B-129535, MAR. 26, 1957

B-129535, MAR. 26, 1957

TO KING AND KING, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 8, 1957, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 17, 1956, WHICH SUSTAINED OUR CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 14, 1955, DENYING THE CLAIM OF MR. STEPHEN A CHRISTIAN FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE FOR THE PERIOD OCTOBER 1, 1945, THROUGH OCTOBER 13, 1946.

IN OUR DECISION OF DECEMBER 17, 1956, IT WAS POINTED OUT THAT FROM THE RECORD BEFORE US MR. CHRISTIAN HAD BUT 15 YEARS, 5 MONTHS AND 28 DAYS OF SERVICE, WHICH WAS INSUFFICIENT TO CONSTITUTE SIXTEEN YEARS OF SERVICE FOR PURPOSES OF TRANSFER TO THE FLEET NAVAL RESERVE AS TO BRING HIS CASE WITHIN THE PRINCIPLE OF THE BRACHER CASE IN THE COURT OF CLAIMS (ABAD, ET AL. (BRACHER, PLAINTIFF NO. 43) V. UNITED STATES, NO. 49667, DECIDED OCTOBER 2, 1956), EVEN IF WE WERE INCLINED EVENTUALLY TO ACCEPT THAT DECISION AS CONTROLLING.

YOU NOW STATE THAT MR. CHRISTIAN COMPLETED THE FOLLOWING PERIODS OF SERVICE FOR TRANSFER PURPOSES:

ENLISTED NOVEMBER 14, 1907; DISCHARGED NOVEMBER 13, 1911

ENLISTED NOVEMBER 27, 1911; DISCHARGED AUGUST 27, 1915

ENLISTED AUGUST 28, 1915; DISCHARGED MAY 28, 1919

ENLISTED MAY 29, 1919; DISCHARGED MAY 28, 1923

TRANSFERRED TO FLEET RESERVE MAY 28, 1923

WE HAVE NOW DECIDED TO FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE BRACHER CASE IN THE SETTLEMENT OF SIMILAR CASES IN OUR OFFICE,AND WERE THERE NO OTHER IMPEDIMENT, WE WOULD ACCEPT THE ABOVE STATEMENT OF SERVICE, FOLLOWING A VERIFICATION FROM OFFICIAL SOURCES, AS EQUAL TO SIXTEEN YEARS OF SERVICE FOR PURPOSES OF TRANSFER TO THE FLEET NAVAL RESERVE.

HOWEVER, THE CLAIM OF MR. CHRISTIAN PRESENTS AN ADDITIONAL FACTOR, NOT HERETOFORE CONSIDERED. IT APPEARS THAT MR. CHRISTIAN WAS PLACED ON THE RETIRED LIST EFFECTIVE JULY 1, 1937, THAT HE WAS ADVANCED TO THE RANK OF CHIEF GUNNER, A COMMISSIONED WARRANT OFFICER RANK, PURSUANT TO THE PROVISIONS OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, AND BECAME ENTITLED TO RECEIVE RETIRED PAY BASED ON THAT RANK EFFECTIVE OCTOBER 26, 1945, THE DAY FOLLOWING THE DATE OF HIS LAST RELEASE FROM ACTIVE DUTY. A RETIRED COMMISSIONED WARRANT OFFICER, MR. CHRISTIAN'S RETIRED PAY IS SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, PROHIBITING, GENERALLY, THE CONCURRENT RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF "SERVICES OF A COMMISSIONED OFFICER" AND THE COMPENSATION OF A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT IN EXCESS OF A PRESCRIBED MAXIMUM. SINCE IT APPEARS THAT MR. CHRISTIAN HAS ALREADY BEEN PAID THE PRESCRIBED MAXIMUM, FURTHER PAYMENT MAY NOT BE MADE.

WE HAVE NOT OVERLOOKED THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JOHN TATO V. UNITED STATES, NO. 139-54, DECIDED NOVEMBER 7, 1956, WHEREIN THE COURT DECIDED THAT A COMMISSIONED WARRANT OFFICER WAS NOT A "COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT, AND HENCE, NOT WITHIN THE PROHIBITION. HOWEVER, WE ARE ADVISED THAT THE TATO CASE, AT THE PRESENT TIME, HAS NOT BEEN FINALLY CONCLUDED. ACCORDINGLY, ASIDE FROM THE FACT THAT WE HAVE NOT, AS YET, EXPRESSED AGREEMENT WITH THE COURT'S CONCLUSION IN THE TATO CASE, ALLOWANCE MAY NOT NOW BE MADE OF MR. CHRISTIAN'S CLAIM.