B-129535, JUN. 5, 1957

B-129535, JUN. 5, 1957

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1957, RELATIVE TO THE CLAIM OF MR. STEPHEN A. CHRISTIAN FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE INCIDENT TO MR. CHRISTIAN'S NAVAL SERVICE.

YOU ACKNOWLEDGE RECEIPT OF OUR LETTER OF MARCH 26, 1957, WHEREIN IT WAS DETERMINED THAT NOTWITHSTANDING THE RETIRED OFFICER'S APPARENT ENTITLEMENT TO ADDITIONAL RETIRED PAY PURSUANT TO OUR DECISION TO FOLLOW THE DETERMINATIONS OF THE COURT OF CLAIMS IN THE CASES OF SANDERS V. UNITED STATES, 120 C.CLS. 501 AND ABAD, ET AL (BRACHER, PLAINTIFF NO. 40) V. UNITED STATES, NO. 49667, DECIDED OCTOBER 2, 1956, FURTHER CONSIDERATION OF THE MATTER NECESSARILY WOULD DEPEND UPON THE FINAL CONCLUSION OF PROCEEDINGS IN THE CASE OF JOHN TATO V. UNITED STATES, NO. 139-54, IN THE COURT OF CLAIMS.

YOU NOW CALL OUR ATTENTION TO SECTION 2 OF THE ACT OF JUNE 19, 1948, 62 STAT. 505, WHEREIN IT IS PROVIDED THAT ENLISTED MEN ADVANCED TO OFFICER RANK DURING WORLD WAR II WHO WERE LATER SUBJECTED TO A CHECK AGE OF THEIR RETIRED PAY UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, WERE AUTHORIZED TO RECEIVE THEIR RETIRED PAY FROM THE DATE OF THEIR RELEASE FROM ACTIVE SERVICE THROUGH OCTOBER 31, 1946. YOU THEREFORE REQUEST THAT RECONSIDERATION BE GIVEN THE MATTER AND THAT A PARTIAL SETTLEMENT BE MADE AT THIS TIME FOR THE PERIOD OCTOBER 26, 1945 (YOUR LETTER STATES 1946), THROUGH OCTOBER 31, 1946.

IN A LETTER DATED JULY 14, 1955, THE UNITED STATES NAVY FINANCE CENTER, AT CLEVELAND, OHIO, REPORTED AS FOLLOWS:

"MR. CHRISTIAN RECEIVED FULL OFFICER'S RETIRED PAY FOR THE PERIOD 26 OCTOBER 1945 THROUGH 31 OCTOBER 1946. HE RECEIVED REDUCED RETIRED PAY IN THE AMOUNTS OF $42.00 PER MONTH FOR THE PERIOD 1 NOVEMBER 1946 THROUGH 30 APRIL 1952, $43.68 PER MONTH FOR THE PERIOD 1 MAY 1952 THROUGH 31 MARCH 1955, AND $42.00 IN APRIL 1955, DUE TO FEDERAL CIVIL EMPLOYMENT.

"EFFECTIVE 1 MAY 1955, MR. CHRISTIAN'S RETIRED PAY ACCOUNT WAS PLACED IN A SUSPENDED STATUS, SINCE INFORMATION RECEIVED IN THIS OFFICE REVEALED THAT HIS SALARY FROM HIS FEDERAL CIVIL POSITION HAD BEEN INCREASED TO $2845.44 PER ANNUM EFFECTIVE 1 NOVEMBER 1946, AND TO OVER $3000.00 EFFECTIVE 11 JULY 1948. THEREFORE, AN OVERPAYMENT OF $4095.76 FOR THE PERIOD 1 NOVEMBER 1946 THROUGH 30 APRIL 1955, HAS RESULTED IN HIS ACCOUNT AND IS AT PRESENT AN OUTSTANDING INDEBTEDNESS.'

IN VIEW OF THIS REPORT IT APPEARS THAT WHILE MR. CHRISTIAN MAY BE ENTITLED TO SOME ADJUSTMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 26, 1945, THROUGH OCTOBER 31, 1946, IRRESPECTIVE OF THE FINAL CONCLUSION IN THE TATO CASE, YET IT MUST BE POINTED OUT THAT, IF THE GOVERNMENT SHOULD PREVAIL IN THAT CASE, THE AMOUNT DUE MR. CHRISTIAN (ASSUMING THAT HE WOULD BE OTHERWISE ENTITLED) WOULD BE AVAILABLE FOR OFFSET AGAINST THE PRESENTLY EXISTING OVERPAYMENT OF $4,095.76 IN HIS RETIRED PAY ACCOUNT FOR THE PERIOD NOVEMBER 1, 1946, THROUGH APRIL 30, 1955, INDICATED IN THE ADMINISTRATIVE REPORT.