B-144253, APR. 4, 1961

B-144253, APR. 4, 1961

TO LIEUTENANT COMMANDER GEORGE E. SCHADE:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 13, 1960 AND FEBRUARY 11, 1961, WITH ENCLOSURE (COPY OF COURT OF CLAIMS DECISION OF DECEMBER 1, 1960, IN THE CASE OF REX I. HEINLEIN, JR. V. UNITED STATES, CT.CL.NO. 459- 59) REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED DECEMBER 6, 1960, DISALLOWING YOUR CLAIM FOR INCREASED RETIRED PAY.

AS EXPLAINED IN THE SETTLEMENT OF DECEMBER 6, 1960, NO CONSIDERATION MAY BE GIVEN TO YOUR CLAIM FOR ANY PART OF THE PERIOD PRECEDING JUNE 20, 1950, SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL JUNE 20, 1960. SEE 31 U.S.C. 71A. THE REMAINING PORTION OF YOUR CLAIM FOR INCREASED RETIRED PAY BASED ON THE PERIOD THAT YOU WERE IN AN INACTIVE STATUS ON THE RETIRED LIST FROM ABOUT JUNE 5, 1930 TO SEPTEMBER 22, 1940, WAS DISALLOWED FOR THE REASON THAT, SINCE YOU WERE NOT ENTITLED TO THE BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 37 U.S.C. 115 (NO SERVICE IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918), YOUR RETIRED PAY STATUS IS NOT WITHIN THE SCOPE OF OUR DECISION OF SEPTEMBER 3, 1959, B-131700, 39 COMP. GEN. 152, HOLDING THAT THIS OFFICE WOULD ACCEPT AND FOLLOW AS A PRECEDENT IN THE SETTLEMENT OF OTHER SIMILAR CASES THE "RE-RETIREMENT" CONCEPT OF THE COURT OF CLAIMS DECISIONS IN THE BAILEY, TRAVIS AND PHELAN CASES.

THE HOLDING IN OUR DECISION OF SEPTEMBER 3, 1959, TO ACCEPT AS A PRECEDENT THE "RE-RETIREMENT" CONCEPT OF THE COURT OF CLAIMS AS REFLECTED IN THE BAILEY, TRAVIS AND PHELAN CASES WITH RESPECT TO THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 825, RESTS ON THE FACT THAT THOSE PLAINTIFFS SERVED IN THE MILITARY FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, AND THEREFORE, BY VIRTUE OF THE COURT'S HOLDINGS IN OTHER CASES WERE ENTITLED TO THE "RE-RETIREMENT" BENEFITS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE 1942 LAW. IN THE ABSENCE OF SERVICE PRIOR TO NOVEMBER 12, 1918, THE PROVISIONS OF PARAGRAPH 4, SECTION 15, REMAIN INOPERATIVE AND IT IS OUR VIEW THAT IN SUCH A CASE THE "RE-RETIREMENT" RULE OF THE BAILEY, TRAVIS AND PHELAN CASES PROPERLY MAY NOT BE APPLIED. HENCE, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF DECEMBER 6, 1960, IS FOUND CORRECT AND IS SUSTAINED.

AS TO THE HEINLEIN DECISION OF DECEMBER 1, 1960, WHICH YOU SUGGEST SUPPORTS YOUR CLAIM, YOU ARE ADVISED THAT THE JUDICIAL PROCEEDINGS IN THAT CASE ARE NOT YET FINAL AND SINCE THE SAME ISSUES RAISED IN THAT CASE ARE AGAIN BEFORE THE COURT IN ANOTHER CASE, THE HEINLEIN DECISION MAY NOT SERVE AS A PRECEDENT. IT IS PERTINENT TO OBSERVE, FURTHERMORE, THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN RELATION TO SIMILAR MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THIS OFFICE AS PRECEDENTS IN CONNECTION WITH THE SETTLEMENT OF CLAIMS NOT INVOLVED IN THE COURT ACTION. 14 COMP. GEN. 648, 31 ID. 73.

WE NOTE, ALSO, THE NAMES OF THE SEVERAL OTHER NAVAL OFFICERS WHO, YOU STATE, IN CIRCUMSTANCES LIKE YOURS HAVE RECEIVED PAYMENTS OF INCREASED RETIRED PAY BASED ON CERTIFICATIONS OF THE CLAIMS DIVISION OF THIS OFFICE. APPROPRIATE ACTION WITH RESPECT TO SUCH PAYMENTS WILL BE TAKEN IN DUE COURSE IF IT IS DETERMINED THAT THOSE PAYMENTS WERE ERRONEOUS AND UNAUTHORIZED.