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B-185426 1 (1976-09-21)

handle is hein.gao/gaobadcyq0001 and id is 1 raw text is: ER * ~@0 ~ -r ~ /f B-185426 THE COMPTROLLER GENERAL OF THE UNITED STATES WASHINGTON, D.C. 20548 DATE: P2 1 1976 MATTER OF: DIGEST: Major Pedro J. Acevedo Torres, USAR Where an Army Reserve member claims entitlement to administrative function pay, in the absence of an officially verified showing that the member either commanded a separate unit necessarily requiring the performance of administrative functions or that he actually performed the specified administrative functions of a subordinate unit, such claim may not be allowed. This action is in response to a letter dated March 15, 1976, with enclosures, from Ismael Cardona, -sq., attorney for Major Pedro J. Acevedo Torres, USAR, which constitutes an appeal from our Transportation and Claims Division settlement dated March 5, 1975, disallowing the member's claim for admin- istrative function pay for the period September 5, 1958, to *D cember 31, 1968, during which the member was Complement Commander of, among other units, the 369th Station Hospital (300B) MSC-USAR, San Juan, Puerto Rico. In response to an earlier appeal on the same issue, we advised the member on January 19, 1976, that since the matter of his appeal was the subject of litigation in the United States District Court for the District*of Puerto Rico, Civil Action No. 75-1048, filed on September 18, 1975, no further action would be taken on his claim pending the outcome of those court proccedings. Those proceedings have been concluded-in favor of the Government. The court in its February 26, 1976 opinion and order dismissed the complaint for lack of jurisdiction. Since failure of a plaintiff to amend a complaint so as to bring it within the jurisdiction of the court does not go to the merits of the case, dismissal of suclyan action does not give res judicata affect to judgment rendered for the defendant on jurisdictional grounds. See Takashi Kataoka v. May D partment Stores Co., 115 F. 2d 521 (9th Cir. 1940), cert. denic-d, 312 U.S. 700 (1940). Therefore, we may now rule on the present appeal. Ii I DECISION FILE:

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