B-121116, OCTOBER 18, 1954, 34 COMP. GEN. 188

B-121116, OCTOBER 18, 1954, 34 COMP. GEN. 188

PAY - RETIRED - DISABILITY RETIREMENT PAY - ENTITLEMENT BASED ON CORRECTION OF MILITARY RECORDS THE ACCEPTANCE OF A SETTLEMENT UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, BY A FORMER ARMY OFFICER WHOSE MILITARY RECORD HAS BEEN CORRECTED TO SHOW ENTITLEMENT TO DISABILITY RETIREMENT PAY CONSTITUTES A COMPLETE RELEASE OF ANY CLAIM ON ACCOUNT OF SUCH CORRECTION AND THE OFFICER IS THEREAFTER PRECLUDED FROM RECOVERING FURTHER RETROACTIVE PAYMENT FOR ANY PRIOR PERIOD.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN DARRELL D. HIETT, OCTOBER 18, 1954:

FURTHER REFERENCE IS MADE TO LETTERS OF JUNE 15 AND 24, 1954, FROM YOUR ATTORNEY CONCERNING SETTLEMENT OF JUNE 14, 1954, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD JANUARY 19, 1947, TO SEPTEMBER 30, 1951.

IT APPEARS THAT YOU WERE RELEASED FROM ACTIVE DUTY ON JANUARY 18, 1947,"NOT BY REASON OF PHYSICAL DISABILITY," UNDER ORDERS OF NOVEMBER 19, 1946, AND THAT AS A RESULT OF ACTION TAKEN BY THE ARMY DISABILITY REVIEW BOARD, APPROVED BY DIRECTION OF THE PRESIDENT ON SEPTEMBER 28, 1951, HOLDING THAT YOU WERE PHYSICALLY INCAPACITATED FOR ACTIVE DUTY AS A RESULT OF AN INCIDENT OF THE SERVICE INCURRED WHILE ON ACTIVE DUTY, YOU WERE CERTIFIED FOR RETIREMENT PAY BENEFITS AT THE RATE OF $198.38 PER MONTH COMMENCING OCTOBER 1, 1951, UNDER THE ACT OF APRIL 3, 1939, AS AMENDED BY THE ACT OF JUNE 20, 1949, 63 STAT. 201. SUBSEQUENTLY YOU FILED SUIT IN THE COURT OF CLAIMS FOR RETROACTIVE RETIRED PAY FOR THE PERIOD HERE INVOLVED. PAYMENT OF RETIRED PAY WAS DISCONTINUED BY THE DEPARTMENT OF THE ARMY MARCH 1, 1953, FOR THE REASON THAT THE ARMY DISABILITY REVIEW BOARD DID NOT HAVE JURISDICTION TO ACT IN YOUR CASE. THE MATTER THEN WAS BROUGHT BEFORE THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, AND ON SEPTEMBER 30, 1953, THE SECRETARY OF THE ARMY IN APPROVING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF SUCH BOARD, DIRECTED THAT YOUR ARMY RECORDS BE CORRECTED TO SHOW THAT YOU BECAME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE IN SEPTEMBER 1944 AS A RESULT OF AN INCIDENT OF THE SERVICE IN LINE OF DUTY AND THAT YOU WERE RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON JANUARY 18, 1947, AND CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS UNDER THE SAID ACT OF APRIL 3, 1939, AS AMENDED, EFFECTIVE OCTOBER 1, 1951. THE BOARD FURTHER RECOMMENDED AND THE SECRETARY DIRECTED PAYMENT OF RETIRED PAY FOUND TO BE DUE AS A RESULT OF SUCH CORRECTION OF THE RECORD "EFFECTIVE AS OF 1 OCTOBER 1951," LESS

AMOUNTS RECEIVED SINCE THAT DATE.

A LETTER DATED OCTOBER 12, 1953, FROM YOUR ATTORNEY, MR. HARMEL, WAS RECEIVED IN THIS OFFICE ON THE FOLLOWING DAY, MAKING CLAIM ON YOUR BEHALF FOR RETROACTIVE RETIRED PAY FOR THE PERIOD JANUARY 18, 1947, TO SEPTEMBER 30, 1951, ON THE BASIS OF THE RULE FOLLOWED IN THE HARMICK CASE (120 C.1CLS. 17) AND IT WAS STATED THAT A MOTION TO DISMISS THE ACTION THEN PENDING IN THE COURT OF CLAIMS HAD BEEN FORWARDED TO THE ATTORNEY GENERAL FOR FILING IN THE EVENT THE CLAIM WAS ALLOWED. SINCE NO INFORMATION WAS FURNISHED AS TO THE ACTION TAKEN BY THE BOARD FOR CORRECTION OF MILITARY RECORDS, THE CLAIM WAS DISALLOWED BY SETTLEMENT OF JANUARY 18, 1954. AFTER BEING ADVISED OF THE BOARD'S ACTION BY LETTER DATED JANUARY 21, 1954, FROM YOUR ATTORNEY, INQUIRY WAS MADE AS TO THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY PURSUANT TO SUCH CORRECTIVE ACTION. THE REPORT FURNISHED SHOWS THAT IN ACCEPTING PAYMENT OF AMOUNTS DUE ON AND AFTER OCTOBER 1, 1951, YOU SIGNED A CERTIFICATE IN WHICH IT IS STATED THAT "1I * * * DO AGREE THAT ACCEPTANCE OF THIS SETTLEMENT SHALL CONSTITUTE COMPLETE RELEASE BY ME OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF MY MILITARY RECORDS.'

SECTION 207 (C) OF THE CITED LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, (C), PROVIDES WITH RESPECT TO CORRECTIONS OF MILITARY RECORDS AUTHORIZED BY THAT ACT THAT---

THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.

THE BOARD FOR CORRECTION OF MILITARY RECORDS, IN ITS CONCLUSIONS REGARDING YOUR CASE, STATED THAT IN MAKING ITS ACTION EFFECTIVE AS OF OCTOBER 1, 1951, IT WAS "MINDFUL OF THE LONG ESTABLISHED PRACTICE OF THE CONGRESS, IN SIMILAR CASES, GENERALLY TO PROVIDE THAT NO BACK PAY OR ALLOWANCES SHOULD BE HELD TO HAVE ACCRUED PRIOR TO THE PASSAGE OF A RELIEF ACT.'

THE DEPARTMENT OF THE ARMY IS AUTHORIZED TO PAY CLAIMS FOR AMOUNTS FOUND DUE AS A RESULT OF ACTION BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. SEE SECTION 207 (B) OF THE CITED 1946 ACT, AS AMENDED. TENDERING PAYMENT ONLY FOR AMOUNTS DUE AFTER OCTOBER 1, 1951, THE SETTLEMENT DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, EXPRESSLY ADVISED YOU BY LETTER DATED MAY 20, 1954, THAT YOUR SIGNATURE TO THE CLAIMS CERTIFICATE SENT YOU "WILL INDICATE YOUR WILLINGNESS TO ACCEPT THE ABOVE AMOUNT AS A FULL, FINAL AND COMPLETE SETTLEMENT AND RELEASE (OF) ANY CLAIM YOU HAVE AGAINST THE UNITED STATES GOVERNMENT BECAUSE OF THE CORRECTION OF YOUR MILITARY RECORDS.' THE CERTIFICATE ITSELF WAS CLEAR AND DEFINITE THAT ACCEPTANCE WOULD CONSTITUTE A COMPLETE RELEASE OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF YOUR MILITARY RECORDS. YOU NOT ONLY SIGNED AND RETURNED THE CLAIMS CERTIFICATE BUT YOU ACCEPTED THE PAYMENT THUS PROFFERED IN FULL SETTLEMENT. IN VIEW OF THE PLAIN PROVISIONS OF SECTION 207 (C) OF THE ACT, 65 STAT. 655, QUOTED ABOVE, MAKING SUCH AN ACCEPTANCE A COMPLETE RELEASE OF ANY CLAIM BASED ON THE CORRECTION OF RECORDS IN SUCH CASES, THIS OFFICE IS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM FOR ADDITIONAL RETROACTIVE RETIRED PAY BASED ON THE CORRECTION OF YOUR RECORDS UNDER THAT STATUTE. ACCORDINGLY, THE SETTLEMENT OF JUNE 14, 1954, IS SUSTAINED.