B-118800, JAN. 11, 1966, 45 COMP. GEN. 389

B-118800: Jan 11, 1966

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PAY - RETIRED - DISABILITY - ADMINISTRATIVE DETERMINATION NECESSITY THE PAYMENT OF DISABILITY RETIRED PAY TO AN OFFICER OF THE UNIFORMED SERVICES WHO WITHOUT A CORRECTION OF MILITARY RECORDS PURSUANT TO 10 U.S.C. 1552 WAS RETROACTIVELY PLACED ON THE ARMY RETIRED LIST FOLLOWING THE AWARD OF A MONEY JUDGMENT TO HIM FOR A PERIOD SUBSEQUENT TO HOSPITALIZATION FOR A CEREBRAL THROMBOSIS INCURRED WHILE SERVING ON "ACTIVE DUTY FOR TRAINING" IN THE OFFICERS' RESERVE CORPS WAS PROPER. THE SECRETARY HAVING MADE THE REQUIRED DETERMINATION OF PHYSICAL DISABILITY WHILE THE OFFICER WAS RECEIVING BASIC PAY. THE RULE IN THAT CASE THAT A CORRECTION OF MILITARY RECORDS IS A CONDITION PRECEDENT TO RETIREMENT BY REASON OF DISABILITY AND ENTITLEMENT TO RETIRED PAY FOR ANY PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT IS NOT FOR APPLICATION.

B-118800, JAN. 11, 1966, 45 COMP. GEN. 389

PAY - RETIRED - DISABILITY - ADMINISTRATIVE DETERMINATION NECESSITY THE PAYMENT OF DISABILITY RETIRED PAY TO AN OFFICER OF THE UNIFORMED SERVICES WHO WITHOUT A CORRECTION OF MILITARY RECORDS PURSUANT TO 10 U.S.C. 1552 WAS RETROACTIVELY PLACED ON THE ARMY RETIRED LIST FOLLOWING THE AWARD OF A MONEY JUDGMENT TO HIM FOR A PERIOD SUBSEQUENT TO HOSPITALIZATION FOR A CEREBRAL THROMBOSIS INCURRED WHILE SERVING ON "ACTIVE DUTY FOR TRAINING" IN THE OFFICERS' RESERVE CORPS WAS PROPER, A CORRECTION UNDER SECTION 1552 TO GIVE THE OFFICER A RETIRED STATUS AND A RIGHT TO RETIRED PAY NOT BEING NECESSARY, THE SECRETARY HAVING MADE THE REQUIRED DETERMINATION OF PHYSICAL DISABILITY WHILE THE OFFICER WAS RECEIVING BASIC PAY, A DETERMINATION ABSENT IN FRITH V. UNITED STATES (156 CT.CL. 188; THEREFORE, THE RULE IN THAT CASE THAT A CORRECTION OF MILITARY RECORDS IS A CONDITION PRECEDENT TO RETIREMENT BY REASON OF DISABILITY AND ENTITLEMENT TO RETIRED PAY FOR ANY PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT IS NOT FOR APPLICATION, AND THE OFFICER MAY RETAIN PAYMENTS RECEIVED AND MAY BE PAID THE RETIRED PAY WITHHELD. PAY - RETIRED - STATUS ON RETIRED LIST - SUBSEQUENT TO JUDGMENT AWARD THE FACT THAT A JUDICIAL DECISION IS RENDERED ON THE MERITS OF A CASE DOES NOT ALWAYS ESTABLISH A PROPER LEGAL BASIS FOR PAYMENT OF RETIRED OR DISABILITY RETIREMENT PAY BEYOND THE PERIOD COVERED BY THE JUDGMENT; THEREFORE, ACCOUNTING AND DISBURSING OFFICERS SHOULD AVAIL THEMSELVES OF THE AUTHORITY IN 31 U.S.C. 74 TO PRESENT DOUBTFUL SITUATIONS OF THIS NATURE TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION IN ORDER TO PROTECT THE INTERESTS OF THE UNITED STATES AS WELL AS THE RIGHTS OF THE INDIVIDUALS INVOLVED.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, JANUARY 11, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY, IN THE CIRCUMSTANCES HEREUNDER SET FORTH, OF PAYMENT OF RETIRED PAY TO COLONEL CLARENCE A. REMALEY, 0 295 333, U.S. ARMY RESERVE, RETIRED, FOR THE PERIOD NOVEMBER 1, 1964 TO AUGUST 31, 1965, INCLUSIVE. A VOUCHER STATED IN COLONEL REMALEY'S FAVOR AND OTHER PERTINENT PAPERS WERE RECEIVED AS ENCLOSURES TO YOUR LETTER WHICH WAS FORWARDED HERE UNDER D.O. NO. A-877 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL REMALEY FILED SUIT IN THE COURT OF CLAIMS ON JANUARY 29, 1954 (CT.CL. PETITION NO. 40-54) FOR RETIRED PAY "FROM NOVEMBER 1, 1952," BASED ON A DISABILITY RESULTING FROM A CEREBRAL THROMBOSIS. THE DISABILITY OCCURRED ON MAY 12, 1952, WHILE COLONEL REMALEY WAS SERVING AS A COLONEL IN THE OFFICERS' RESERVE CORPS ON A "SHORT TOUR OF ACTIVE DUTY TRAINING" COVERING THE PERIOD FROM APRIL 21 TO MAY 23, 1952, INCLUSIVE. THEREAFTER COLONEL REMALEY WAS A PATIENT IN ARMY HOSPITALS FROM MAY 13, 1952 TO OCTOBER 31, 1952, INCLUSIVE, AND THE RECORD SHOWS THAT HE WAS IN RECEIPT OF ACTIVE DUTY BASIC PAY AND ALLOWANCES THROUGH THE LATTER DATE UNDER AUTHORITY OF 10 U.S.C. 456 (1952 ED.).

IN THE DECISION OF APRIL 3, 1956 (134 CT.CL. 874), RENDERED IN FAVOR OF COLONEL REMALEY, THE COURT OF CLAIMS STATED "THE QUESTION IS, WAS THE PLAINTIFF ON A TOUR OF "ACTIVE DUTY FOR TRAINING" WITHIN THE MEANING OF THE APPLICABLE STATUTES (10 U.S.C. 456; 37 U.S.C. 272 (1952 ED.) (? WE HOLD THAT HE WAS NOT.' THE COURT FURTHER STATED:

THE PHYSICAL EVALUATION BOARD ON OCTOBER 21, 1952, FOUND THAT THE PLAINTIFF WAS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE BY REASON OF PHYSICAL DISABILITY INCURRED IN THE PERFORMANCE OF HIS DUTY. IT RATED HIS DISABILITY AT 30 PERCENT. THE SECRETARY OF THE ARMY DISAPPROVED THESE FINDINGS BECAUSE THE DISABILITY RESULTED FROM A DISEASE, AND NOT FROM AN INJURY, AND WAS, THEREFORE, NOT COVERED BY SUBSECTION 402 (C) OF THE CAREER COMPENSATION ACT. THIS WAS A DECISION THAT THE PLAINTIFF WAS NOT ON EXTENDED ACTIVE DUTY, WITHIN THE COVERAGE OF SUBSECTIONS 402 (A) OR (B) OF THAT ACT.

THE SECRETARY OF THE ARMY'S INTERPRETATION OF THE STATUTES WAS ERRONEOUS. THE PLAINTIFF IS ENTITLED TO RECOVER, AND JUDGMENT WILL BE ENTERED TO THAT EFFECT * * *.

ON OCTOBER 2, 1956, A JUDGMENT FOR THE AMOUNT DUE COLONEL REMALEY WAS ENTERED BY THE COURT OF CLAIMS IN THE NET AMOUNT OF $12,094.71, REPRESENTING DISABILITY RETIREMENT PAY (LESS ALL PROPER DEDUCTIONS) FOR THE PERIOD NOVEMBER 1, 1952 TO MARCH 31, 1956, INCLUSIVE. THE RECORD DISCLOSES THAT AS A RESULT OF THE DECISION OF APRIL 3, 1956, AND THE MONEY JUDGMENT OF OCTOBER 2, 1956, THE DEPARTMENT OF THE ARMY PLACED COLONEL REMALEY ON THE TEMPORARY DISABILITY RETIRED LIST RETROACTIVELY EFFECTIVE AS OF OCTOBER 31, 1952 (PARAGRAPH 63, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 95, MAY 15, 1957) AND TRANSFERRED HIM TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE NOVEMBER 30, 1957 (PARAGRAPH 63, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 232, NOVEMBER 27, 1957). IT IS STATED IN PARAGRAPH 5 OF YOUR LETTER THAT COLONEL REMALEY WAS PAID RETIRED PAY BY THE DEPARTMENT OF THE ARMY FOR THE PERIOD FROM APRIL 1, 1956 THROUGH OCTOBER 31, 1964, AT WHICH TIME PAYMENT OF RETIRED PAY WAS DISCONTINUED ON THE BASIS OF THE HOLDING OF THIS OFFICE IN THE CASE OF CAPTAIN OLLIE T. FRITH, AIR FORCE RESERVE, IN DECISION OF SEPTEMBER 10, 1963, 43 COMP. GEN. 242. IT FURTHER APPEARS THAT COLONEL REMALEY WAS REQUESTED BY THE ARMY FINANCE CENTER IN LETTER DATED NOVEMBER 6, 1964 (COPY RECEIVED AS ENCLOSURE NO. 13 TO YOUR LETTER) TO REFUND $32,142.88, REPRESENTING THE AMOUNT OF RETIRED PAY WHICH HAD BEEN PAID TO HIM FOR THE PERIOD APRIL 1, 1956 TO OCTOBER 31, 1964, INCLUSIVE.

THE PRIMARY ISSUE THEREFORE IS WHETHER THE RULE IN THE FRITH CASE, 156 CT.CL. 188, REQUIRES THE ADMINISTRATIVE ACTION TAKEN IN COLONELREMALEY'S CASE. IN THAT CONNECTION YOU STATE (PARAGRAPH 10 OF YOUR LETTER) THAT BECAUSE THE MILITARY RECORDS OF COLONEL REMALEY HAVE NOT BEEN CORRECTED UNDER THE AUTHORITY PRESCRIBED IN 10 U.S.C. 1552 TO GIVE HIM A RETIRED STATUS, YOU ARE IN DOUBT AS TO WHETHER HIS PLACEMENT ON THE RETIRED LIST BY THE SECRETARY OF THE ARMY CONSTITUTES A LEGAL BASIS FOR PAYMENT OF RETIRED PAY SUBSEQUENT TO MARCH 31, 1956, THE LAST DAY COVERED BY THE MONEY JUDGMENT OF OCTOBER 2, 1956.

IN THE FRITH CASE THIS OFFICE HELD (QUOTING THE SYLLABUS) THAT:

AN AIR FORCE CAPTAIN DISCHARGED FOR DISABILITY WITH SEVERANCE PAY WHO SUBSEQUENTLY IN FRITH V. UNITED STATES, 156 CT.CL. 188, IS AWARDED A MONEY JUDGMENT EQUAL TO RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN FROM THE DATE OF DISCHARGE THROUGH DATE OF JUDGMENT, LESS THE DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION AND THE MUSTERING- OUT PAYMENT RECEIVED AFTER RELEASE FROM ACTIVE DUTY, MAY NOT ON THE BASIS OF THE DECISION CONTINUE TO RECEIVE RETIRED PAY FOR PERIODS SUBSEQUENT TO THE PERIOD COVERED BY THE JUDGMENT IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF THE OFFICER'S RECORDS BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, THE DECISION NOT BESTOWING ON THE OFFICER ANY STATUS IN THE AIR FORCE, ACTIVE OR RETIRED, AND THE MONEY JUDGMENT NEITHER AFFECTING A CHANGE IN THE OFFICER'S RECORDS THAT FAILED TO DISCLOSE A MILITARY STATUS SUBSEQUENT TO DATE OF DISCHARGE, NOR COMPELLING EXECUTIVE ACTION TO EFFECT THE CHANGE.

CAPTAIN FRITH WAS DISCHARGED ON AUGUST 14, 1954, FROM THE AIR FORCE RESERVE BY REASON OF PHYSICAL DISABILITY. THE PERTINENT STATUTORY PROVISIONS GOVERNING RETIREMENT BY REASON OF PHYSICAL DISABILITY WITH ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY IN EFFECT ON OCTOBER 31, 1952, WHEN COLONEL REMALEY WAS RELEASED FROM HOSPITALIZATION TO RETURN TO HIS HOME AND RESUME AN INACTIVE DUTY STATUS IN THE OFFICERS' RESERVE CORPS AND ON AUGUST 14, 1954, WHEN CAPTAIN FRITH WAS SEPARATED FROM THE AIR FORCE RESERVE BY DISCHARGE BECAUSE OF PHYSICAL DISABILITY WERE SUBSECTIONS (A) AND (B) OF SECTION 402, CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816-817, 37 U.S.C. 272 (A) AND (B) (1952 ED.), RESPECTIVELY. UNDER THOSE STATUTORY PROVISIONS PLACEMENT ON THE TEMPORARY OR PERMANENT DISABILITY RETIRED LIST WITH ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY AS THEREIN PROVIDED, WAS DEPENDENT--

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OFA REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY, OR A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY WHO HAS BEEN CALLED OR ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD IN EXCESS OF THIRTY DAYS, IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY * * * AND (5) THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE, THE NAME OF SUCH MEMBER SHALL BE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST OF HIS SERVICE BY THE SECRETARY CONCERNED AND SUCH MEMBER SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) OF THIS SECTION: PROVIDED THAT IF CONDITION (5) ABOVE IS MET BY A FINDING THAT SUCH DISABILITY IS OF A PERMANENT NATURE, SUCH MEMBER MAY BE RETIRED BY THE SECRETARY CONCERNED AND, UPON RETIREMENT, SHALL BE ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SUBSECTION (D) * * *.

THE LAW REQUIRED AS A CONDITION PRECEDENT TO RETIREMENT BY REASON OF DISABILITY THAT THE SECRETARY CONCERNED MAKE THE NECESSARY DISABILITY RETIREMENT DETERMINATION WHILE THE MEMBER WAS ,ENTITLED TO RECEIVE BASIC PAY.' IN THE FRITH CASE NO SUCH DETERMINATION WAS EVER MADE BY THE SECRETARY OF THE AIR FORCE EITHER PRIOR OR SUBSEQUENT TO FRITH'S DISCHARGE FROM THE SERVICE ON AUGUST 14, 1954. MOREOVER, SUCH A DETERMINATION, IF MADE AFTER AUGUST 14, 1954, WHEN FRITH NO LONGER WAS ENTITLED TO RECEIVE BASIC PAY WOULD NOT HAVE PROVIDED ANY LEGAL BASIS FOR THE PAYMENT TO HIM OF DISABILITY RETIREMENT PAY FOR ANY PART OF THE PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT OF JANUARY 12, 1962 IN FRITH V. UNITED STATES.

THE COURT OF CLAIMS RENDERS JUDGMENT FOR A SUM OF MONEY AND THE RENDERING OF SUCH A JUDGMENT ,DOES NOT HAVE THE EFFECT OF ACTUALLY CHANGING AN OFFICIAL RECORD OR OF COMPELLING EXECUTIVE ACTION.' SEE THE SEVERAL COURT OF CLAIMS DECISIONS CITED ON THIS POINT AT 43 COMP. GEN. 244. HENCE, THE EMPHASIS OF OUR DECISION OF SEPTEMBER 10, 1963, CONCERNING CAPTAIN FRITH WAS NECESSARILY PLACED UPON THE ABSENCE OF ANY APPROPRIATE CORRECTIVE ACTION BY THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS WHICH, IN THE CIRCUMSTANCES OF THE FRITH CASE, CONSTITUTED THE ONLY LEGAL METHOD AVAILABLE TO AUTHORIZE THE PAYMENT TO HIM BY THE ACCOUNTING AND DISBURSING OFFICERS OF THE GOVERNMENT OF DISABILITY RETIREMENT PAY FOR ANY PART OF THE PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT OF JANUARY 12, 1962.

THE FACTS IN THE CASE OF COLONEL REMALEY ARE ENTIRELY DIFFERENT. THE RECORD SHOWS (FINDINGS OF FACT NOS. 4 AND 5 IN DECISION OF APRIL 3, 1956) THAT THE SECRETARY OF THE ARMY THROUGH THE ADJUTANT GENERAL ON OCTOBER 30, 1952, DISAPPROVED THE PROCEEDINGS AND FINDINGS OF THE PHYSICAL EVALUATION BOARD WHICH HAD FOUND ON OCTOBER 21, 1952, THAT REMALEY "WAS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE BY REASON OF PHYSICAL DISABILITY RESULTING FROM MILD CEREBRAL THROMBOSIS WHICH WAS THE PROXIMATE RESULT OF THE PERFORMANCE OF DUTY AND WAS PERMANENT" ON THE BASIS THAT:

THE DETERMINATION HAVING BEEN MADE THAT COLONEL CLARENCE A. REMALEY, 0295333, CE-ORC, IS UNFIT FOR ACTIVE SERVICE AND THAT SUCH UNFITNESS RESULTED FROM A DISEASE RATHER THAN AN INJURY, THE PROCEEDINGS OF THE PHYSICAL EVALUATION BOARD CONVENED AT VALLEY FORGE ARMY HOSPITAL, PHOENIXVILLE, PENNSYLVANIA, ON 21 OCTOBER 1952 IN THE CASE OF COLONEL REMALEY ARE HEREBY DISAPPROVED, PURSUANT TO THE PROVISIONS OF SECTION 402C, PUBLIC LAW 351, 81ST CONGRESS.

IT IS APPARENT THAT THE FINDINGS OF THE PHYSICAL EVALUATION BOARD THAT COLONEL REMALEY HAD BECOME UNFIT FOR ACTIVE SERVICE BY REASON OF DISEASE AS DISTINGUISHED FROM AN INJURY WERE IN FACT INCORPORATED IN AND BECAME A PART OF THE SECRETARY'S DETERMINATION ON OCTOBER 30, 1952, THAT THE MATTER CAME WITHIN THE SCOPE OF SUBSECTION (C), 37 U.S.C. 272 (C) (1952 ED.), RATHER THAN SUBSECTIONS (A) OR (B) OF SECTION 402 OF THE 1949 LAW. THE HOLDING BY THE COURT OF CLAIMS THAT THE SECRETARY OF THE ARMY'S INTERPRETATION OF THE PROVISIONS OF SECTION 402 "WAS ERRONEOUS" RELATED SOLELY TO THAT PART OF THE SECRETARY'S DETERMINATION THAT HAD REFERENCE TO SUBSECTION (C). CONSEQUENTLY, UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION OF APRIL 3, 1956, IT IS ESTABLISHED THAT THE SECRETARY OF THE ARMY MADE A DETERMINATION ON OCTOBER 30, 1952, WHILE COLONEL REMALEY WAS ENTITLED TO RECEIVE BASIC PAY THAT COLONEL REMALEY WAS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE BY REASON OF A PHYSICAL DISABILITY RATED AT 30 PERCENT INCURRED IN THE PERFORMANCE OF DUTY. THAT DETERMINATION PLACED COLONEL REMALEY SQUARELY WITHIN THE PURVIEW OF SUBSECTIONS (A) OR (B) OF SUBSECTION 402 AND THEREFORE HE MUST BE CONSIDERED AS HAVING BEEN LEGALLY ENTITLED TO BE RETIRED FOR PHYSICAL DISABILITY WITH ENTITLEMENT TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM NOVEMBER 1, 1952. THE DEPARTMENT OF THE ARMY SPECIAL ORDERS OF MAY 15, 1957, WHICH PLACED COLONEL REMALEY ON THE TEMPORARY DISABILITY RETIRED LIST AS OF OCTOBER 31, 1952, AFTER HIS ENTITLEMENT TO RECEIVE BASIC PAY HAD CEASED, MERELY CONFIRMED (EXPRESSLY SO STATED IN THE ORDER ITSELF) THAT SUCH ACTION WAS BASED ON THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION OF APRIL 3, 1956.

IN SUCH CIRCUMSTANCES CORRECTIVE ACTION BY THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS UNDER THE PROVISIONS OF LAW NOW CODIFIED IN 10 U.S.C. 1552 WAS NOT NECESSARY AND THE ABSENCE OF SUCH A CORRECTION OF RECORDS HAS NOT AFFECTED COLONEL REMALEY'S RIGHT TO RECEIVE DISABILITY RETIRED PAY FROM APRIL 1, 1956, TO DATE. ACCORDINGLY, PAYMENT ON THE VOUCHER RETURNED HEREWITH, STATED IN FAVOR OF COLONEL REMALEY, COVERING DISABILITY RETIREMENT PAY FOR THE PERIOD NOVEMBER 1, 1964 THROUGH AUGUST 31, 1965, IS AUTHORIZED, IF OTHERWISE CORRECT. ALSO, IT WOULD APPEAR THAT COLONEL REMALEY WAS ENTITLED TO RECEIVE OTHERWISE PROPER DISABILITY RETIREMENT PAY DURING THE PERIOD APRIL 1, 1956 TO OCTOBER 31, 1964, INCLUSIVE.

THE ISSUE PRESENTED IN COLONEL REMALEY'S CASE FOCUSES ATTENTION ON THE PROBLEMS CONFRONTING THE ACCOUNTING AND DISBURSING OFFICERS OF THE GOVERNMENT UNDER COURT OF CLAIMS DECISIONS AWARDING JUDGMENT IN FAVOR OF THE PLAINTIFF FOR RETIRED OR DISABILITY RETIREMENT PAY. ONE BASIC QUESTION ALWAYS ARISES AS TO WHETHER THE PLAINTIFF LEGALLY IS ENTITLED TO BE PAID SUCH RETIRED OR DISABILITY RETIREMENT PAY FOR ANY PERIOD FOLLOWING THE PERIOD COVERED BY THE JUDGMENT IN QUESTION. IT WILL BE OBSERVED THAT IN THE FRITH CASE THIS OFFICE CONCLUDED THERE WAS NO LEGAL BASIS FOR SUCH PAYMENTS IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF RECORD UNDER AUTHORITY OF 10 U.S.C. 1552, WHEREAS THE OPPOSITE CONCLUSION HAS BEEN REACHED ABOVE WITH RESPECT TO COLONEL REMALEY. QUITE CLEARLY THE PARTICULAR FACTS OF EACH CASE AND THE APPLICABLE PROVISIONS OF LAW GOVERN ANY SUCH DETERMINATION. THE MERE CIRCUMSTANCE THAT THE JUDICIAL DECISION CONCERNED WAS RENDERED ON THE MERITS OF THE CASE, AS DISTINGUISHED FROM A JUDGMENT BASED ON AN AGREEMENT OR STIPULATION BETWEEN THE PARTIES, DOES NOT ALWAYS ESTABLISH A PROPER LEGAL BASIS FOR PAYMENT OF RETIRED OR DISABILITY RETIREMENT PAY BEYOND THE PERIOD COVERED BY THE JUDGMENT IN THE PARTICULAR CASE. THE PROVISIONS OF 31 U.S.C. 74 ARE AVAILABLE TO ACCOUNTING AND DISBURSING OFFICERS AND SHOULD BE EMPLOYED IN DOUBTFUL SITUATIONS OF THIS NATURE TO PROTECT THE INTERESTS OF THE GOVERNMENT AS WELL AS THE RIGHTS OF THE PARTICULAR INDIVIDUALS INVOLVED.