B-151296, MAY 9, 1963

B-151296, MAY 9, 1963

TO LAW OFFICES, KING AND KING:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 5, 1963, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 2, 1963, WHICH DISALLOWED THE CLAIM OF FLOYD PARKS, CHIEF WATER TENDER, USN, RETIRED, FOR THE DIFFERENCE BETWEEN DISABILITY RETIRED PAY AND THE RETIRED PAY ACTUALLY RECEIVED BY HIM DURING THE PERIOD JANUARY 1, 1953, TO THE DATE OF SETTLEMENT OF HIS CLAIM. THE CLAIM WAS DISALLOWED FOR THE REASON THAT THE OFFICIAL RECORDS SHOWED HIS RETIREMENT BY REASON OF COMPLETION OF 30 YEARS' SERVICE ON JANUARY 1, 1943, AND NOT BE REASON OF PHYSICAL DISABILITY.

IT IS STATED IN YOUR LETTER THAT THE ABOVE DISALLOWANCE SETTLEMENT FAILED TO TAKE INTO CONSIDERATION THE DISABILITY WHICH THE CLAIMANT INCURRED WHILE ON ACTIVE DUTY DURING WORLD WAR II. IT IS FURTHER STATED THAT THE COPY OF LETTER DATED APRIL 8, 1946, OF THE BUREAU OF MEDICINE AND SURGERY, ACCOMPANYING YOUR LETTER, EVIDENCES THAT CLAIMANT APPEARED BEFORE A BOARD OF MEDICAL SURVEY ON JULY 28, 1945, WHICH FOUND HIM PERMANENTLY UNFIT FOR FURTHER SERVICE BY REASON OF AN ULCER, DUODENUM, INCURRED IN LINE OF DUTY. YOU CONTEND THAT ON THE BASIS OF THIS FINDING CLAIMANT WAS RELEASED TO INACTIVE DUTY--- "RE-RETIRED---" ON SEPTEMBER 15, 1945. YOU CONCLUDE THAT OUR SETTLEMENT FAILED TO GIVE EFFECT TO THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, AND THE CASE OF WILSON V. UNITED STATES, CT.CL. NO. 465-59, DECIDED NOVEMBER 7, 1962, TO WHICH THE PRESENT MATTER IS SAID TO BE COMPARABLE.

IT APPEARS FROM REPORTS FURNISHED US BY THE DEPARTMENT OF THE NAVY THAT CLAIMANT WAS TRANSFERRED TO THE FLEET RESERVE ON APRIL 24, 1929, WITH MORE THAN 16 YEARS' SERVICE; THAT HE WAS RECALLED AND SERVED ON ACTIVE DUTY FROM MAY 14, 1941, TO SEPTEMBER 15, 1945; THAT HE WAS PLACED ON THE RETIRED LIST OF THE NAVY AS OF JANUARY 1, 1943, HAVING COMPLETED 30 YEARS' SERVICE ON DECEMBER 7, 1942; THAT IT WAS THOUGHT THAT HE WAS NOT ENTITLED TO THE BENEFITS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949; THAT NO ELECTION FORMS WERE FORWARDED TO HIM; AND THAT BY LETTER DATED MARCH 5, 1963, THE BUREAU OF MEDICINE AND SURGERY REPORTED TO OUR OFFICE THAT A REVIEW OF CLAIMANT'S SERVICE MEDICAL RECORD INDICATES THAT HE WAS RETIRED BY REASON OF COMPLETION OF 30 YEARS' SERVICE AND NOT BE REASON OF PHYSICAL DISABILITY.

THE COURT OF CLAIMS DECISION OF NOVEMBER 7, 1962, CITED BY YOU, NOT ONLY DETERMINED THE CASE OF FRANK BRIGGS WILSON, BUT ALSO THE CASES OF JUAN S. AFLAGUE, ET AL. (PAUL F. FORSTER, PLAINTIFF NO. 13) V. UNITED STATES, CT.CL. NO. 212-56, AND RUSH C. COBB, ET AL. (GEORGE C. ELLIS, PLAINTIFF NO. 2), V. UNITED STATES, CT.CL. NO. 430-56. THE WILSON CASE WAS DECIDED IN FAVOR OF THE PLAINTIFF, WHEREAS THE FORSTER AND ELLIS CASES WERE DECIDED IN FAVOR OF THE GOVERNMENT.

THE COURT HELD, AS TO FORSTER AND ELLIS, THAT---

"WE CANNOT DECIDE THE MERITS OF THE CLAIMS OF FORSTER AND ELLIS BECAUSE, SO FAR AS THE RECORD SHOWS, THEY TOOK NO ACTION, WITHIN THE PRESCRIBED FIVE-YEAR PERIOD, TO ELECT TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF TITLE IV OF THE 1949 ACT. SECTION 411, 63 STAT. 802, 824, EXPRESSLY PROVIDED THAT A MEMBER OF THE FOUR CLASSES MADE ELIGIBLE FOR SUCH PAY BY THAT SECTION "MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DAY OF THIS TITLE * * TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT * * *.' TITLE IV OF THE 1949 ACT BECAME EFFECTIVE IN OCTOBER 1949, AND EXECUTIVE ORDER NO. 10124, 15 F.R. 2375, DIRECTED THAT THE ELECTION BE MADE PRIOR TO OCTOBER 1, 1954. THE ORDER ALSO DECLARED THAT SERVICEMEN AND FORMER SERVICEMEN SHOULD CONTINUE TO RECEIVE THE RETIRED PAY AUTHORIZED BY THE LAW IN EFFECT PRIOR TO THE 1949 ACT UNLESS A TIMELY ELECTION WAS MADE. THESE PROVISIONS OF THE ACT AND THE ORDER EFFECTIVELY PRECLUDE FORSTER AND ELLIS, WHO DID NOTHING TO MAKE AN ELECTION OR VINDICATE THEIR CLAIM UNTIL WELL AFTER OCTOBER 1, 1954, FROM RECOVERING UNDER TITLE IV. * * *"

IN ANSWER TO FORSTER AND ELLIS' CONTENTION THAT BECAUSE THE NAVY DID NOT COMMUNICATE WITH THEM AS TO THEIR STATUS AND BENEFITS UNDER SECTION 411 AS DIRECTED BY THE EXECUTIVE ORDER, THE ELECTION REQUIREMENT TIME LIMITATION WAS EXCUSED OR TOLLED, THE COURT CONTINUED:

"WE CANNOT ACCEPT THIS POSITION AT LEAST WHERE, AS WITH ELLIS AND FORSTER, THE SERVICE SIMPLY FAILED TO COMMUNICATE WITH THE SERVICEMAN AND TO TELL HIM THAT HE WAS ENTITLED TO CHOOSE UNDER SECTION 411. THESE ARE NOT CASES (SO FAR AS WE ARE TOLD) IN WHICH THE SERVICE AFFIRMATIVELY GAVE MISINFORMATION, BY COMMISSION OR OMISSION, WHICH INDUCED OR COMPELLED THE SAILOR TO MAKE A DECISION LESS FAVORABLE THAN THAT TO WHICH HE WAS ENTITLED UNDER THE LAW. * * * THE NAVY DID NOTHING AT ALL. * * * THE EXECUTIVE ORDER AS WE READ IT, DID NOT SUPERIMPOSE, AS A PREREQUISITE TO THE REQUIREMENT OF AN ELECTION, THE SPECIAL CONDITION THAT THE SERVICE CORRECTLY INFORM THE MAN OF HIS RIGHTS. THIS PORTION OF THE ORDER, ADDRESSED TO THE SERVICE SECRETARIES, WAS ESSENTIALLY DIRECTORY, DESIGNED TO GIVE AS WIDE DISTRIBUTION AS POSSIBLE TO THE BENEFITS OF THE NEW LEGISLATION. WE DO NOT FIND ANY PURPOSE TO COMPLICATE THE ADMINISTRATION OF THE STATUTE BY DEMANDING THAT THE SERVICES, AT PERIL OF POSTPONING THE FIVE-YEAR ELECTION PERIOD, REACH ALL THOSE INDIVIDUALS WHO WOULD ULTIMATELY BE FOUND ELIGIBLE UNDER SECTION 411 AND ACCURATELY INFORM THEM OF THEIR RIGHTS. * * *"

AS TO PLAINTIFF WILSON, THE COURT FOUND THAT HE HAD MADE A SUFFICIENT ELECTION WITHIN THE FIVE-YEAR ELECTION PERIOD, AND ON THIS BASIS FOUND IN HIS FAVOR. WE CANNOT AGREE THAT THE PRESENT MATTER IS COMPARABLE TO THE WILSON CASE. ON THE CONTRARY, THE RECORD BEFORE US INDICATES THAT IT IS VERY SIMILAR TO THE FORSTER AND ELLIS CASES, THERE BEING NO EVIDENCE OF AN ELECTION WITHIN THE TIME LIMITATION.