B-147096, OCT. 12, 1965, 45 COMP. GEN. 172

B-147096, OCT. 12, 1965, 45 COMP. GEN. 172

STATUTES OF LIMITATION - CLAIMS - DATE OF ACCRUAL - RECORD CORRECTION AN APPROVED CORRECTION BOARD ACTION WHICH PLACED AN OFFICER ON THE DISABILITY RETIRED LIST RETROACTIVE TO RELEASE FROM THE SERVICE IN 1946 WHEN THE COURT OF CLAIMS HAD PREVIOUSLY ESTABLISHED THE OFFICER'S RIGHT UNDER THE LAW TO DISABILITY RETIREMENT PAY RETROACTIVE TO AN EARLIER DATE THAN 1946 IS, UNDER THE RULE IN HAISLIP V. UNITED STATES, 152 CT. CL. 339, WITHOUT EFFECT TO CHANGE AN ENTITLEMENT TO DISABILITY RETIRED PAY ALREADY EXISTING AND, THEREFORE, THE CORRECTION BOARD ACTION DOES NOT REMOVE THE EFFECT OF THE 6-YEAR PERIOD OF LIMITATION IN 28 U.S.C. 2501 OR THE 10-YEAR PERIOD OF LIMITATION IN 31 U.S.C. 71A SO AS TO PERMIT PAYMENT OF DISABILITY RETIRED PAY FOR THE PERIOD BARRED BY THE STATUTE OF LIMITATIONS.

TO LIEUTENANT COLONEL J. J. VANYA, DEPARTMENT OF THE AIR FORCE, OCTOBER 12, 1965:

REFERENCE IS MADE TO YOUR UNDATED LETTER AND ENCLOSURES (RECEIVED HERE JULY 8, 1965) REQUESTING A DECISION AS TO THE PROPRIETY OF REFUNDING TO CAPTAIN JOHN M. BARNES, AO 311077, USAF, RETIRED, THE AMOUNT OF $2,779.82, REPRESENTING CONTINGENCY OPTION ACT DEDUCTIONS MADE IN HIS RETIRED PAY ACCOUNT FOR THE PERIOD MARCH 1, 1954 TO JANUARY 31, 1965, INCLUSIVE. THE MATTER HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-856 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501-505, BECAME EFFECTIVE NOVEMBER 1, 1953. THE PROVISIONS OF THAT ACT, AS AMENDED BY PUBLIC LAW 87-381, OCTOBER 4, 1961, 75 STAT. 810-812, ARE NOW CODIFIED IN CHAPTER 73, RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, SECTIONS 1431-1446, TITLE 10, U.S.C. (1964 ED.). THE RECORD SHOWS THAT CAPTAIN BARNES EXECUTED AN ELECTION ON MARCH 5, 1954, OF OPTION 3 COMBINED WITH OPTION 4 PROVIDING FOR AN ANNUITY COMPUTED AT ONE-EIGHTH OF REDUCED RETIRED PAY. YOUR LETTER DISCLOSES THAT CAPTAIN BARNES WAS RETIRED ON AUGUST 31, 1963, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1331 AND THAT COVERAGE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN ON THE BASIS ABOVE INDICATED WAS ESTABLISHED EFFECTIVE FROM SEPTEMBER 1, 1963.

THE DECISION RENDERED IN HIS FAVOR ON DECEMBER 13, 1963, IN JOHN M. BARNES V. UNITED STATES, CT. CL. NO. 330-61 (163 CT. CL. 321), JUDICIALLY ESTABLISHED CAPTAIN BARNES' RIGHT TO RECEIVE DISABILITY RETIREMENT PAY FROM "IN OR AROUND APRIL, 1944.' BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION CERTIFICATION DATED MAY 26, 1964, CAPTAIN BARNES WAS ALLOWED $27,041.56, REPRESENTING THE NET AMOUNT FOUND TO BE DUE HIM UNDER THE DECISION OF DECEMBER 13, 1963, AS DISABILITY RETIREMENT PAY FOR THE PERIOD AUGUST 1, 1955 (UNDER THE PROVISIONS OF 28 U.S.C. 2501 THE COURT OF CLAIMS WAS WITHOUT JURISDICTION AS TO ANY PART OF THE PERIOD PRECEDING THE MONTH OF AUGUST 1955) TO DECEMBER 13, 1963, INCLUSIVE, LESS VETERANS ADMINISTRATION COMPENSATION PAYMENTS FOR THAT SAME PERIOD AND DEDUCTING ALSO THE RETIRED PAY HE HAD RECEIVED UNDER 10 U.S.C. 1331 FOR THE PERIOD SEPTEMBER 1, 1963 TO DECEMBER 13, 1963.

A CLAIM FOR DISABILITY RETIREMENT PAY (PRESENTED BY CAPTAIN BARNES' ATTORNEY IN LETTER NOVEMBER 5, 1963) WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON NOVEMBER 8, 1963. THEREFORE, CAPTAIN BARNES WAS ENTITLED TO BE PAID DISABILITY RETIREMENT PAY (ON A BASIS CONSISTENT WITH THE COURT OF CLAIMS DECISION OF DECEMBER 13, 1963) RETROACTIVE TO NOVEMBER 8, 1953, ONLY, THE PERIOD PRECEDING THE LATTER DATE BEING EXPRESSLY BARRED BY THE PROVISIONS OF 31 U.S.C. 71A.

INASMUCH AS THE RECORD SHOWS THAT CAPTAIN BARNES WAS LEGALLY ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY PRIOR TO THE MONTH OF MARCH 1954, HIS ELECTION OF OPTIONS 3 AND 4 FOR AN ANNUITY AT ONE EIGHTH REDUCED RETIRED PAY EXECUTED BY HIM ON MARCH 5, 1954, IS REQUIRED TO BE GIVEN EFFECT AS OF MARCH 1, 1954. ACCORDINGLY, THE ACTION TAKEN BY YOUR OFFICE IN DEDUCTING THE AMOUNT STATED, $2,779.82 (IN THE ABSENCE OF SUPPORTING DATA IT IS ASSUMED THAT IS THE CORRECT AMOUNT), FROM THE DISABILITY RETIREMENT PAY FOUND DUE CAPTAIN BARNES FOR THE PERIOD MARCH 1, 1954 TO JANUARY 31, 1965, ON ACCOUNT OF DEDUCTIONS REQUIRED BY THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WAS CORRECT AND PROPER. SEE B-144851, MAY 11, 1961, AND THE DECISIONS THEREIN CITED. PAYMENT ON THE VOUCHER RECEIVED WITH YOUR LETTER IS NOT AUTHORIZED AND IT WILL BE RETAINED IN THIS OFFICE.

YOU STATE THAT ON MAY 21, 1964, THE SECRETARY OF THE AIR FORCE CORRECTED CAPTAIN BARNES' MILITARY RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552---

TO SHOW THAT HE WAS NOT RETIRED 31 AUGUST 1963 UNDER THE PROVISIONS OF SECTION 1331, TITLE 10, U.S. CODE, BUT THAT HE WAS PLACED ON THE DISABILITY RETIRED LIST 20 AUGUST 1946 UNDER SECTION 5, ACT OF 3 APRIL 1939, AS AMENDED (P.L. 18, 76TH CONGRESS).

A COPY OF VOUCHER NO. P-4600, IN YOUR JANUARY 1965 ACCOUNTS, CARRYING SYMBOL NO. 5947, SHOWS A PAYMENT ON JANUARY 8, 1965, TO CAPTAIN BARNES IN THE NET AMOUNT OF $24,638.92, CITING AS AUTHORITY THEREFOR, 10 U.S.C. 1552. THE NET AMOUNT OF $24,638.92 THAT WAS PAID TO CAPTAIN BARNES IS SHOWN AS $55,009.02 (COMPUTATION OF THIS GROSS AMOUNT HAS BEEN VERIFIED), REPRESENTING DISABILITY RETIREMENT PAY FOR THE PERIOD AUGUST 21, 1946 TO MAY 20, 1964, INCLUSIVE, LESS (1) THE AMOUNT OF RETIRED PAY HE RECEIVED FOR THE PERIOD SEPTEMBER 1, 1963 TO MAY 20, 1964, (2) LESS THE AMOUNT PAID TO HIM UNDER THE COURT OF CLAIMS DECISION OF DECEMBER 13, 1963, ABOVE REFERRED TO, (3) LESS DEDUCTIONS FOR RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, AND (4) LESS VETERANS ADMINISTRATION COMPENSATION BENEFITS.

AS PREVIOUSLY STATED, THE COURT OF CLAIMS RENDERED A DECISION ON DECEMBER 13, 1963, IN FAVOR OF CAPTAIN BARNES ON HIS SUIT FOR "RETIRED PAY FOR THE PERIOD COMMENCING AUGUST 21, 1946, AND EXTENDING TO SUCH TIME AS THE COURT MAY ENTER JUDGMENT HEREIN" (PAR. XVII, CT. CL. PET. NO. 330-61). THE JUDGMENT IN THE AMOUNT OF $27,041.56 RENDERED BY THE COURT ON MAY 18, 1964, COVERS THE PERIOD AUGUST 1, 1955 TO DECEMBER 13, 1963, INCLUSIVE. UNDER 28 U.S.C. 2501 THE COURT WAS WITHOUT JURISDICTION AS TO ANY PART OF THE PERIOD PRECEDING THE MONTH OF AUGUST 1955.

IN REACHING THE CONCLUSION THAT THE PLAINTIFF, CAPTAIN BARNES, WAS ENTITLED TO THE DISABILITY RETIREMENT PAY CLAIMED BY HIM, THE COURT MADE THE FOLLOWING SPECIFIC STATEMENTS:

PLAINTIFF BASES HIS ARGUMENT UPON THE CONTINUING CLAIM THEORY. ALLEGES THAT THE FAILURE OF THE ARMY TO RELEASE HIM PURSUANT TO THE WAR DEPARTMENT MEMORANDUM THEN IN FORCE WAS CONTRARY TO LAW. CONSEQUENTLY, HE ARGUES, HE WAS THEN ENTITLED TO DISABILITY RETIRED PAY WHICH SHOULD HAVE BEEN BUT WAS NOT PAID TO HIM COMMENCING IN OR AROUND APRIL 1944. THEREFORE CLAIMS THE AMOUNT OF SUCH DISABILITY RETIRED PAY THAT SHOULD HAVE BEEN PAID TO HIM DURING THE PERIOD COMMENCING SIX YEARS PRIOR TO THE FILING OF HIS PETITION, THAT PERIOD BEING ALL THAT REMAINS OPEN TO HIM UNDER OUR DECISIONS CONCERNING CONTINUING CLAIMS. * * * WE THINK THAT PLAINTIFF IS CORRECT. PLAINTIFF DID APPEAR BEFORE A RETIRING BOARD ON MARCH 2, 1944. THAT BOARD DID FIND PLAINTIFF TO BE ,INCAPACITATED FOR ACTIVE SERVICE; " THAT THE INCAPACITY WAS AN "INCIDENT OF THE SERVICE; " THAT IT "ORIGINATED IN FEBRUARY 1942; " AND THAT IT WAS PERMANENT.'

WAR DEPARTMENT MEMORANDUM W-605-44 IN EFFECT AT THAT TIME, DIRECTED THAT "OFFICERS FOUND PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE * * * BY ARMY RETIRING BOARDS * * * (A) * * * WHO DO NOT DESIRE TO REMAIN ON ACTIVE DUTY WILL BE RELIEVED THEREFROM.'

PLAINTIFF * * * CLEARLY INDICATED HIS DESIRE TO BE RELIEVED FROM ACTIVE DUTY. YET, CONTRARY TO WAR DEPARTMENT MEMORANDUM W-605-44, SUPRA, HE WAS NOT RELIEVED. BUT THAT MEMORANDUM, PROMULGATED UNDER THE AUTHORITY OF THE SECRETARY OF WAR, HAD THE FORCE AND EFFECT OF LAW, AND WAS BINDING UPON THE WAR DEPARTMENT AND ITS COMPONENTS. * * * IN LIGHT OF THE WAR DEPARTMENT MEMORANDUM AND PLAINTIFF'S CLEAR EXPRESSION OF HIS DESIRES THEREUNDER, HIS SUBSEQUENT RETENTION ON LIMITED SERVICE STATUS WAS NOT ONLY WRONGFUL BUT ILLEGAL. AS A MATTER OF LAW, PLAINTIFF WAS RELIEVED FROM LIMITED SERVICE. HE HAD THE RIGHT, THEN AND THERE, NOT ONLY TO "GET OUT" * * * BUT TO COLLECT DISABILITY RETIREMENT PAY FROM THE TIME OF THE RELEASE DUE HIM UNDER THE WAR DEPARTMENT MEMORANDUM. HAD HE THEN BEEN RELEASED AS WAS HIS RIGHT AS A MATTER OF LAW, NO OTHER RETIRING BOARD WOULD EVER HAVE MET, AND NO CONTROVERSY OVER PLAINTIFF'S RIGHT TO DISABILITY RETIREMENT PAY WOULD EVER HAVE ARISEN. * * *.

IN THE SECOND PARAGRAPH FOLLOWING THE STATEMENTS ABOVE QUOTED THE COURT ADDED:

IN THE INSTANT CASE PLAINTIFF WAS RELEASED FROM SERVICE AS A MATTER OF LAW, AND WAS ENTITLED TO DISABILITY RETIREMENT PAY IN OR AROUND APRIL, 1944. CONTRARY TO HIS LAWFUL RIGHT HE WAS RETAINED ON A LIMITED SERVICE STATUS FOR ANOTHER TWO YEARS. BUT HIS RIGHT TO THE DISABILITY RETIREMENT PAY HAD NOW PASSED BEYOND "THOSE OTHER CLAIMS DEPENDENT ON PRIOR ADMINISTRATIVE EVALUATION" AND HAD BECOME A CLAIM "INDEPENDENT OF ADMINISTRATIVE DETERMINATION.'

IN CONCLUSION THE COURT FURTHER STATED:

CONSEQUENTLY, PLAINTIFF IS ENTITLED TO RECOVER DISABILITY RETIREMENT PAY COMMENSURATE WITH THE RANK HE HELD IN 1944 WHEN HE WAS RELEASED FROM THE SERVICE AS A MATTER OF LAW PURSUANT TO WAR DEPARTMENT MEMORANDUM 2-605- 44. HE IS DUE SUCH PAY FROM AUGUST 18 (1), 1955, TO DATE, THIS PERIOD BEING STILL OPEN UNDER THE STATUE OF LIMITATIONS (28 U.S.C. 2501).

IT IS AMPLY CLEAR, THEREFORE, THAT IN THE DECISION RENDERED DECEMBER 13, 1963, IN FAVOR OF BARNES, THE COURT FOUND TO BE PRESENT EVERY ELEMENT OF FACT AND LAW REQUIRED TO ESTABLISH THAT HE SHOULD HAVE RECEIVED DISABILITY RETIREMENT PAY EFFECTIVE FROM AUGUST 21, 1946, DATE OF HIS RELEASE TO INACTIVE DUTY. THUS, THE CORRECTION OF BARNES' MILITARY RECORDS ON MAY 21, 1964, UNDER AUTHORITY OF 10 U.S.C. 1552 TO PROVIDE THAT

1. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO JOHN M. BARNES, AO 311 077 BE CORRECTED TO SHOW THAT ON 20 AUGUST 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY SERVICE BY REASON OF HEPATITIS, CHRONIC, MODERATELY SEVERE; THAT THE DISABILITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF SERVICE, HAVING BEEN SUFFERED IN THE LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY SUBSEQUENT TO 19 DECEMBER 1940.

2. ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN CONSONANCE WITH THIS DIRECTIVE.

DID NOT CHANGE ANY BASIC FACT CONCERNING HIS MILITARY DISABILITY RETIRED STATUS AND THE PLACEMENT OF HIS NAME ON THE DISABILITY RETIRED LIST OF THE ARMY RETROACTIVELY EFFECTIVE AS OF AUGUST 20, 1946, DID NOT HAVE ANY LEGAL EFFECT ON HIS RIGHT, ALREADY JUDICIALLY ESTABLISHED BY THE DECISION OF DECEMBER 13, 1963, TO DISABILITY RETIREMENT PAY EFFECTIVE FROM AUGUST 21, 1946.

IN THE CASE OF HAISLIP V. UNITED STATES, 152 CT. CL. 339, DECIDED JANUARY 18, 1961, IT WAS STATED "* * * DEFENDANT (GOVERNMENT) FILED A CROSS-MOTION ON THE GROUND THAT THE CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS (28 U.S.C. 2501).' THE MAJORITY OF THE COURT HELD:

WE ARE UNABLE TO SEE HOW THE "DECISION" OF THE CORRECTION BOARD GAVE PLAINTIFF ANY RIGHT HE HAD NOT HAD ALL ALONG. NO FACT APPEARING IN PLAINTIFF'S RECORD WAS CHANGED. THE FACTS REMAINED AS THEY HAD BEEN. THE BASIS OF THOSE FACTS, PLAINTIFF WAS ENTITLED TO BRING SUIT IMMEDIATELY AFTER HE WAS RETURNED TO THE RETIRED LIST AND THE DENIAL BY THE NAVY OF THE CLAIM HE NOW MAKES. THAT WAS IN 1946, WHICH WAS 13 YEARS BEFORE HIS PETITION WAS FILED IN THIS CASE. IN THAT 13 YEARS THE FACTS AND THE LAW GOVERNING HIS RIGHTS HAVE NOT CHANGED. ALL THAT THE "DECISION" OF THE (CORRECTION) BOARD AMOUNTED TO WAS A DECISION THAT ON THE BASIS OF THOSE FACTS PLAINTIFF WAS ENTITLED TO THE RIGHTS HE NOW CLAIMS. THE BOARD'S DECISION WAS MERELY A LEGAL CONCLUSION BASED ON THE LAW AND THE FACTS OF RECORD, NO ONE OF WHICH WAS CHANGED BY THE BOARD.

THE RULE IN THE HAISLIP CASE IS APPLICABLE HERE. UNDER THAT RULE BARNES ACQUIRED NO RIGHT TO DISABILITY RETIREMENT PAY AS A RESULT OF THE APPROVED CORRECTION BOARD ACTION OF MAY 21, 1964, WHICH HE HAD NOT HAD ALL ALONG "SINCE IN OR AROUND APRIL 1944.' UNDER THE HOLDING IN THE BARNES CASE HE HAD BEEN ENTITLED UNDER APPLICABLE PROVISIONS OF LAW (AND QUITE CLEARLY WITHOUT ANY CHANGE NEEDED IN HIS MILITARY RECORDS) TO THE DISABILITY RETIREMENT PAY CLAIMED BY HIM, SINCE THE TIME THE ARMY WRONGFULLY WITHHELD SUCH PAY. THE FACTS CONCERNING HIS DISABILITY RETIRED STATUS REMAINED AS THEY HAD BEEN, THAT IS, HIS DISABILITY RETIRED STATUS AND THE LAW GOVERNING HIS ENTITLEMENT TO DISABILITY RETIREMENT PAY WERE THE SAME AFTER THE CORRECTION BOARD ACTED ON MAY 21, 1964, AS THEY HAD BEEN EVER SINCE APRIL 1944. ON THE BASIS OF THE FACTS FOUND BY THE COURT IN THE DECISION OF DECEMBER 13, 1963, HE COULD HAVE BROUGHT SUIT AT ANY TIME ON OR AFTER AUGUST 21, 1946 (EFFECTIVE DATE OF HIS RELEASE TO INACTIVE DUTY) AND HAVING FAILED TO DO SO UNTIL THE FILING OF HIS PETITION (NO. 330-61) IN THE COURT OF CLAIMS ON AUGUST 18, 1961, HE WAS SUBJECT TO THE PERIOD OF LIMITATION PRESCRIBED IN 28 U.S.C. 2501 ON HIS COURT OF CLAIMS ACTION AND TO THE 10-YEAR PERIOD STATED IN 31 U.S.C. 71A ON THE CLAIM RECEIVED IN THIS OFFICE NOVEMBER 8, 1963. CONSEQUENTLY, THE APPROVED CORRECTION BOARD ACTION OF MAY 21, 1964, FURNISHES NO LEGAL BASIS FOR THE PAYMENT TO HIM OF DISABILITY RETIREMENT PAY FOR ANY PART OF THE PERIOD BARRED BY THE PROVISIONS OF 31 U.S.C. 71A.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED THIS DATE TO OUR DEFENSE ACCOUNTING AND AUDITING DIVISION TO TAKE APPROPRIATE ACTION IN YOUR DISBURSING ACCOUNT, SYMBOL NO. 5947, VOUCHER NO. P-4600, AS TO THAT PART OF THE PAYMENT STATED IN FAVOR OF CAPTAIN BARNES WHICH COVERS THE PERIOD PRECEDING NOVEMBER 8, 1953. IN THE CONSIDERATION OF THIS CASE, WE HAVE NOT OVERLOOKED THE OPINION OF THE COURT OF CLAIMS IN THE CASE OF OLESON V. UNITED STATES, CT. CL. NO. 376-64, DECIDED JULY 16, 1965. THAT DECISION IS NOT FINAL (A MOTION FOR REHEARING WAS FILED AUGUST 16, 1965) AND HENCE A CONCLUSION AS TO ITS EFFECT, IF ANY, ON THE PRESENT CASE HAS NOT BEEN MADE.