B-90580, AUG. 5, 1959

B-90580, AUG. 5, 1959

TO MR. CIPRIANO PORTELLO:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1959, ADDRESSED TO THE UNITED STATES CIVIL SERVICE COMMISSION, AND FORWARDED TO THIS OFFICE BY THE NAVY FINANCE CENTER, CLEVELAND 14, OHIO, WHEREIN YOU REQUEST THAT PAYMENT OF YOUR PENSION AS A RETIRED MEMBER, UNITED STATES NAVY, BE RESUMED. YOU STATE, IN EFFECT, THAT, BECAUSE YOU ARE OLD, SICKLY AND WITH NO MEANS OF LIVELIHOOD, YOUR CLAIM FOR RETIRED PAY SHOULD BE ALLOWED IN JUSTICE AND EQUITY. YOU ALSO STATE THAT YOU ARE ENCLOSING A COPY OF YOUR "PARDON" PAPER AS EVIDENCE THAT YOU HAVE NOT DONE ANYTHING WRONG TO THE ARMED FORCES OF THE PHILIPPINES AND TO THE REPUBLIC OF THE PHILIPPINES.

THE RECORDS OF THIS OFFICE DISCLOSE THAT YOUR CLAIM FOR THE PROCEEDS OF RETIRED PAY CHECKS FOR THE MONTHS OF NOVEMBER AND DECEMBER 1941, AND FOR RETIRED PAY FOR THE PERIOD BEGINNING JANUARY 1, 1942, AS NATIVE MACHINIST'S MATE, SECOND CLASS, UNITED STATES NAVY, RETIRED, WAS DISALLOWED BY OFFICE SETTLEMENT DATED JULY 30, 1950, SUBSTANTIALLY FOR THE REASON THAT THE RECORD INDICATED THAT YOU JOINED AND SERVED THE ENEMY JAPANESE AS A MOTOR LAUNCH OPERATOR FOR THE JAPANESE NAVY IN OR ABOUT 1942 TO 1945 AND THAT BY REASON OF SUCH TREASONABLE ACT YOU WERE PRECLUDED FROM RECEIVING ANY RETIRED PAY SUBSEQUENT TO JANUARY 1, 1942, INCIDENT TO YOUR STATUS OF A RETIRED MAN OF THE UNITED STATES NAVY. SUCH SETTLEMENT ALSO STATED THAT, WHILE IT WOULD APPEAR THAT YOU MAY HAVE A RIGHT TO ANY UNPAID RETIRED PAY FOR THE PERIODS PRIOR TO 1942, THE RECORDS DISCLOSE THAT YOU WERE IN RECEIPT OF A $500 PARTIAL PAYMENT ON MAY 2, 1945, BY MOBILE SETTLEMENT NO. 1 IN THE PHILIPPINES, WHICH AMOUNT WOULD GREATLY EXCEED ANY RETIRED PAY WHICH MAY BE DUE YOU FOR SUCH PRIOR PERIOD.

THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED ON REVIEW BY THIS OFFICE IN LETTER B-90580, DATED SEPTEMBER 15, 1952, WHEREIN IT WAS STATED, IN PART, THAT:

"THE ACCOUNTING OFFICERS ARE NOT REQUIRED TO CERTIFY OR APPROVE FOR PAYMENT CLAIMS IN WHICH THEY HAVE DOUBT AS TO THE VALIDITY OF THE CLAIM OR THE LEGALITY OF THE PAYMENT, AND, IN THAT CONNECTION, IT IS NOT NECESSARY TO DETERMINE AFFIRMATIVELY THAT THE CLAIM IS INVALID IN ORDER TO DISALLOW IT. WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT, AND SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE THEREON, IT HAS BEEN REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO RESOLVE THE DOUBT IN FAVOR OF THE INTERPRETATION WHICH WILL BEST SERVE THE INTERESTS OF THE UNITED STATES. SEE 18 COMP. GEN. 749. FURTHER, THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IN SUCH CASES IS TO DISALLOW THE ENTIRE CLAIM, LEAVING THE CLAIMANT TO PURSUE HIS REMEDY IN A COURT OF COMPETENT JURISDICTION, WHERE THE MATTER MAY BE DETERMINED ON PROPER EVIDENCE UNDER OATH, SUBJECT TO CROSS EXAMINATION AND OTHER JUDICIAL PROCESSES, AND LEAVING IT TO THE COURT TO DETERMINE THE MERITS OF THE ENTIRE MATTER.'

SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291.

THE COPY OF THE "PARDON" TO WHICH YOU REFER IN YOUR LETTER WAS NOT RECEIVED WITH YOUR LETTER AND THE DEPARTMENT OF THE NAVY ADVISES THAT SUCH WAS NOT ENCLOSED. HOWEVER, IN THE PRESENTATION OF YOUR ORIGINAL CLAIM YOU FURNISHED A TRUE COPY OF THE ORDER DATED FEBRUARY 17, 1948, ISSUED BY THE FIRST DIVISION, PEOPLES COURT, REPUBLIC OF THE PHILIPPINES, WHEREIN IT IS STATED, IN EFFECT, THAT BY VIRTUE OF REPUBLIC OF THE PHILIPPINES PROCLAMATION NO. 51 (A PROCLAMATION GRANTING AMNESTY), IT APPEARED YOU FELL WITHIN THE BENEFITS OF THE SAID AMNESTY PROCLAMATION, AND DECLARED THAT YOU WERE ENTITLED TO THE GRANT OF AMNESTY FOR THE OFFENSE CHARGED.

THE MATTER OF AMNESTY GRANTED IN YOUR CASE WAS CONSIDERED IN THE SETTLEMENT OF YOUR CLAIM AND UPON REVIEW OF SUCH SETTLEMENT HERE. IN OUR LETTER OF SEPTEMBER 15, 1952, YOU WERE ADVISED THAT, WHILE YOU WERE RELIEVED OF ANY CRIMINAL LIABILITY FOR THE TREASONABLE OVERT ACTS OF WHICH YOU WERE ACCUSED, A GRANT OF AMNESTY THEREFOR COULD HAVE NO BEARING ON THE COMMISSION OF THE ACTS WHICH CONSTITUTED THE OFFENSE FOR WHICH YOU STOOD ACCUSED. THE AUTHORITY OF OUR OFFICE UNDER SECTION 236, REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 20, DOES NOT EXTEND TO CLAIMS BASED SOLELY ON EQUITABLE OR MORAL OBLIGATION BUT MUST BE EXERCISED WITHIN THE PROVISIONS OF APPLICABLE STATUTES.

IN THE LETTERS OF JULY 30, 1950, AND SEPTEMBER 15, 1952, MENTIONED ABOVE, YOU WERE FULLY ADVISED AS TO THE REASONS WHY YOUR CLAIM COULD NOT BE ALLOWED BY THIS OFFICE. SINCE YOUR PRESENT LETTER CONTAINS NO INFORMATION NOT CONSIDERED WHEN THOSE LETTERS WERE WRITTEN, IT DOES NOT WARRANT ANY REVISION OF OUR PRIOR ACTION ON YOUR CLAIM.