B-113717, JUNE 26, 1958, 37 COMP. GEN. 852

B-113717: Jun 26, 1958

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SUBSEQUENT DATE AN OFFICER IN THE ARMY OF THE UNITED STATES WHOSE MILITARY RECORD WAS CORRECTED TO SHOW THAT HIS RELEASE FROM ACTIVE DUTY WAS DUE TO PHYSICAL DISABILITY AND THAT HE WAS ENTITLED TO DISABILITY RETIRED PAY FROM A DATE FIXED SUBSEQUENT TO THE DATE OF RELEASE FROM ACTIVE DUTY SHOULD NOT BE BARRED BY THE RELEASE PROVISIONS OF 5 U.S.C. 191A (C) FROM RECEIVING DISABILITY RETIRED PAY FROM THE DATE OF RELEASE FROM ACTIVE DUTY TO THE EARLIEST DATE FOR WHICH HE RECEIVED RETIRED PAY UPON A SUBSEQUENT INTERPRETATION THAT THE DATE FOR COMMENCEMENT OF RETIRED PAY COULD NOT BE FIXED AT A DATE OTHER THAN THE DATE OF RELEASE FROM ACTIVE DUTY. YOU ARE AUTHORIZED TO MAKE PAYMENT ON AN ENCLOSED VOUCHER IN FAVOR OF LIEUTENANT COLONEL FRANK O.

B-113717, JUNE 26, 1958, 37 COMP. GEN. 852

MILITARY PERSONNEL - RECORD CORRECTION - RELEASE OF GOVERNMENT FROM ADDITIONAL CLAIMS - DATE OF RELEASE FROM ACTIVE DUTY V. SUBSEQUENT DATE AN OFFICER IN THE ARMY OF THE UNITED STATES WHOSE MILITARY RECORD WAS CORRECTED TO SHOW THAT HIS RELEASE FROM ACTIVE DUTY WAS DUE TO PHYSICAL DISABILITY AND THAT HE WAS ENTITLED TO DISABILITY RETIRED PAY FROM A DATE FIXED SUBSEQUENT TO THE DATE OF RELEASE FROM ACTIVE DUTY SHOULD NOT BE BARRED BY THE RELEASE PROVISIONS OF 5 U.S.C. 191A (C) FROM RECEIVING DISABILITY RETIRED PAY FROM THE DATE OF RELEASE FROM ACTIVE DUTY TO THE EARLIEST DATE FOR WHICH HE RECEIVED RETIRED PAY UPON A SUBSEQUENT INTERPRETATION THAT THE DATE FOR COMMENCEMENT OF RETIRED PAY COULD NOT BE FIXED AT A DATE OTHER THAN THE DATE OF RELEASE FROM ACTIVE DUTY.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, JUNE 26, 1958:

YOUR LETTER OF APRIL 10, 1958 (FORWARDED UNDER D.O. NO. 339, ALLOCATED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE), REQUESTS A DECISION WHETHER, IN THE CIRCUMSTANCES PRESENTED, YOU ARE AUTHORIZED TO MAKE PAYMENT ON AN ENCLOSED VOUCHER IN FAVOR OF LIEUTENANT COLONEL FRANK O. ALLEY, JR., AUS, RETIRED, FOR $7,872.14 COVERING ADDITIONAL RETIRED PAY FOR THE PERIOD JANUARY 1, 1950, TO MARCH 31, 1958.

IT APPEARS THAT COLONEL ALLEY WAS RELEASED FROM ACTIVE DUTY ON JULY 16, 1944, NOT BY REASON OF PHYSICAL DISABILITY. YOU SAY THAT ON MARCH 31, 1950, HE WAS CERTIFIED TO THE ADMINISTRATOR OF VETERANS AFFAIRS AS ELIGIBLE FOR RETIREMENT PAY EFFECTIVE JANUARY 1, 1950, PURSUANT TO SECTION 415 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, 37 U.S.C. 285, AND SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456. PRESUMABLY THIS CERTIFICATION WAS BASED UPON A DETERMINATION MADE BY A PHYSICAL EVALUATION BOARD ON OR ABOUT JANUARY 1, 1950, THAT COLONEL ALLEY WAS PHYSICALLY DISABLED AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY. SINCE HE WAS EMPLOYED BY THE VETERANS ADMINISTRATION IN A CIVILIAN CAPACITY FOR THE PERIOD JANUARY 1, 1950, TO JUNE 23, 1950, PAYMENT OF HIS RETIRED PAY AT FIRST WAS WITHHELD FOR THAT PERIOD IN ACCORDANCE WITH THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. HOWEVER, IT APPEARS THAT AFTER THE DATE OF OUR DECISION OF JUNE 11, 1957, B-123382, 36 COMP. GEN. 808, EXTENDING THE RULE EXEMPTING CERTAIN RESERVISTS FROM THE DOUBLE COMPENSATION PROVISIONS OF SECTION 212, A SUPPLEMENTAL PAYMENT OF RETIRED PAY WAS SENT TO HIM FOR THAT PERIOD.

IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10122, THE VETERANS ADMINISTRATION FORWARDED COLONEL ALLEY'S ACCOUNT TO THE ARMY FOR PAYMENT OF RETIREMENT PAY EFFECTIVE JULY 1, 1950; AND SINCE HIS CIVILIAN EMPLOYMENT WAS TERMINATED JUNE 23, 1950, HE APPARENTLY WAS PAID RETIREMENT PAY BY THE ARMY BEGINNING JUNE 24, 1950. THE PAYMENTS OF RETIREMENT PAY WERE STOPPED EFFECTIVE JULY 31, 1951, ON THE BASIS OF OUR DECISION OF APRIL 25, 1951, 30 COMP. GEN. 409, HOLDING THAT MEMBERS OF THE ARMY OF THE UNITED STATES WHO WERE RELEASED FROM ACTIVE DUTY, WITHOUT PAY AND NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949 AND WHO, SUBSEQUENT TO THAT DATE UPON APPEARING BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS WERE FOUND TO BE PHYSICALLY DISABLED FROM TIME OF RELEASE FROM ACTIVE DUTY, WERE NOT ENTITLED TO RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949 NOR UNDER LAWS WHICH WERE IN EFFECT PRIOR TO THE APPROVAL OF THAT ACT. THE ORIGINAL RETIRED PAY PAYMENTS WHICH WERE MADE TO COLONEL ALLEY FOR THE PERIOD JUNE 24, 1950, TO JULY 31, 1951, WERE COMPUTED ON THE RATE OF BASIC PAY AUTHORIZED FOR AN OFFICER OF HIS GRADE WITH OVER 30 YEARS OF SERVICE. THIS SERVICE APPEARS TO HAVE INCLUDED CREDIT FOR INACTIVE DUTY SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY ON JULY 16, 1944, IN ACCORDANCE WITH 31 COMP. GEN. 78. WHILE THE RECORD DOES NOT SO SHOW, WE ASSUME THESE RETIRED PAY PAYMENTS HAVE BEEN REFUNDED BY COLONEL ALLEY.

AS A RESULT OF A REVIEW BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, COLONEL ALLEY'S RECORDS WERE CORRECTED ON MARCH 11, 1953, TO SHOW THAT HE BECAME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE ON JULY 16, 1944, BECAUSE OF A DISABILITY WHICH WAS AN INCIDENT OF THE SERVICE INCURRED IN LINE OF DUTY, THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON JULY 16, 1944, AND THAT HE WAS CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS FROM JANUARY 1, 1950, UNDER THE ACT OF APRIL 3, 1939. YOU INDICATE THAT HE ACCEPTED PAYMENT OF RETIRED PAY UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 5 U.S.C. 191A, FOR THE PERIOD JANUARY 1, 1950, TO AUGUST 31, 1953, BASED ON A LONGEVITY CREDIT OF OVER 24 YEARS FOR BASIC PAY PURPOSES AND THAT HE HAS SINCE THE LATTER DATE, LESS COMPENSATION PAYMENTS MADE BY THE VETERANS ADMINISTRATION. THIS LONGEVITY CREDIT OF OVER 24 YEARS APPARENTLY DOES NOT INCLUDE ANY INACTIVE SERVICE CREDIT AFTER JULY 16, 1944.

COLONEL ALLEY CONTENDS THAT IF HE IS ENTITLED TO RETIRED PAY ONLY FROM JANUARY 1, 1950, HE IS ENTITLED TO CREDIT OF INACTIVE SERVICE AFTER JULY 16, 1944, FOR LONGEVITY PURPOSES, AND THAT IF HE IS NOT ENTITLED TO ANY SERVICE CREDIT FOR LONGEVITY PURPOSES AFTER JULY 16, 1944, HE SHOULD BE PAID RETIRED PAY RETROACTIVE TO THAT DATE.

THE SUBMITTED VOUCHER PROPOSES PAYMENT ON THE BASIS THAT COLONEL ALLEY IS ENTITLED TO CREDIT OF INACTIVE SERVICE AFTER JULY 16, 1944, FOR LONGEVITY PURPOSES. YOU SAY NO DECISION IS DESIRED ON COLONEL ALLEY'S ALTERNATE CLAIM THAT HE IS ENTITLED TO RETIRED PAY RETROACTIVELY TO JULY 16, 1944, CITING IN THAT CONNECTION 34 COMP. GEN. 188, HOLDING THAT THE ACCEPTANCE OF A SETTLEMENT UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT, AS AMENDED, BY A FORMER ARMY OFFICER WHOSE MILITARY RECORD HAD BEEN CORRECTED TO SHOW ENTITLEMENT TO DISABILITY RETIREMENT PAY CONSTITUTED A COMPLETE RELEASE OF ANY CLAIM ON ACCOUNT OF SUCH CORRECTION AND THAT THE OFFICER THEREAFTER WAS PRECLUDED FROM RECOVERING FURTHER RETROACTIVE PAYMENT FOR ANY PRIOR PERIOD. THE CASE CONSIDERED IN 34 COMP. GEN. 188 ALSO WAS CONSIDERED BY THE COURT OF CLAIMS AND THE COURT HELD THAT THE SECTION 207 RELEASE IN THAT CASE WAS NOT A BAR TO THE RECOVERY OF FURTHER RETROACTIVE RETIRED PAY PAYMENTS. HIETT V. UNITED STATES, 131 C.1CLS. 585. THE COURT'S DECISION APPEARS TO HAVE BEEN PREDICATED UPON THE VIEW THAT THE CLAIMANT WAS ACTIVELY PROSECUTING TWO SEPARATE CLAIMS AND THAT IT WAS NOT CONTEMPLATED BY SECTION 207 THAT A RELEASE OF FURTHER DEMANDS UNDER ONE OF THE CLAIMS WOULD OPERATE TO BAR RECOVERY UNDER THE OTHER CLAIM. IN OUR DECISION OF JUNE 3, 1958, B-135848, 37 COMP. GEN. 811, WE AMPLIFIED THE PRINCIPLE OF 34 COMP. GEN. 188 BY HOLDING THAT, IN A CASE WHERE THE AMOUNT TENDERED AND ACCEPTED CONSTITUTED THE FULL AMOUNT WHICH THEN COULD BE OFFERED UNDER CURRENT AND AUTHORITATIVE INTERPRETATIONS OF THE APPLICABLE PROVISIONS OF LAW, THE ACCEPTANCE OF THE TENDERED SETTLEMENT WOULD NOT BAR FURTHER CONSIDERATION OF THE MATTER IF IT LATER IS AUTHORITATIVELY DETERMINED THAT THE INTERPRETATIONS APPLICABLE ON THE DATE OF SETTLEMENT SHOULD BE CHANGED.

IN DECISION OF JULY 1, 1953, 33 COMP. GEN. 1, WE HELD THAT A FORMER ARMY OFFICER WHOSE RECORD HAD BEEN CORRECTED SO AS TO BRING HIM WITHIN THE TERMS OF THE ACT OF APRIL 3, 1939, WAS ENTITLED TO RETIREMENT PAY RETROACTIVE TO THE DATE OF HIS RELEASE FROM ACTIVE DUTY. SEE, ALSO, 32 COMP. GEN. 372, AND COMPARE 36 COMP. GEN. 210; 36 COMP. GEN. 516. THE ARMY AUTHORITIES, HOWEVER, WERE OF THE OPINION THAT, UNDER THE PROVISIONS OF SECTION 207, THE SECRETARY OF THE ARMY HAD DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNT TO BE PAID AS A RESULT OF THE CORRECTION OF A MILITARY RECORD AND COULD FIX AN EFFECTIVE DATE FOR THE COMMENCEMENT OF RETIRED PAY PAYMENTS LATER THAN THE DATE OF RELEASE FROM ACTIVE DUTY AND THEREBY LIMIT OR REDUCE THE AMOUNTS PAYABLE PURSUANT TO LAW. IT WAS NOT UNTIL OUR DECISION OF JULY 7, 1954, 34 COMP. GEN. 7, ALMOST A YEAR AFTER THE SETTLEMENT WAS MADE TO COLONEL ALLEY, THAT THE MATTER WAS FINALLY RESOLVED CONTRARY TO THE VIEWS OF THE ARMY AUTHORITIES. THUS AT THE TIME THE SECTION 207 SETTLEMENT WAS MADE TO COLONEL ALLEY IT CONSTITUTED THE FULL AMOUNT WHICH THE ARMY BELIEVED COULD BE OFFERED TO HIM UNDER ITS INTERPRETATION OF THE SECTION 207 PROVISIONS AND IT WAS NOT UNTIL AFTER THE SETTLEMENT HAD BEEN ACCEPTED THAT THE ARMY'S VIEWS WERE CHANGED. HAD THIS FINAL AUTHORITATIVE INTERPRETATION BEEN MADE PRIOR TO THE SETTLEMENT IN FAVOR OF COLONEL ALLEY THERE SEEMS LITTLE REASON TO DOUBT THAT THE SETTLEMENT WOULD HAVE BEEN MADE RETROACTIVE TO THE DATE OF HIS RELEASE FROM ACTIVE DUTY. WE DO NOT BELIEVE THAT THE FAILURE TO RESOLVE THIS DIFFERENCE OF OPINION AS TO THE PROPER APPLICATION OF SECTION 207 UNTIL AFTER THE SETTLEMENT IN COLONEL ALLEY'S CASE SHOULD OPERATE TO PREJUDICE HIS RIGHTS IN THE MATTER. HENCE, WE CONCLUDE THAT THIS CASE COMES WITHIN THE CHANGED INTERPRETATION PRINCIPLE OF THE DECISION OF JUNE 3, 1958. ALSO, IT IS OUR VIEW THAT COLONEL ALLEY'S ACCEPTANCE OF THE SUPPLEMENTAL PAYMENT CHECK APPARENTLY SENT TO HIM ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808, SHOULD NOT BE CONSIDERED AS AN ACCEPTANCE OF A "SETTLEMENT MADE PURSUANT TO SUBSECTION (B)" OF SECTION 207, SUCH SUPPLEMENTAL SETTLEMENT HAVING BEEN BASED PRIMARILY ON THE DECISION OF JUNE 11, 1957, AND HAVING EXTENDED TO COLONEL ALLEY EQUAL CONSIDERATION TO THAT ACCORDED OTHER RETIRED OFFICERS ENTITLED TO DUAL COMPENSATION UNDER THAT DECISION.

ACCORDINGLY, IT APPEARS THAT COLONEL ALLEY IS ENTITLED TO PAYMENT OF RETROACTIVE RETIRED PAY FROM THE DATE OF HIS RELEASE FROM ACTIVE DUTY TO THE EARLIEST DATE FOR WHICH HE HAS RECEIVED RETIRED PAY, ASSUMING THAT SUCH PAYMENT WOULD BE CORRECT IN OTHER RESPECTS. HE, THEREFORE, IS NOT ENTITLED TO ANY LONGEVITY CREDIT FOR ANY SERVICE AFTER THE DATE OF HIS RELEASE FROM ACTIVE DUTY. THE VOUCHER ENCLOSED WITH YOUR LETTER WILL BE RETAINED IN THIS OFFICE.