B-100214, APR. 27, 1956
Highlights
IT WAS HELD THAT A DETERMINATION MADE BY THE SECRETARY OF THE NAVY IN 1950 THAT COMMANDER KUTZ'S COMMENDATION FOR EXEMPLARY CONDUCT ON THE OCCASION OF THE SINKING OF THE U.S.S. WAS FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT. - AND WHICH WAS NOT BASED ON ANY NEW FACTS OR EVIDENCE. IT LATER WAS SHOWN THAT THE 1950 DETERMINATION WAS BASED ON NEW INFORMATION STATED TO HAVE BEEN RECEIVED FROM GERMAN SOURCES BY THE BRITISH ADMIRALITY THAT PRIOR TO THE LOSS OF THE GERMAN SUBMARINE U 156. HER OFFICERS CLAIMED TO HAVE TORPEDOED THE U.S.S. THE COURT HELD THAT THE ADDITIONAL INFORMATION WAS SUBSTANTIAL EVIDENCE OF SUFFICIENT PROBATIVE VALUE TO JUSTIFY THE REDETERMINATION. THE COURT AGREED THAT THE EVIDENCE WAS SUCH AS TO WARRANT THE CONCLUSION REACHED BY THE SECRETARY AND AWARDED JUDGMENT ALLOWING THE PLAINTIFF THE BENEFITS OF THE 1947 ACT.
B-100214, APR. 27, 1956
TO MR. L. A. CAMPBELL, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:
BY LETTER OF MARCH 30, 1956, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF MARCH 9, 1956, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE JUDGMENT ENTERED ON NOVEMBER 8, 1955, IN THE CASE OF FRANK G. KUTZ V. UNITED STATES, C.CLS. NO. 291-52, SHOULD BE FOLLOWED IN ADJUSTING COMMANDER KUTZ'S RETIRED PAY ACCOUNT ON AND AFTER NOVEMBER 9, 1955.
IN OUR DECISION OF APRIL 26, 1951, 31 COMP. GEN. 416 (REFERENCE (C) OF YOUR LETTER), IT WAS HELD THAT A DETERMINATION MADE BY THE SECRETARY OF THE NAVY IN 1950 THAT COMMANDER KUTZ'S COMMENDATION FOR EXEMPLARY CONDUCT ON THE OCCASION OF THE SINKING OF THE U.S.S. SAN DIEGO ON JULY 19, 1918, WAS FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT, WHICH REVERSED AN EARLIER DETERMINATION BY THE SECRETARY'S PREDECESSOR -- BASED ON A BELIEF THAT THE VESSEL STRUCK A MINE--- AND WHICH WAS NOT BASED ON ANY NEW FACTS OR EVIDENCE, DID NOT ENTITLE HIM TO THE INCREASED RETIRED PAY BENEFITS AUTHORIZED BY SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, FOR NAVAL OFFICERS ESPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT. IT LATER WAS SHOWN THAT THE 1950 DETERMINATION WAS BASED ON NEW INFORMATION STATED TO HAVE BEEN RECEIVED FROM GERMAN SOURCES BY THE BRITISH ADMIRALITY THAT PRIOR TO THE LOSS OF THE GERMAN SUBMARINE U 156, HER OFFICERS CLAIMED TO HAVE TORPEDOED THE U.S.S. SAN DIEGO. IN ITS DECISION RENDERED JUNE 7, 1955, THE COURT HELD THAT THE ADDITIONAL INFORMATION WAS SUBSTANTIAL EVIDENCE OF SUFFICIENT PROBATIVE VALUE TO JUSTIFY THE REDETERMINATION. THE COURT AGREED THAT THE EVIDENCE WAS SUCH AS TO WARRANT THE CONCLUSION REACHED BY THE SECRETARY AND AWARDED JUDGMENT ALLOWING THE PLAINTIFF THE BENEFITS OF THE 1947 ACT. SUBSEQUENTLY ADVISED THE ATTORNEY GENERAL THAT IN OUR OPINION THE CASE DID NOT PRESENT SUCH A QUESTION AS WOULD WARRANT ANY FURTHER PROCEEDINGS.