B-161131, APR. 18, 1967

B-161131, APR. 18, 1967

TO MR. RAYMOND B. NIX:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 13, 1967, REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED FEBRUARY 28, 1967, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PAY AND ALLOWANCES AS A MEMBER OF THE UNITED STATES NAVY BELIEVED TO BE DUE AS A RESULT OF ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS.

THE EVIDENCE CONSIDERED BY THE BOARD INDICATES THAT DURING A PERIOD OF LEAVE WHILE SERVING IN THE UNITED STATES NAVY YOU WERE INVOLVED IN AN AUTOMOBILE ACCIDENT IN SEPTEMBER 1927; THAT YOU WERE ARRESTED, PLACED IN JAIL AND CHARGED WITH DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR; THAT UPON YOUR AGREEMENT TO PAY THE DAMAGES INCURRED, THE CHARGE WAS DROPPED AND YOU WERE RELEASED TO THE NAVAL AUTHORITY THEN PRESENT; AND THAT SINCE YOU FAILED TO PAY THE DAMAGES AS AGREED BY YOU, YOU WERE SEPARATED FROM THE NAVAL SERVICE ON MAY 23, 1928, WITH AN UNDESIRABLE DISCHARGE BY REASON OF UNFITNESS. ON JANUARY 15, 1965, YOU PETITIONED THE BOARD FOR CORRECTION OF NAVAL RECORDS TO CORRECT YOUR RECORD TO SHOW THAT YOU WERE ILLEGALLY DISCHARGED AND YOU ASKED FOR BACK PAY AT THE RATE OF $60 PER MONTH FROM MAY 23, 1928.

THE BOARD REVIEWED YOUR APPLICATION AND ON FEBRUARY 28, 1966, REACHED THE DECISION THAT YOUR UNDESIRABLE DISCHARGE DATED MAY 23, 1928, SHOULD BE CHANGED TO A GENERAL DISCHARGE UNDER HONORABLE CONDITIONS BY REASON OF UNFITNESS. THE BOARD RECOMMENDED THAT YOU BE PAID ALL MONIES FOUND DUE AS A RESULT OF THE CORRECTION OF YOUR NAVAL RECORD. THE DECISION WAS REVIEWED AND APPROVED BY THE UNDER SECRETARY OF THE NAVY ON MARCH 3, 1966, AND A GENERAL DISCHARGE WAS ISSUED APRIL 20, 1966, SHOWING THAT YOU WERE DISCHARGED FROM THE UNITED STATES NAVY ON MAY 23, 1928, UNDER HONORABLE CONDITIONS.

AN AUDIT OF YOUR PAY ACCOUNT DISCLOSED THAT YOU WERE PROPERLY PAID THROUGH MAY 23, 1928, AND THAT YOU ALSO RECEIVED TRAVEL ALLOWANCE FROM SAN FRANCISCO, CALIFORNIA TO DALLAS, TEXAS, IN THE AMOUNT OF $96.70. THEREFORE, NO AMOUNT WAS FOUND TO BE DUE YOU AS THE RESULT OF THE CORRECTION OF YOUR RECORD SINCE ONLY THE CHARACTER, NOT THE DATE, OF YOUR DISCHARGE WAS CHANGED. THE EFFECTIVE DATE OF YOUR DISCHARGE, MAY 23, 1928, REMAINED UNCHANGED.

WHILE YOU ACKNOWLEDGE RECEIPT OF ALL PAY AND ALLOWANCES DUE YOU UP TO THE DATE OF YOUR DISCHARGE ON MAY 23, 1928, YOU NOW CONTEND THAT YOUR SEPARATION FROM THE NAVY WAS "UNJUST AND WRONG" AND YOU FEEL THAT YOU "SHOULD BE COMPENSATED FOR THE DISHONORABLE INJUSTICE" YOU HAVE SUFFERED SINCE MAY 23, 1928. THUS, YOUR CLAIM FOR PAY SUBSEQUENT TO THAT DATE, DURING WHICH PERIOD YOU RENDERED NO SERVICE, IS IN THE NATURE OF A CLAIM FOR DAMAGES YOU SAY YOU SUFFERED AS THE RESULT OF YOUR DISCHARGE, BASED ON YOUR BELIEF THAT YOU WERE ILLEGALLY SEPARATED FROM THE SERVICE.

A CLAIM OF THIS TYPE IS ONE SOUNDING IN TORT. GENERALLY, THE UNITED STATES IS NOT LIABLE FOR INJURIES OR DAMAGES TO THE PERSON OR PROPERTY OF AN INDIVIDUAL CAUSED BY TORTS OR NEGLIGENCE OF ITS OFFICERS OR EMPLOYEES OR BY ITS AUTHORIZED ACTIVITIES. THIS RULE IS KNOWN AS THE DOCTRINE OF SOVEREIGN OR GOVERNMENTAL IMMUNITY AND, THEREFORE, THE FEDERAL GOVERNMENT IS NOT LIABLE FOR TORTS COMMITTED IN ITS SERVICE BY ITS OFFICERS OR EMPLOYEES UNLESS IT CONSENTS TO SUCH LIABILITY. SUCH CONSENT HAS BEEN GIVEN IN REGARD TO CERTAIN TORT CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671-2680. THE ACT CONFERS ON THE HEAD OF EACH FEDERAL AGENCY CONCLUSIVE AUTHORITY TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE CERTAIN CLAIMS FOR MONEY DAMAGES OF $2,500 OR LESS AGAINST THE UNITED STATES ACCRUING ON OR AFTER JANUARY 1, 1945. SEE 28 U.S.C. 2672. EXCLUSIVE JURISDICTION FOR CIVIL ACTIONS ON CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES IN EXCESS OF THAT AMOUNT IS VESTED IN THE UNITED STATES DISTRICT COURTS. SEE 28 U.S.C. 1346 (B). THIS OFFICE HAS NO AUTHORITY TO CONSIDER YOUR TORT CLAIM.

UNDER 10 U.S.C. 1552 THE SECRETARY OF A MILITARY DEPARTMENT MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. THE BOARD FOR CORRECTION OF NAVAL RECORDS WITH THE APPROVAL OF THE UNDER SECRETARY OF THE NAVY HAS FOUND THAT A CHANGE IN YOUR DISCHARGE FROM UNDESIRABLE TO A GENERAL DISCHARGE WAS WARRANTED. THIS OFFICE HAS NO AUTHORITY TO REVIEW CORRECTIONS MADE UNDER 10 U.S.C. 1552. ACCORDINGLY, THERE IS NO ACTION WE MAY TAKE IN THE MATTER.

THE SETTLEMENT DATED FEBRUARY 28, 1967, AND DISCHARGE CERTIFICATE RECEIVED WITH YOUR LETTER OF MARCH 13, 1967, ARE RETURNED HEREWITH.