B-110377, JULY 30, 1952, 32 COMP. GEN. 61

B-110377: Jul 30, 1952

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LEAVE PAYMENTS BASED ON CORRECTED MILITARY AND NAVAL RECORDS - STATUTE OF LIMITATIONS A MEMBER OF THE UNIFORMED SERVICES WHOSE BAD CONDUCT DISCHARGE WAS CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS PRIOR TO THE AMENDMENT OF OCTOBER 25. THERE WAS FORWARDED TO THE CLAIMS DIVISION OF THIS OFFICE FOR SETTLEMENT AS A CLAIM A VOUCHER STATED IN FAVOR OF GEORGE LARSON. IT IS STATED THAT THE CLAIM WAS FORWARDED HERE FOR SETTLEMENT IN VIEW OF DOUBT AS TO THE LEGALITY OF PAYMENT SINCE IT INVOLVES TERMINAL LEAVE PAY FOR WHICH APPLICATION WAS NOT FILED UNTIL AFTER JUNE 30. THE CLAIMANT WAS DISCHARGED AS A PRIVATE FROM THE UNITED STATES MARINE CORPS. THAT SUCH DECISION WAS SUBSEQUENTLY APPROVED BY THE SECRETARY OF THE NAVY.

B-110377, JULY 30, 1952, 32 COMP. GEN. 61

LEAVE PAYMENTS BASED ON CORRECTED MILITARY AND NAVAL RECORDS - STATUTE OF LIMITATIONS A MEMBER OF THE UNIFORMED SERVICES WHOSE BAD CONDUCT DISCHARGE WAS CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS PRIOR TO THE AMENDMENT OF OCTOBER 25, 1951, TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 WHICH AUTHORIZED PAYMENT OF CLAIMS ARISING BY REASON OF CORRECTION OF MILITARY OR NAVAL RECORDS, MAY FILE HIS CLAIM FOR UNUSED ANNUAL LEAVE UNDER SECTION 5 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, AT ANY TIME WITHIN ONE YEAR FROM OCTOBER 25, 1951, THE EFFECTIVE DATE OF SAID AMENDMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JULY 30, 1952:

BY LETTER DATED MAY 21, 1952 (REFERENCE CDD-284-DH), FROM HEADQUARTERS, UNITED STATES MARINE CORPS, THERE WAS FORWARDED TO THE CLAIMS DIVISION OF THIS OFFICE FOR SETTLEMENT AS A CLAIM A VOUCHER STATED IN FAVOR OF GEORGE LARSON, 336057, USMCR, RURAL ROUTE NO. 1, MILFORD CENTER, OHIO, FOR TERMINAL LEAVE PAY AND OTHER MONETARY BENEFITS BELIEVED TO BE DUE UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY PUBLIC LAW 220, APPROVED OCTOBER 25, 1951, 65 STAT. 655. IT IS STATED THAT THE CLAIM WAS FORWARDED HERE FOR SETTLEMENT IN VIEW OF DOUBT AS TO THE LEGALITY OF PAYMENT SINCE IT INVOLVES TERMINAL LEAVE PAY FOR WHICH APPLICATION WAS NOT FILED UNTIL AFTER JUNE 30, 1951.

IT APPEARS FROM THE PAPERS FURNISHED IN SUPPORT OF THE VOUCHER THAT ON MARCH 14, 1946, THE CLAIMANT WAS DISCHARGED AS A PRIVATE FROM THE UNITED STATES MARINE CORPS, WITH A BAD CONDUCT DISCHARGE; THAT ON NOVEMBER 1, 1949, UNDER AUTHORITY OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, 837, THE BOARD FOR CORRECTION OF NAVAL RECORDS REVIEWED HIS RECORD AND DECIDED THAT THE CHARACTER OF HIS DISCHARGE SHOULD BE CHANGED TO ONE UNDER HONORABLE CONDITIONS BY REASON OF UNSUITABILITY, AND THAT SUCH DECISION WAS SUBSEQUENTLY APPROVED BY THE SECRETARY OF THE NAVY.

SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, SUPRA, AUTHORIZES THE SECRETARY OF WAR (NOW SECRETARY OF THE ARMY), THE SECRETARY OF THE NAVY, AND SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD, RESPECTIVELY, ACTING THROUGH CORRECTION BOARDS IN THEIR RESPECTIVE DEPARTMENTS, TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION WAS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. THE SAID ACT OF OCTOBER 25, 1951, AMENDED THE SAID SECTION 207 SO AS TO PROVIDE, INTER ALIA, FOR THE PAYMENT OF CLAIMS ARISING BY REASON OF THE CORRECTION OF MILITARY OR NAVAL RECORDS, IT PREVIOUSLY HAVING BEEN CONSIDERED THAT THE SAID SECTION OF THE 1946 ACT DID NOT VEST IN THE DEPARTMENTS CONCERNED, OR IN THE GENERAL ACCOUNTING OFFICE, ANY AUTHORITY TO ORDER OR DIRECT THE ALLOWANCE OR PAYMENT OF ANY CLAIM BASED ON THE CORRECTION OF THE RECORDS OF AN INDIVIDUAL. 27 COMP. GEN. 665. SUBSECTIONS (B) AND (E) OF THE SAID SECTION 207, AS AMENDED, 65 STAT. 656, PROVIDES AS FOLLOWS:

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION * * * * * * * * * * *

(E) THE SECRETARY OF DEFENSE AND THE SECRETARY OF THE TREASURY, FOR THEIR RESPECTIVE DEPARTMENTS, SHALL MAKE SEMI-ANNUAL REPORTS TO THE CONGRESS OF ALL CLAIMS PAID UNDER THIS SUBSECTION DURING THE PERIOD COVERED BY EACH SUCH REPORT. EACH SUCH REPORT SHALL INCLUDE, WITH RESPECT TO EACH SUCH CLAIM, A STATEMENT OF THE AMOUNT PAID, TO WHOM, AND A BRIEF DESCRIPTION OF THE CLAIM.

UNDER THE SAID SECTION 207, AS AMENDED, THE " DEPARTMENT CONCERNED IS AUTHORIZED TO PAY" AND, PRESUMABLY IT WAS CONTEMPLATED THAT GENERALLY PAYMENTS MADE PURSUANT THERETO, BASED ON THE CORRECTION OF AN INDIVIDUAL'S RECORD, WOULD BE MADE BY THE DEPARTMENT CONCERNED RATHER THAN ON THE BASIS OF SETTLEMENTS ISSUED BY THIS OFFICE. HENCE, IN ANY CASE IN WHICH DOUBT EXISTS AS TO THE LEGALITY OF A PROPOSED PAYMENT, IT WOULD APPEAR THAT SUCH CASE SHOULD BE SUBMITTED HERE FOR ADVANCE DECISION RATHER THAN TRANSMITTED FOR SETTLEMENT AS A CLAIM.

IN THE PRESENT CASE, INSOFAR AS CONCERNS COMPENSATING MR. LARSON FOR LEAVE EARNED INCIDENT TO HIS SERVICE IN THE MARINE CORPS, SECTION 4 (D) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED 61 STAT. 749, PROVIDES THAT ANY MEMBER OF THE ARMED FORCES DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS SHALL FORFEIT ALL UNUSED LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE. HOWEVER, SECTION 5 (A) OF THE SAID ACT AS AMENDED, 60 STAT. 965, PROVIDES, INTER ALIA, THAT ENLISTED MEMBERS DISCHARGED PRIOR TO SEPTEMBER 1, 1946, SHALL BE COMPENSATED FOR UNUSED LEAVE AS THEREIN PROVIDED IF APPLICATION IS MADE TO THE SECRETARY CONCERNED NOT LATER THAN JUNE 30, 1951, "IN THE CASE OF ANY SUCH MEMBER OR FORMER MEMBER WHOSE RECORD IS CORRECTED AFTER THE DATE OF ENACTMENT OF THIS ACT ( AUGUST 9, 1946), TO SHOW DISCHARGE UNDER HONORABLE CONDITIONS," NOT LATER THAN JUNE 30, 1951,"OR WITHIN ONE YEAR AFTER THE DATE ON WHICH SUCH RECORD IS CORRECTED, WHICHEVER IS LATER.' PRESUMABLY MR. LARSON DID NOT FILE AN APPLICATION OR CLAIM FOR SETTLEMENT FOR UNUSED LEAVE WITHIN ONE YEAR AFTER THE DATE OF THE CORRECTION OF HIS NAVAL RECORD.

THE OBVIOUS PURPOSE OF THE AMENDMENT OF OCTOBER 25, 1951, INSOFAR AS HERE CONCERNED, WAS TO AUTHORIZE THE PAYMENT OF AMOUNTS WHICH A MEMBER OR FORMER MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE HAD HE ORIGINALLY RECEIVED A DISCHARGE UNDER HONORABLE CONDITIONS. WHILE MR. LARSON'S RECORD WAS CORRECTED IN NOVEMBER 1949 TO SHOW THAT HE WAS DISCHARGED UNDER HONORABLE CONDITIONS, HE WAS NOT ENTITLED TO PAYMENT OF ANY AMOUNT ON THE BASIS OF SUCH CORRECTED RECORD UNTIL AFTER ENACTMENT OF THE SAID ACT OF OCTOBER 25, 1951. IT DOES NOT SEEM REASONABLE TO ASSUME THAT THE CONGRESS INTENDED SUCH ONE YEAR LIMITATION TO RUN AGAINST A MEMBER OF THE UNIFORMED SERVICE DURING A PERIOD WHEN HE WAS NOT ENTITLED TO SUCH PAYMENT AND WHEN THE FILING OF AN APPLICATION THEREFOR WOULD HAVE BEEN FUTILE ON HIS PART. ON SUCH BASIS AND SINCE SECTION 5 (A) OF THE 1946 LEAVE ACT, AS AMENDED, APPARENTLY CONTEMPLATED THAT A MEMBER WHOSE RECORD WAS CORRECTED WOULD BE GIVEN ONE YEAR AFTER HIS RIGHT TO THE LEAVE PAYMENT ACCRUED WITHIN WHICH TO FILE APPLICATION FOR SUCH PAYMENT, IT WOULD APPEAR NOT UNREASONABLE UNDER THE CIRCUMSTANCES TO CONSIDER THE DATE OF ENACTMENT OF THE ACT OF OCTOBER 25, 1951, AS THE DATE THAT MR. LARSON'S RIGHT TO PAYMENT ACCRUED AND SINCE HE FILED APPLICATION WITHIN ONE YEAR THEREAFTER, PAYMENT FOR HIS UNUSED LEAVE IS AUTHORIZED, IF OTHERWISE CORRECT. CF. MACINNIS V. UNITED STATES, 75 C.1CLS. 538. THE VOUCHER AND SUPPORTING PAPERS ARE TRANSMITTED HEREWITH FOR APPROPRIATE ACTION.