B-139023, B-139927, JUL. 24, 1959

B-139023, B-139927, JUL. 24, 1959

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1959, WITH POWER OF ATTORNEY ATTACHED, PRESENTING A CLAIM ON BEHALF OF EUGENE JOSEPH CHRISTIAN FOR THE DIFFERENCE BETWEEN DISABILITY RETIRED PAY AS INCREASED BY CREDIT FOR YEARS OF ACTIVE DUTY PLUS YEARS OF INACTIVE DUTY IN THE FLEET RESERVE AND THE RETIRED PAY ACTUALLY RECEIVED BY HIM FROM OCTOBER 1, 1949, TO THE DATE OF SETTLEMENT OF THE CLAIM.

YOU SAY THAT THE CLAIMANT IS ALSO ONE OF THE PLAINTIFFS IN THE CLASS ACTION OF FRANK ALOIS BRANDENSTEIN, ET AL. V. UNITED STATES, C.CLS.NO. 98- 59, FILED IN THE UNITED STATES COURT OF CLAIMS TO RECOVER INCREASED DISABILITY RETIRED PAY FOR PART OF THE PERIOD COVERED BY YOUR CLAIM. IS PRESUMED, THEREFORE, THAT YOU ARE FILING THIS CLAIM TO TOLL THE TEN- YEAR STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS FILED IN THIS OFFICE. INASMUCH AS THE SAME LEGAL QUESTIONS ARE INVOLVED IN THE BRANDENSTEIN CASE AND THE CLAIM FILED HERE--- EXCEPT FOR THE DIFFERENT LIMITATION PERIOD FOR FILING CLAIMS IN THE GENERAL ACCOUNTING OFFICE AND CASES FILED IN THE COURT OF CLAIMS, ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AND 28 U.S.C. 2501, RESPECTIVELY--- NO ACTION WILL BE TAKEN ON THE CLAIM PENDING THE CONCLUSION OF THE JUDICIAL PROCEEDINGS NOW BEFORE THE COURT.

FOR YOUR INFORMATION, THIS OFFICE HAS BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT ON MAY 20, 1959, EUGENE JOSEPH CHRISTIAN, FILED A PETITION AS PLAINTIFF IN A CASE ENTITLED EUGENE JOSEPH CHRISTIAN V. UNITED STATES, C.CLS.NO. 220-59, IN THE UNITED STATES COURT OF CLAIMS TO RECOVER INCREASED DISABILITY RETIRED PAY FROM OCTOBER 1, 1949, TO THE PRESENT TIME COMPUTED ON THE BASIS OF 100 PERCENT DISABILITY RATHER THAN ON THE BASIS OF 20 YEARS OF CREDITABLE SERVICE FOR RETIREMENT PAY PURPOSES.