B-103666, JUN. 12, 1956

B-103666: Jun 12, 1956

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RETIRED: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 10 AND FEBRUARY 29. IT APPEARS THAT YOU WERE DETACHED FROM DUTY AT THE DISTRICT LEGAL OFFICE. WERE GRANTED ONE MONTH. THAT YOU WERE PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD OF LEAVE. THAT YOU WERE PAID $300 AS MUSTERING-OUT PAY INCIDENT TO THE TERMINATION OF YOUR ACTIVE-DUTY PAY STATUS ON FEBRUARY 8. THAT YOUR RECORDS NOW HAVE BEEN CORRECTED TO SHOW A BASIS FOR YOUR ENTITLEMENT TO DISABILITY RETIREMENT PAY BEGINNING FEBRUARY 9. THE PURPOSE OF THE CORRECTION OF YOUR RECORDS WAS TO PLACE YOU IN THE SAME FINANCIAL POSITION AS THAT WHICH YOU WOULD HAVE OCCUPIED IF YOU ACTUALLY HAD BEEN RETIRED ON FEBRUARY 9. THE OFFICIAL PAY RECORDS PLAINLY SHOW THAT YOU ALREADY HAVE BEEN PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR A PORTION OF THAT PERIOD.

B-103666, JUN. 12, 1956

TO LIEUTENANT ALOYSIUS B. CAWLEY, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 10 AND FEBRUARY 29, 1956, WITH ENCLOSURES, IN WHICH YOU CLAIM PAYMENT FOR: (1) ACTIVE DUTY PAY AND ALLOWANCES FROM DECEMBER 29, 1944, TO FEBRUARY 8, 1945, (2) ACTIVE-DUTY PAY AND ALLOWANCES FROM FEBRUARY 9 TO MARCH 8, 1945, (3) PAYMENT FOR 76 DAYS' ACCRUED LEAVE, AND (4) MUSTERING-OUT PAY.

IT APPEARS THAT YOU WERE DETACHED FROM DUTY AT THE DISTRICT LEGAL OFFICE, 9TH NAVAL DISTRICT, ON DECEMBER 28, 1944, AND WERE GRANTED ONE MONTH, 12 DAYS' LEAVE COMMENCING DECEMBER 29, 1944, AND ENDING FEBRUARY 8, 1945; THAT YOU WERE PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD OF LEAVE; AND THAT YOU WERE PAID $300 AS MUSTERING-OUT PAY INCIDENT TO THE TERMINATION OF YOUR ACTIVE-DUTY PAY STATUS ON FEBRUARY 8, 1945. FURTHER APPEARS THAT YOU HAD BEEN PLACED ON THE RETIRED LIST WITH DISABILITY RETIREMENT PAY, EFFECTIVE OCTOBER 1, 1948; THAT YOUR RECORDS NOW HAVE BEEN CORRECTED TO SHOW A BASIS FOR YOUR ENTITLEMENT TO DISABILITY RETIREMENT PAY BEGINNING FEBRUARY 9, 1945, AS THOUGH YOU ACTUALLY HAD BEEN RETIRED ON THAT DATE; AND THAT THE DEPARTMENT OF THE NAVY HAS TENDERED YOU A CHECK REPRESENTING DISABILITY RETIREMENT PAY FOR THE PERIOD FEBRUARY 9, 1945, TO SEPTEMBER 30, 1948, MINUS $300 PAID YOU AS MUSTERING-OUT PAY AND AMOUNTS YOU RECEIVED FROM THE VETERANS ADMINISTRATION AS PENSION OR DISABILITY COMPENSATION.

THE PURPOSE OF THE CORRECTION OF YOUR RECORDS WAS TO PLACE YOU IN THE SAME FINANCIAL POSITION AS THAT WHICH YOU WOULD HAVE OCCUPIED IF YOU ACTUALLY HAD BEEN RETIRED ON FEBRUARY 9, 1945. THAT PURPOSE HAS BEEN KEPT IN MIND IN THE DETERMINATION OF RIGHTS ACCRUING TO YOU BY VIRTUE OF SUCH CORRECTION.

YOU CLAIM ACTIVE-DUTY PAY AND ALLOWANCES FROM DECEMBER 29, 1944, TO MARCH 8, 1945. THE OFFICIAL PAY RECORDS PLAINLY SHOW THAT YOU ALREADY HAVE BEEN PAID ACTIVE-DUTY PAY AND ALLOWANCES FOR A PORTION OF THAT PERIOD, THAT IS, FROM DECEMBER 29, 1944, TO FEBRUARY 8, 1945. PRESUMABLY, IT IS YOUR CONTENTION THAT YOU ALSO SHOULD BE PAID ACTIVE DUTY PAY FROM FEBRUARY 9 TO MARCH 8, 1945, BECAUSE YOU WERE DENIED "CONVALESCENT" LEAVE (AND HENCE CHARGED SOME OTHER TYPE OF LEAVE) FOR A LIKE PERIOD FROM AUGUST 15, 1943, TO SEPTEMBER 14, 1943. EVEN IF WE SHOULD CONCEDE THAT YOU SHOULD HAVE BEEN GRANTED "CONVALESCENT" LEAVE FOR THE STATED PERIOD IN 1943 INSTEAD OF SOME OTHER TYPE OF LEAVE, AND THAT YOU HAD A CORRESPONDINGLY LARGER ACCRUED LEAVE BALANCE ON FEBRUARY 8, 1945, THERE WOULD BE NO AUTHORITY FOR THE PAYMENT TO YOU FOR ANY ACCRUED LEAVE NOT GRANTED AND TAKEN PRIOR TO YOUR RELEASE FROM ACTIVE DUTY ON FEBRUARY 8, 1945. IN THAT CONNECTION, HOWEVER, THE BUREAU OF NAVAL PERSONNEL ADVISED US IN LETTER OF AUGUST 8, 1947, THAT THE PERIOD FOR WHICH YOU CLAIM "CONVALESCENT" LEAVE WAS PRIOR TO THE "PROMULGATION OF BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER 196-43 OF 23 SEPTEMBER 1943 WHICH ESTABLISHES THE CONVALESCENT LEAVE STATUS.'

AS STATED ABOVE, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU FOR ANY UNUSED LEAVE WHICH MIGHT HAVE BEEN STANDING TO YOUR CREDIT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY ON FEBRUARY 8, 1945, AND, HENCE, YOUR CLAIM FOR PAYMENT FOR 76 DAYS' LEAVE MAY NOT BE ALLOWED. AS YOU HAVE STATED IN YOUR LETTER OF FEBRUARY 10, 1956, THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A TO 38, DOES NOT HAVE ANY BEARING ON YOUR CASE SINCE IT DOES NOT PROVIDE FOR PAYMENT FOR LEAVE IN THE CASES OF OFFICERS RETURNED TO AN INACTIVE STATUS WITH RETIRED PAY PRIOR TO SEPTEMBER 30, 1947. YOUR RIGHTS ARE FOR DETERMINATION ON THE BASIS OF A RETURN TO AN INACTIVE STATUS WITH RETIRED PAY ON FEBRUARY 9, 1945, AND IN A NUMBER OF CASES SIMILAR TO YOURS, INVOLVING RELEASES FROM ACTIVE DUTY PRIOR TO 1947, WE HELD THAT THERE WAS NO AUTHORITY FOR PAYMENT FOR LEAVE NOT ACTUALLY TAKEN PRIOR TO RELEASE FROM ACTIVE DUTY OR SEPARATION FROM THE SERVICE. SEE 24 COMP. GEN. 291; 26 COMP. GEN. 94.

YOU SEEM TO MAINTAIN THAT THE STATUTE AUTHORIZING THE CORRECTION OF YOUR RECORDS GIVES YOU A RIGHT TO THE PAYMENT CLAIMED FOR UNUSED LEAVE. THAT STATUTE MERELY AUTHORIZES THE CORRECTION OF RECORDS AND MONETARY PAYMENTS ON THE BASIS OF SUCH CORRECTIONS. IF A RECORD AS CORRECTED DOES NOT DISCLOSE A FACTUAL BASIS FOR A RIGHT TO A PARTICULAR BENEFIT, UNDER THE LAWS APPLICABLE DURING THE PERIOD INVOLVED IN THE CORRECTED RECORD, THAT BENEFIT MAY NOT BE GRANTED OR PAID.

SECTION 1 (B) (2) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, PROVIDES THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO "ANY MEMBER OF THE ARMED FORCES WHO, AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE SERVICE, IS TRANSFERRED OR RETURNED TO THE RETIRED LIST WITH RETIREMENT PAY OR TO A STATUS IN WHICH HE RECEIVES RETIREMENT PAY.' WHEN YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 8, 1945, IT HAD NOT BEEN DETERMINED THAT YOU WERE ENTITLED TO RETIREMENT PAY. CONSEQUENTLY, YOU WERE PAID $300 AS MUSTERING -OUT PAY. THE SUBSEQUENT CORRECTION OF YOUR RECORDS ESTABLISHED THAT YOU WERE ENTITLED TO RETIREMENT PAY BEGINNING FEBRUARY 9, 1945. ON THAT BASIS, NO MUSTERING OUT PAY ACCRUED TO YOU AND THE AMOUNT OF $300, PAID TO YOU AS MUSTERING-OUT PAY, PROPERLY WAS DEDUCTED FROM THE AMOUNT OTHERWISE DUE YOU AS A PAYMENT OF RETROACTIVE RETIREMENT PAY. YOU ARE ASSERTING, IN EFFECT, THAT YOU ARE ENTITLED TO ALL THE RETIREMENT BENEFITS WHICH YOU WOULD HAVE RECEIVED IF YOU ACTUALLY HAD BEEN RETIRED WITH PAY ON FEBRUARY 9, 1945 (BY OFFICIAL ACTION TAKEN AT OR ABOUT THAT TIME), PLUS $300 TO WHICH YOU WOULD NOT HAVE BEEN ENTITLED HAD YOU BEEN SO RETIRED. IT SEEMS EVIDENT, IN VIEW OF THE FACTS IN YOUR CASE AND THE EXPRESS PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, THAT YOUR CLAIM FOR MUSTERING-OUT PAY MAY NOT BE ALLOWED.

ACCORDINGLY, IT IS OUR CONCLUSION THAT YOU ARE NOT ENTITLED TO ANY PAYMENT, IN ADDITION TO THAT ALREADY TENDERED YOU, INCIDENT TO THE CORRECTION OF YOUR RECORDS.