B-127335, JANUARY 21, 1963, 42 COMP. GEN. 389

B-127335, JANUARY 21, 1963, 42 COMP. GEN. 389

PAY - RETIRED - DISABILITY - DISABILITY DETERMINATION SUBSEQUENT TO RELEASE - STATUTE OF LIMITATION ALTHOUGH AN OFFICER RETIRED UNDER THE AGE AND SERVICE REQUIREMENTS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 ATTAINED A RETIRED STATUS UNDER THE ACT OF APRIL 3, 1939, 10 U.S.C. 452 (1952 ED.), UPON THE CORRECTION OF HIS MILITARY RECORDS SUBSEQUENT TO A JUDGMENT AWARDING HIM DISABILITY RETIRED PAY, THE ADMINISTRATIVE PAYMENTS OF DISABILITY RETIRED PAY FOR THE PERIOD BETWEEN THE JUDGMENT AND THE RECORD CORRECTION, DURING WHICH TIME THE OFFICER REMAINED A MEMBER RETIRED UNDER THE 1948 ACT, WERE IMPROPER; HOWEVER, THE CORRECTION OF THE OFFICER'S RECORDS TO GIVE HIM A RETIRED STATUS UNDER THE 1939 ACT IN EFFECT VALIDATED THE IMPROPER PAYMENTS, AND THE RUNNING OF THE 10-YEAR LIMITATION PERIOD OF OCTOBER 9, 1940 ACT DURING WHICH A CLAIM COULD BE FILED BEGINNING ON THE DATE OF THE RECORD CORRECTION, THERE IS NO STATUTORY BAR TO THE PAYMENT OF DISABILITY RETIRED PAY UNDER THE 1939 ACT FOR A PERIOD PRIOR TO THE JUDGMENT AND INCLUDED IN THE RECORD CORRECTION. 41 COMP. GEN. 283 AND B-143217, FEBRUARY 19, 1962, MODIFIED.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, JANUARY 21, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 25, 1962, WITH ENCLOSURES- -- FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE ON DECEMBER 5, 1962--- REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER FOR RETIRED PAY IN FAVOR OF LIEUTENANT COLONEL JOHN H. FREDERICK, AUS, RETIRED, IN THE AMOUNT OF $18,633.90, REPRESENTING DISABILITY RETIRED PAY FOR THE PERIOD AUGUST 25, 1945, THROUGH MARCH 4, 1950. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NUMBER 681 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ON JUNE 30, 1952, COLONEL FREDERICK WAS CERTIFIED FOR RETIREMENT PAY BENEFITS UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087-1091 (NOW CODIFIED IN CHAPTER 67, 10 U.S. CODE). AS THE RESULT OF A PETITION FILED IN THE UNITED STATES COURT OF CLAIMS, CT.CL. NO. 111-56, COLONEL FREDERICK OBTAINED A JUDGMENT (NOVEMBER 18, 1960, 150 CT.CL. 769) IN THE AMOUNT OF $26,620.72, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY AND VETERANS ADMINISTRATION DISABILITY COMPENSATION ALREADY RECEIVED, AND DISABILITY RETIRED PAY FOR THE PERIOD MARCH 5, 1950, THROUGH JULY 15, 1960. FOLLOWING THE SAID JUDGMENT, THE RETIRED PAY DIVISION OF THE DEPARTMENT OF THE ARMY COMMENCED PAYMENT OF DISABILITY RETIRED PAY TO COLONEL FREDERICK EFFECTIVE JULY 16, 1960, BASED ON THE RATE AUTHORIZED UNDER THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, 10 U.S.C. 456 (1952 ED.). ON MAY 17, 1962, THE UNDER SECRETARY OF THE ARMY APPROVED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, AND DIRECTED THAT COLONEL FREDERICK'S MILITARY RECORDS BE CORRECTED TO SHOW THAT HE WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON AUGUST 24, 1945, AND CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS IN THE GRADE OF LIEUTENANT COLONEL, EFFECTIVE AUGUST 25, 1945, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, SUPRA.

THE QUESTION PRESENTED FOR DECISION IS WHETHER THE RETIRED MEMBER'S ENTITLEMENT TO RETIREMENT PAY IN THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, FOR THE PERIOD HERE INVOLVED, IS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THE QUESTION SUBMITTED ARISES BECAUSE OF A BELIEF THAT THE PAYMENTS OF DISABILITY RETIREMENT PAY FROM JULY 16, 1960, WERE AUTHORIZED AS A RESULT OF THE COURT'S JUDGMENT, AND THAT THE RECORD CORRECTION ACTION CONSTITUTED AN ATTEMPT TO AVOID THE 10-YEAR LIMITATION PERIOD OF THE 1940 ACT.

IN THE CASE OF BETTS V. UNITED STATES, 145 CT.CL. 530 (1959), THE COURT REFERRED TO THE DEFENDANT'S ARGUMENT THAT:

* * * A DECISION AWARDING THE PLAINTIFF THE RETIRED PAY WHICH THE STATUES GRANT TO OFFICERS IN HIS SITUATION WOULD BE A DECISION APPOINTING THE PLAINTIFF TO A COMMISSIONED OFFICE IN THE ARMY, AND THAT THE AUTHORITY TO MAKE SUCH APPOINTMENTS IS, BY THE CONSTITUTION, LODGED EXCLUSIVELY IN THE EXECUTIVE.

THE COURT CONCLUDED THAT:

THE COURT HAS, OF COURSE, NO AUTHORITY TO APPOINT PERSONS TO PUBLIC OFFICE. IT DOES HAVE JURISDICTION TO AWARD THEM MONEY DAMAGES AS COMPENSATION FOR VIOLATIONS OF RIGHTS GRANTED TO THEM BY STATUTE OR REGULATION. THERE IS NO CONSTITUTIONAL IMPEDIMENT TO ITS DOING THAT. * * * WHAT THE EXECUTIVE MAY OR MAY NOT DO BY WAY OF SPECIFIC CORRECTION OF ERRORS OR INJUSTICES WHICH ARE EMBODIED IN ITS MILITARY RECORDS IS NOT SUBJECT TO REVIEW BY THIS COURT.

THE JUDGMENT OBTAINED BY COLONEL FREDERICK SERVED ONLY TO AWARD HIM MONEY WHICH THE COURT BELIEVED SHOULD HAVE BEEN PAID TO HIM FOR THE PERIOD MARCH 5, 1950, THROUGH JULY 15, 1960. THE JUDGMENT DID NOT, AND COULD NOT, GIVE HIM THE STATUS OF AN OFFICER ON THE DISABILITY RETIRED LIST AND HENCE, FURNISHED NO BASIS FOR ADMINISTRATIVE PAYMENT OF RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939. IN VIEW OF THE CORRECTION BOARD ACTION TAKEN IN THIS CASE, IT IS ASSUMED THAT NO OTHER ADMINISTRATIVE ACTION AFFECTING HIS ENTITLEMENT TO RETIREMENT PAY WAS TAKEN PRIOR TO THAT TIME. IN SUCH CIRCUMSTANCES, IT APPEARS THAT HIS RETIRED STATUS, FOR RETIRED PAY PURPOSES, FOR PERIODS FOLLOWING THE PERIOD OF THE JUDGMENT, REMAINED THE SAME--- THAT IS, AS A MEMBER RETIRED UNDER THE 1948 ACT, FOR AGE AND YEARS OF SERVICE, AND THAT PAYMENT OF RETIRED PAY ON ANY OTHER BASIS FROM JULY 16, 1960, WAS ERRONEOUS AND IMPROPER. IT WAS NOT UNTIL HIS RECORDS WERE CORRECTED ON MAY 17, 1962, THAT COLONEL FREDERICK ATTAINED A RETIRED STATUS UNDER THE 1939 ACT AND BECAME ENTITLED TO RETIREMENT PAY AS THERE PROVIDED, AND THE RUNNING OF THE 10-YEAR PERIOD DURING WHICH A CLAIM COULD BE FILED BEGAN ON THAT DATE. HENCE, THE DISABILITY RETIRED PAYMENTS MADE FROM JULY 16, 1960, ALTHOUGH IMPROPER WHEN MADE, HAVE IN EFFECT BEEN VALIDATED BY THE CORRECTION OF THE RECORD AND THERE IS NO STATUTORY BAR TO PAYMENT OF RETIREMENT PAY FOR THE PERIOD AUGUST 25, 1945, TO MARCH 4, 1950. SEE 34 COMP. GEN. 7; 39 COMP. GEN. 20; AND GEORGE H. SEASTROM V. UNITED STATES, 147 CT. CL. COMP. GEN. 20; AND GEORGE H. SEASTROM V. UNITED STATES, 147 CT.CL. 453. TO THE EXTENT THAT ANY LANGUAGE USED IN 41 COMP. GEN. 283 AND B-143217, FEBRUARY 19, 1962, IS SUSCEPTIBLE TO AN INTERPRETATION CONTRARY TO THE CONCLUSIONS REACHED HEREIN, THE VIEWS THERE EXPRESSED NO LONGER WILL BE FOLLOWED.

CONTRARY TO THE SITUATION INVOLVED IN THE CASE OF HARVEY S. HAISLIP V. UNITED STATES, 152 CT.CL. 339, THE RECORD IN THE PRESENT CASE HAS IN FACT BEEN CORRECTED, COLONEL FREDERICK'S RETIREMENT HAVING BEEN CHANGED FROM ONE PREDICATED ON YEARS OF SERVICE AND AGE UNDER TITLE III OF THE 1948 ACT, TO A RETIREMENT BY REASON OF PHYSICAL DISABILITY UNDER THE 1939 ACT.

ACCORDINGLY, THE VOUCHER ACCOMPANYING YOUR LETTER IS RETURNED, AND MAY BE PAID, IF OTHERWISE CORRECT.