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B-161516, MAY 16, 1972

B-161516 May 16, 1972
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CLAIMANT MUST RECOGNIZE THAT ENTITLEMENT TO BASIC PAY AT THE TIME THE SECRETARY'S DETERMINATION OF DISABILITY IS MADE IS PREREQUISITE TO ELIGIBILITY FOR THE BENEFITS OF 10 U.S.C. 1201. NO FURTHER LEGAL ACTION WILL BE TAKEN IN THE MATTER. YOU ASK: "IF IT IS POSSIBLE FOR YOUR OFFICE TO RECONSIDER OR CLARIFY ITS 1967 DECISION. THE FIRST QUESTION WAS NOT RULED BY THE COURT OF CLAIMS. THE SECOND QUESTION WAS. "1. REFER ONLY TO THE TIME THAT THE SERVICEMAN WAS IN FACT UNFIT. NOTWITHSTANDING WHEN SUCH DETERMINATION WAS MADE BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. OR DO THEY ALSO REFER TO THE TIME THAT THE DETERMINATION ITSELF WAS MADE? HAVING A SUSPECTED OR POSSIBLE DISABILITY IS MISTAKINGLY FOUND FIT FOR DUTY.

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B-161516, MAY 16, 1972

MILITARY PERSONNEL - INCREASED DISABILITY SEVERANCE PAY - ENTITLEMENT - REQUEST FOR RECONSIDERATION OR CLARIFICATION OF PRIOR DENIAL CONCERNING A REQUEST OF MICHAEL KIMMEL FOR RECONSIDERATION OR CLARIFICATION OF A PRIOR DECISION DISALLOWING HIS CLAIM FOR INCREASED DISABILITY SEVERANCE PAY AS A FORMER MEMBER OF THE COAST GUARD. MR. KIMMEL HAS FAILED TO PRESENT ANY EVIDENCE NOT PREVIOUSLY CONSIDERED. FURTHER, GAO HAS NO AUTHORITY TO REVIEW DECISIONS OF THE COAST GUARD BOARD FOR THE CORRECTION OF MILITARY RECORDS AND 28 U.S.C. 2519 BARS CONSIDERATION OF MATTERS BEFORE THE COURT OF CLAIMS. KIMMEL V UNITED STATES, CT. CL. NO. 516-69, DECIDED DECEMBER 10, 1971. CLAIMANT MUST RECOGNIZE THAT ENTITLEMENT TO BASIC PAY AT THE TIME THE SECRETARY'S DETERMINATION OF DISABILITY IS MADE IS PREREQUISITE TO ELIGIBILITY FOR THE BENEFITS OF 10 U.S.C. 1201, 1202, AND 1203. 47 COMP. GEN. 716 (1968). IN VIEW OF THE FOREGOING, NO FURTHER LEGAL ACTION WILL BE TAKEN IN THE MATTER.

TO MR. MICHAEL KIMMEL:

THIS REFERS TO YOUR LETTER DATED MARCH 31, 1972, IN WHICH YOU REQUESTED A RECONSIDERATION OR CLARIFICATION OF OUR DECISION, B-161516, JUNE 19, 1967, 46 COMP. GEN. 867.

YOU ASK:

"IF IT IS POSSIBLE FOR YOUR OFFICE TO RECONSIDER OR CLARIFY ITS 1967 DECISION, AND ASSUMING THAT 28 U.S.C. 2519 WOULD NOT BE A BAR TO PAYMENT OF ADDITIONAL SEVERANCE PAY IN MY CASE, I WOULD REQUEST ANSWERS TO THE FOLLOWING QUESTIONS. FOR YOUR INFORMATION, THE FIRST QUESTION WAS NOT RULED BY THE COURT OF CLAIMS, BUT THE SECOND QUESTION WAS.

"1. FOR PURPOSES OF ESTABLISHING ELIGIBILITY FOR MILITARY DISABILITY BENEFITS, DO THE WORDS 'ENTITLED TO BASIC PAY', WHERE THEY FIRST APPEAR IN 10 U.S.C. 1201, 1202 AND 1203, REFER ONLY TO THE TIME THAT THE SERVICEMAN WAS IN FACT UNFIT, NOTWITHSTANDING WHEN SUCH DETERMINATION WAS MADE BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED, OR DO THEY ALSO REFER TO THE TIME THAT THE DETERMINATION ITSELF WAS MADE? (IF THE LATTER, AS A MATTER OF ADMINISTRATIVE PRACTICE, SHOULD A SERVICEMAN WHO HAS A SUSPECTED OR POSSIBLE DISABILITY, WHICH DOES NOT REQUIRE THAT HE BE HOSPITALIZED, BE RETAINED IN AN ACTIVE DUTY FULL PAY STATUS AFTER HIS SCHEDULED RELEASE DATE, PENDING A FINAL DETERMINATION BY THE SECRETARY CONCERNED OF THE QUESTION WHETHER HE HAS A SERVICE CONNECTED DISABILITY, ONLY IN ORDER TO ASSURE HIS ELIGIBILITY FOR RECEIPT OF DISABILITY BENEFITS?)

"2. IF A SERVICEMAN, HAVING A SUSPECTED OR POSSIBLE DISABILITY IS MISTAKINGLY FOUND FIT FOR DUTY, AND IS ACCORDINGLY RELEASED FROM ACTIVE DUTY AND ASSIGNED TO READY RESERVE DUTIES, AND THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED, ACTING THROUGH A PHYSICAL EVALUATION BOARD, OR A CORRECTION BOARD, OR BOTH, LATER DETERMINES THAT HE WAS IN FACT UNFIT WHILE HE WAS ON ACTIVE DUTY, IS THE SERVICEMAN ENTITLED TO HAVE THE SUBSEQUENT RESERVE TIME, UP TO THE DATE OF HIS SEPARATION FOR PHYSICAL DISABILITY, IF SUCH SERVICE IS OTHERWISE CREDITABLE, CREDITED IN DETERMINING THE AMOUNT OF DISABILITY SEVERANCE PAY DUE UNDER THE STATUTES?

"3. IF ONLY QUESTION NO. 2 IS ANSWERED IN FAVOR OF THE SERVICEMAN, WOULD YOUR OFFICE REQUIRE IN MY CASE, IN ORDER TO HONOR A CLAIM FOR PAYMENT OF THE ACTUAL AMOUNT OF DISABILITY SEVERANCE PAY DUE UNDER THE STATUTES (LESS THE $3,691.20 ALREADY PAID TO ME), THAT THE JUDGMENT OF THE COURT OF CLAIMS BE VACATED (ON MOTION OF THE GOVERNMENT), AND/OR THAT THE SECRETARY OF TRANSPORTATION REINSTATE OR ACKNOWLEDGE SEPTEMBER 1, 1967, AS MY DEJURE SEPARATION DATE?"

OUR DECISION OF JUNE 19, 1967, WAS RENDERED AFTER CAREFUL CONSIDERATION OF ALL THE FACTS IN YOUR CASE AND THE LAW APPLICABLE THERETO. YOU HAVE PRESENTED NO EVIDENCE OR ARGUMENT NOT PREVIOUSLY CONSIDERED WHICH WOULD WARRANT RECONSIDERATION OF THAT DECISION. FURTHERMORE, UNDER 10 U.S.C. 1552(A), WE ARE WITHOUT JURISDICTION TO REVIEW THE DECISION OF THE COAST GUARD BOARD FOR THE CORRECTION OF MILITARY RECORDS AND 28 U.S.C. 2519 BARS ANY FURTHER CONSIDERATION BY US OF THE MATTERS BEFORE THE COURT OF CLAIMS IN THE CASE OF KIMMEL V UNITED STATES, CT. CL. NO. 516-69, DECIDED DECEMBER 10, 1971. HOWEVER, WE OFFER THE FOLLOWING COMMENTS IN ORDER TO HELP YOU UNDERSTAND THE PRESENT POSTURE OF YOUR CASE.

THE UNDISPUTED FACTS OF YOUR CASE NEED NOT BE REPEATED HERE. THAT YOUR CASE DID NOT COME WITHIN THE PROVISIONS OF 10 U.S.C. 1203 WAS SO WELL SETTLED THAT THE QUESTION WAS NOT BEFORE US FOR CONSIDERATION IN 46 COMP. GEN. 867 (1967). SEE DECISIONS CITED AT PAGE 869 AND 47 COMP. GEN. 716 (1968), COPY HEREWITH. THUS, OUR DECISION HELD IN EFFECT THAT YOU WERE NOT ENTITLED TO PAYMENT OF DISABILITY SEVERANCE PAY UNDER CHAPTER 61, TITLE 10, U.S.C. (10 U.S.C. 1212) FOR THE REASON THAT YOU WERE NOT ENTITLED TO BASIC PAY AT THE TIME YOU WERE DETERMINED TO BE UNFIT FOR MILITARY DUTY AS REQUIRED BY 10 U.S.C. 1203 AND, MORE SPECIFICALLY, YOU WERE NOT ENTITLED TO SUCH PAY UNDER 10 U.S.C. 1206 BECAUSE YOUR DISABILITY WAS NOT INCURRED IN A SITUATION COVERED BY SECTION 1206, THAT IS, DURING A PERIOD OF DUTY FOR 30 DAYS OR LESS. SINCE THERE WAS NO LEGAL BASIS FOR PAYMENT OF DISABILITY SEVERANCE PAY UNDER THE FACTS EXISTING IN YOUR CASE, THE ONLY AVENUE OF RELIEF OPEN TO YOU WAS UNDER 10 U.S.C. 1552 AS WE SUGGESTED IN OUR DECISION. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED BY SAYING THAT IN ORDER TO BE ENTITLED TO THE BENEFITS OF 10 U.S.C. 1201, 1202 AND 1203 A MEMBER MUST BE ENTITLED TO BASIC PAY AT THE TIME THE SECRETARY'S DETERMINATION OF DISABILITY IS MADE. 33 COMP. GEN. 339 (1954), 35 ID. 626 (1956), 43 ID. 155 (1963), AND 47 ID. 716 (1968).

YOU MADE APPLICATION TO THE COAST GUARD BOARD FOR THE CORRECTION OF MILITARY RECORDS, WHICH BOARD CHANGED YOUR RECORD TO SHOW THAT YOU WERE UNFIT TO SERVE IN THE MILITARY SERVICE ON SEPTEMBER 4, 1964, WHILE SERVING IN THE RANK OF LIEUTENANT, JUNIOR GRADE, AND THAT YOU WERE DISCHARGED WITH DISABILITY SEVERANCE PAY ON SEPTEMBER 4, 1964. UNDER THE RECORDS AS CORRECTED YOU CEASED TO BE A MEMBER OF THE UNIFORMED SERVICES ON SEPTEMBER 4, 1964. IN DECISION OF DECEMBER 10, 1971, THE COURT OF CLAIMS FOUND THAT THE ACTION OF THE CORRECTION BOARD WAS NOT ARBITRARY OR CAPRICIOUS, UNSUPPORTED BY SUBSTANTIAL EVIDENCE OR NOT IN ACCORDANCE WITH APPLICABLE LAWS, REGULATIONS OR POLICIES AND, IN EFFECT, HELD THAT UNDER THE WELL- SETTLED RULE OF THE COURT, IT HAD NO JURISDICTION TO REVIEW THE BOARD'S DECISION. THE QUESTION BEFORE THE COURT WAS WHETHER YOU WERE ENTITLED TO AN INCREASE IN DISABILITY SEVERANCE PAY ON ACCOUNT OF SERVICE RENDERED AFTER SEPTEMBER 4, 1964, AND IT WAS HELD THAT YOU WERE NOT SO ENTITLED. HAVING SO HELD, THE DECISION OF THE CORRECTION BOARD MUST STAND AND ON THE BASIS OF THE CORRECTED RECORD, DENIAL OF YOUR CLAIM FOR INCREASED DISABILITY SEVERANCE PAY IS REQUIRED BY THE PROVISIONS OF 10 U.S.C. 1552(C) AND 28 U.S.C. 2519. SEE 41 COMP. GEN. 3 (1961) AND CASES CITED IN THAT DECISION.

ACCORDINGLY, THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER.

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