B-130796, AUG. 29, 1966

B-130796, AUG. 29, 1966

TO EMERY, SELLS AND WOOD, ATTORNEYS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1966, WRITTEN ON BEHALF OF COLONEL RICHARD H. BRIDGMAN, U.S. ARMY, RETIRED, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JUNE 6, 1966, WHICH DISALLOWED COLONEL BRIDGMAN'S CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 9, 1946, TO SEPTEMBER 30, 1949, FOR THE REASONS THERE STATED.

IT APPEARS FROM THE RECORDS BEFORE US THAT COLONEL BRIDGMAN WAS ORIGINALLY RETIRED AS AN OFFICER OF THE REGULAR ARMY ON FEBRUARY 1, 1933, BY REASON OF DISABILITY IN THE GRADE OF FIRST LIEUTENANT UNDER AUTHORITY OF SECTION 1251, REVISED STATUTES, 10 U.S.C. 933 (1946 ED.), AND THE ACT OF APRIL 23, 1930, CH. 209, 46 STAT. 253. HE WAS RECALLED TO ACTIVE DUTY DURING WORLD WAR II AND SERVED ON ACTIVE DUTY FROM SEPTEMBER 1, 1940, TO OCTOBER 8, 1946, AT WHICH TIME HE WAS RECEIVING THE PAY OF A COLONEL WITH OVER 24 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES, BUT HE HAD COMPLETED ONLY 17 YEARS, 4 MONTHS AND 27 DAYS OF ACTIVE SERVICE. HIS RETIRED PAY WAS COMPUTED AT 75 PERCENT OF THE PAY OF A FIRST LIEUTENANT WITH OVER 15 YEARS OF SERVICE FOR LONGEVITY PAY PURPOSES FROM OCTOBER 9, 1946, THROUGH JUNE 28, 1948, AND THAT OF A COLONEL WITH THE SAME LENGTH OF SERVICE BEGINNING JUNE 29, 1948, UNDER THE PROVISIONS OF SECTION 203 (A) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1085.

IN A PETITION FILED FEBRUARY 8, 1957, IN THE CASE OF RICHARD H. BRIDGMAN V. UNITED STATES, CT.CL. 31-57, THE OFFICER SOUGHT ADDITIONAL RETIRED PAY FOR THE PERIOD COMMENCING JANUARY 1, 1951, TO DATE OF JUDGMENT, REPRESENTING THE DIFFERENCE IN RETIRED PAY COMPUTED ON THE BASIS OF 75 PERCENTUM OF THE BASIC PAY OF A COLONEL WITH OVER 22 BUT NOT OVER 26 CUMULATIVE YEARS OF SERVICE AND THE RETIRED PAY WHICH HE HAD RECEIVED. ALSO, A CLAIM ON BEHALF OF THE OFFICER WAS RECEIVED HERE ON FEBRUARY 25, 1957, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO DECEMBER 31, 1950, BASED ON THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, AND THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF GORDON V. UNITED STATES, 134 CT.CL. 840 (1956), AND SIMILAR CASES. BY LETTER RECEIVED IN THIS OFFICE ON NOVEMBER 2, 1959, YOUR LAW FIRM, ON BEHALF OF COLONEL BRIDGMAN, REFERRED TO THE OFFICER'S PRIOR CLAIM RECEIVED HERE ON FEBRUARY 25, 1957, AND PRESENTED A CLAIM FOR ADDITIONAL RETIRED PAY COMMENCING FEBRUARY 1, 1947, TO DATE OF SETTLEMENT ON THE BASIS OF THE HOLDING OF THE COURT OF CLAIMS IN CARHART V. UNITED STATES, 146 CT.CL. 479 (1959), AND PHELAN V. UNITED STATES, 146 CT.CL. 218 (1959). THEREAFTER, COLONEL BRIDGMAN'S PETITION IN THE COURT OF CLAIMS WAS DISMISSED UPON THE OFFICER'S ACCEPTANCE OF A SETTLEMENT DATED JANUARY 5, 1960, BY THIS OFFICE OF HIS CLAIM IN THE AMOUNT OF $6,888.51 ALLOWING HIM THE DIFFERENCE BETWEEN DISABILITY RETIRED PAY COMPUTED AT 75 PERCENT OF THE PAY OF A COLONEL WITH OVER 16 YEARS' SERVICE AND THAT OF A COLONEL WITH OVER 22 YEARS' SERVICE, FOR THE PERIOD OCTOBER 1, 1949, TO NOVEMBER 30, 1959.

IN 1960, COLONEL BRIDGMAN APPLIED TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS AND ON NOVEMBER 4, 1960, THE ASSISTANT SECRETARY OF THE ARMY, UNDER PROVISIONS OF 10 U.S.C. 1552, DIRECTED THAT HIS MILITARY RECORDS BE CORRECTED TO SHOW "THAT HE WAS RE-RETIRED ON 8 OCTOBER 1946, AT WHICH TIME HE WAS CREDITED FOR LONGEVITY PAY PURPOSES, IN THE COMPUTATION UNDER THE PAY READJUSTMENT ACT OF 1942 OF HIS SERVICE FOR RETIRED PAY, WITH OVER TWENTY-FOUR YEARS' SERVICE.' IT WAS ALSO DIRECTED THAT THE DEPARTMENT OF THE ARMY PAY TO COLONEL BRIDGMAN ALL MONEY FOUND DUE AS A RESULT OF THAT CORRECTION OF HIS MILITARY RECORDS. ON THE BASIS OF THE CORRECTED RECORD AND ON BEHALF OF COLONEL BRIDGMAN, YOU FILED A CLAIM HERE BY LETTER DATED MAY 9, 1966, FOR ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 9, 1946, TO SEPTEMBER 30, 1949. IN THAT LETTER YOU SAID, AMONG OTHER THINGS, THAT COLONEL BRIDGMAN'S RIGHT TO INCREASED RETIRED PAY FLOWS "NOT FROM "FACTS SET OUT IN THE ORIGINAL RECORD," IN VIEW OF HIS LACK OF WORLD WAR I SERVICE, BUT FROM A CORRECTION OF HIS MILITARY RECORDS CHANGING THE FACTS AND CREATING NEW RIGHTS.' YOU CITED THE CASE OF OLESON V. UNITED STATES, CT.CL. NO. 376-64, DECIDED JULY 16, 1965, AS A BASIS FOR ALLOWANCE OF THE CLAIM.

COLONEL BRIDGMAN'S CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD OCTOBER 9, 1946, TO SEPTEMBER 30, 1949, WAS DISALLOWED BY OUR CLAIMS DIVISION SUBSTANTIALLY FOR THE REASON THAT THE CORRECTION BOARD'S ACTION DID NOT CHANGE THE FACTS ALREADY PRESENT IN HIS MILITARY RECORDS. THE SETTLEMENT ALSO POINTED OUT THAT SINCE COLONEL BRIDGMAN'S CLAIM FOR THE PERIOD PRIOR TO OCTOBER 1, 1949, WAS NOT RECEIVED IN THIS OFFICE UNTIL NOVEMBER 2, 1959, NO CONSIDERATION MAY BE GIVEN TO THAT PORTION OF HIS CLAIM IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH FOREVER BARS CONSIDERATION OF ANY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS IT IS RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED.

IN YOUR LETTER OF JUNE 8, 1966, YOU EXPRESSED THE VIEW THAT THERE WAS A CONSIDERABLE FACTUAL CHANGE IN COLONEL BRIDGMAN'S RECORDS. YOU SAY THAT THE SECRETARY'S DIRECTIVE DID "CHANGE THE FACTS" IN COLONEL BRIDGMAN'S MILITARY RECORD TO SHOW THAT HE WAS "AGAIN RETIRED" ON OCTOBER 8, 1946, WHILE SERVING ON ACTIVE DUTY IN THE GRADE OF COLONEL AND THAT AT THE TIME HE WAS RE-RETIRED, HE WAS CREDITED, IN THE COMPUTATION OF HIS YEARS OF SERVICE FOR RETIRED PAY PURPOSES, WITH OVER 24 YEARS FOR LONGEVITY PAY PURPOSES. YOU STATE THAT PRIOR TO THE SAID DIRECTIVE COLONEL BRIDGMAN'S RECORDS SHOWED ONLY THAT HE HAD BEEN RETIRED IN THE GRADE OF FIRST LIEUTENANT, AND THAT HE WAS ENTITLED, FOR THE PERIOD HERE IN QUESTION, ONLY TO THE RETIRED PAY OF SUCH OFFICER WITH OVER 15 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES. IN THE LIGHT OF THE SECRETARY'S DIRECTIVE, THE DECISIONS OF THE COURT OF CLAIMS IN THE OLESON AND CARHART CASES, AND THE PROVISIONS OF SECTION 1274, REVISED STATUTES, YOU EXPRESSED THE VIEW THAT THE OFFICER'S CLAIM IS FOR ALLOWANCE.

OFFICERS OF THE REGULAR ARMY WERE ENTITLED UNDER SECTIONS 1251 AND 1274 OF THE REVISED STATUTES TO BE RETIRED UPON THE ACTUAL RANK HELD AT THE TIME OF RETIREMENT AND TO RECEIVE 75 PERCENTUM OF THE PAY OF THAT RANK. THE SETTLEMENT OF JANUARY 5, 1960, IN FAVOR OF COLONEL BRIDGMAN, WAS BASED ON THE "RE-RETIREMENT" CONCEPT AS EXTENDED BY THE COURT OF CLAIMS IN THE ABOVE-MENTIONED CARHART, PHELAN AND OTHER SIMILAR CASES. THUS, IT WAS THEN RECOGNIZED THAT COLONEL BRIDGMAN WAS ,RE-RETIRED" ON OCTOBER 8, 1946, AND THAT HE WAS ENTITLED TO HAVE HIS DISABILITY RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT OF THE ACTIVE DUTY PAY OF A COLONEL WITH OVER 24 YEARS' SERVICE COMMENCING OCTOBER 9,1946. AS POINTED OUT ABOVE, HOWEVER, THE PROVISIONS OF THE BARRING ACT (31 U.S.C. 71A) PRECLUDED CONSIDERATION OF COLONEL BRIDGMAN'S CLAIM FOR THE PERIOD NOW INVOLVED.

UNDER THE CITED COURT OF CLAIMS DECISIONS THE OFFICER WAS ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY ON AND AFTER OCTOBER 9, 1946, COMPUTED ON THE BASIS INDICATED ABOVE. PART OF THE PRESENT CLAIM WOULD HAVE BEEN INCLUDED IN THE SETTLEMENT OF JANUARY 5, 1960, HAD IT NOT BEEN BARRED BY THE 1940 ACT. THE CORRECTION BOARD ACTION OF NOVEMBER 4, 1960, DID NOT "CHANGE THE FACTS" IN COLONEL BRIDGMAN'S MILITARY RECORD SO AS TO CREATE A NEW RIGHT TO DISABILITY RETIRED PAY. RATHER, THE CORRECTION BOARD'S ACTION IN THIS CASE APPEARS TO BE AN ATTEMPT TO AVOID THE OPERATION OF THE STATUTE OF LIMITATIONS BY MEANS OF A RECITAL OF FACTS ALREADY RECOGNIZED AS PART OF THE EXISTING RECORD. SEE 39 COMP. GEN. 198. SUCH ACTION PROPERLY MAY NOT BE CONSIDERED AS HAVING CREATED A NEW AND SEPARATE LEGAL RIGHT TO RECEIVE DISABILITY RETIREMENT PAY. SEE HAISLIP V. UNITED STATES, 152 CT.CL. 339 (1961).

THE DECISION OF THE COURT OF CLAIMS IN THE OLESON CASE CITED BY YOU, AFFORDS NO BASIS FOR CONCLUDING THAT THE FACTS IN COLONEL BRIDGMAN'S CASE AS SHOWN BY THE RECORD WERE MATERIALLY ALTERED BY THE ACTION OF THE CORRECTION BOARD SO AS TO CREATE A NEW RIGHT TO DISABILITY RETIREMENT PAY. OUR VIEWS ON THE OLESON CASE AND THE REASONS WE HAVE DECIDED NOT TO FOLLOW THAT CASE WERE FULLY SET FORTH IN OUR RECENT DECISION TO YOU IN THE CASE OF CAPTAIN JOHN M. BARNES, USAF, RETIRED, B-147096, JULY 12, 1966. SEE, ALSO, OUR DECISION OF MARCH 3, 1966, B-130839, 45 COMP. GEN. --. THAT CASE WOULD APPEAR TO HAVE NO BEARING HERE IN ANY EVENT SINCE THE PRESENT CLAIM HAS NOT BEEN PAID ADMINISTRATIVELY. THE ADMINISTRATIVE PAYMENT WAS THE FACT ON WHICH THE COURT MAINLY RELIED IN THE OLESON CASE.