAY FOR PHYSICAL DISABILITY, EFFECTIVE FROM AUGUST 6, 1945, AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, THERE BEING NO INDICATION THAT YOUR DISABILITY WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR THAT IT RESULTED FROM AN INSTRUMENTALITY OF WAR, YOUR CASE WAS NOT ONE WHICH, UNDER THE PROVISIONS OF SECTION 212 (B) OF THE ECONOMY ACT OF JUNE 30, 1932, WAS EXEMPTED FROM DUAL COMPENSATION RESTRICTIONS OF SECTION 212 (A) OF THAT ACT. YOU WERE ALSO ADVISED THAT THE HOLDING IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, IS NOT FOR APPLICATION IN YOUR CASE. YOU WERE INFORMED, HOWEVER, THAT THE QUESTION INVOLVED IN YOUR CASE APPEARED TO BE THEN BEFORE THE COURT OF CLAIMS IN THE CASE OF LEONARD V. UNITED STATES, C.CLS. NO. 182-55, AND THAT WE ANTICIPATED TAKING NO ACTION ON CLAIMS OF THIS TYPE UNTIL THE LEONARD CASE, OR A SIMILAR CASE, HAD BEEN FINALLY DECIDED.

IT APPEARS THAT YOU WISH TO BE ADVISED AS TO WHAT ACTION WE MIGHT TAKE IN THE EVENT OF A DECISION AGAINST THE GOVERNMENT IN THE LEONARD CASE AND THAT YOU DESIRE TO BE MORE FULLY INFORMED CONCERNING THE APPLICABLE STATUTES OF LIMITATIONS AND CONCERNING THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932. INSOFAR AS THE LEONARD CASE IS CONCERNED, YOU ARE ADVISED THAT WE HAVE LEARNED INFORMALLY FROM THE OFFICE OF THE CLERK OF THE COURT OF CLAIMS THAT THE PETITION IN THE LEONARD CASE WAS DISMISSED ON NOVEMBER 7, 1956.

SECTION 2501 OF TITLE 28, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

"EVERY CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED UNLESS THE PETITION THEREON IS FILED, OR THE CLAIM IS REFERRED BY THE SENATE OR HOUSE OF REPRESENTATIVES, OR BY THE HEAD OF AN EXECUTIVE DEPARTMENT WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUED.'

SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES---

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE,TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

SINCE IT APPEARS THAT YOUR CLAIM WAS RECEIVED IN OUR OFFICE ON NOVEMBER 28, 1955, CONSIDERATION OF THAT PART OF YOUR CLAIM FOR THE PERIOD ENDING NOVEMBER 27, 1945, IS PRECLUDED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. THE FACT THAT YOU FILED A CLAIM IN OUR OFFICE DOES NOT STOP THE RUNNING OF THE STATUTE OF LIMITATIONS APPLICABLE TO THE PRESENTATION OF CLAIMS TO THE COURT OF CLAIMS.

DURING THE PERIOD OF YOUR CLAIM SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 382, 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 760, 761, PROVIDED:

"/A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 * * *, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"/B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING AN AS PROVIDED IN VETERANS REGULATIONS NUMBERED 1 (A), PART I, PARAGRAPH "

THE ACT OF FEBRUARY 20, 1954, 68 STAT. 18, AMENDED THE PROVISO IN THE QUOTED SUBSECTION (B), EFFECTIVE JANUARY 1, 1951, TO READ:

"PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.'

VETERANS REGULATION NUMBERED 1 (A), REFERRED TO IN THE TEXT, IS SET OUT IN CHAPTER 12A OF TITLE 38, U.S. CODE, AND IS TOO LONG TO BE QUOTED HERE.

EXECUTIVE ORDER NO. 8461, DATED JUNE 28, 1940, PROVIDES THAT IN THE ADMINISTRATION OF THE RETIREMENT-PAY PROVISIONS OF THE ACT OF APRIL 3, 1939--- THE STATUTE UNDER WHICH YOU WERE GRANTED RETIREMENT PAY--- THE DETERMINATION OF ALL QUESTIONS OF ELIGIBILITY FOR THE BENEFITS THEREOF, INCLUDING ALL QUESTIONS OF LAW AND FACT RELATING TO SUCH ELIGIBILITY, SHALL BE MADE BY THE SECRETARY OF WAR, OR BY SOMEONE DESIGNATED BY HIM IN THE WAR DEPARTMENT, IN THE MANNER, AND IN ACCORDANCE WITH THE STANDARDS, PROVIDED BY LAW, OR REGULATIONS FOR REGULAR ARMY PERSONNEL.

WE TRUST THAT THE FOREGOING SUFFICIENTLY SERVES THE PURPOSE OF YOUR INQUIRY.

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