B-139145, OCT. 9, 1962

B-139145: Oct 9, 1962

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MARTIN EMILIUS CARLSON: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 6. BROOKS WAS OTHERWISE QUALIFIED FOR RETIREMENT UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29. CONSEQUENTLY HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON SEPTEMBER 30. BY ORDER OF THE SECRETARY OF THE ARMY HIS ORIGINAL RETIREMENT ORDERS WERE AMENDED TO SHOW HIM PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON JUNE 29. THE CLAIMANT WAS ALLOWED $289.74 REPRESENTING RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THE PERIOD FROM JUNE 30. WAS DISALLOWED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9. BROOKS REQUESTED RECONSIDERATION OF HIS CLAIM ON THE GROUND THAT HE HAD ORIGINALLY FILED APPLICATION FOR RETIRED PAY IN 1949 AND SINCE HE HAD FILED CLAIM WITHIN 10 YEARS HIS CLAIM WAS NOT BARRED.

B-139145, OCT. 9, 1962

TO MR. MARTIN EMILIUS CARLSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 6, 1962, REQUESTING RECONSIDERATION OF THE CLAIM OF DR. ERNEST R. BROOKS, LIEUTENANT COLONEL, USAR, RETIRED, FOR RETIRED PAY FROM JUNE 29, 1948, THROUGH JUNE 29, 1949, UNDER THE PROVISIONS OF CHAPTER 67 OF TITLE 10 OF THE UNITED STATES CODE, FORMERLY TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087.

BY LETTER DATED JUNE 10, 1959, RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 30, 1959, DR. BROOKS SUBMITTED CLAIM FOR RETIRED PAY FROM JULY 1, 1948, TO OCTOBER 1, 1949, BASED ON THE HOLDING IN THE CASE OF SEAGRAVE V. UNITED STATES, 131 CT.CL. 790. ALTHOUGH DR. BROOKS WAS OTHERWISE QUALIFIED FOR RETIREMENT UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, FROM THE DATE OF THE ACT, HE DID NOT APPLY FOR RETIRED PAY UNTIL SEPTEMBER 1949. CONSEQUENTLY HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON SEPTEMBER 30, 1949, AND RECEIVED RETIRED PAY FROM OCTOBER 1, 1949. SUBSEQUENT TO THE CLAIM PRESENTED BY DR. BROOKS ON JUNE 10, 1959, BY ORDER OF THE SECRETARY OF THE ARMY HIS ORIGINAL RETIREMENT ORDERS WERE AMENDED TO SHOW HIM PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL ON JUNE 29, 1948, WITH ENTITLEMENT TO RETIRED PAY FROM THAT DATE.

BY SETTLEMENT DATED NOVEMBER 6, 1959, THE CLAIMANT WAS ALLOWED $289.74 REPRESENTING RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THE PERIOD FROM JUNE 30, THROUGH SEPTEMBER 30, 1949. THAT PORTION OF THE CLAIM FOR THE PERIOD PRIOR TO JUNE 30, 1949, WAS DISALLOWED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH BARS FROM CONSIDERATION ALL CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

BY LETTER DATED DECEMBER 10, 1959, DR. BROOKS REQUESTED RECONSIDERATION OF HIS CLAIM ON THE GROUND THAT HE HAD ORIGINALLY FILED APPLICATION FOR RETIRED PAY IN 1949 AND SINCE HE HAD FILED CLAIM WITHIN 10 YEARS HIS CLAIM WAS NOT BARRED. ON JANUARY 26, 1960, OUR CLAIMS DIVISION ADVISED HIM THAT THE FILING OF A CLAIM WITH ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT DOES NOT OPERATE TO TAKE THE CASE OUT OF THE BARRING PROVISIONS OF THE STATUTE AND THIS OFFICE HAS NO AUTHORITY TO WAIVE THE PROVISIONS OF THE STATUTE. THE CLAIMS DIVISION FURTHER CALLED ATTENTION TO THE ANSWER TO QUESTION 10 IN OUR DECISION B-113387, DATED AUGUST 25, 1958, 38 COMP. GEN. 146, 153, TO THE EFFECT THAT WE CONSIDER THAT THE ACCRUAL DATE OF CLAIMS FOR TITLE III RETIRED PAY OF PERSONS QUALIFYING THEREFORE UP TO AND INCLUDING JANUARY 1, 1949, IS JANUARY 1, 1949, AND THAT JANUARY 1, 1959, IS THE LATEST DATE FOR THE FILING OF SUCH A CLAIM WITH US TO AVOID A BARRING OF SOME PART THEREOF BY THE ACT OF OCTOBER 9, 1940.

YOUR PRESENT REQUEST FOR REVIEW IS BASED ON THE PREMISE THAT THERE HAS BEEN A CORRECTION OF THE RECORD IN THE CASE OF DR. BROOKS AND BASED ON THE AMENDED RETIREMENT ORDERS DATED AUGUST 3, 1959, HE IS ENTITLED TO RETIRED PAY FROM JUNE 29, 1948, UNDER THE RULING IN OUR DECISION, B-135771, OF JULY 14, 1959, 39 COMP. GEN. 20, THAT "THE 10 YEAR LIMITATION PERIOD OF THE ACT OF OCTOBER 9, 1940, IS CONSIDERED AS COMMENCING TO RUN FROM THE DATE OF CORRECTION OF THE MEMBER'S RECORDS AS AUTHORIZED BY 10 U.S.C. 6332.'

THE DECISION RELIED ON BY YOU HAS REFERENCE TO THE AUTHORITY GRANTED THE SECRETARY OF THE NAVY TO CORRECT ANY ERROR OR OMISSION IN HIS DETERMINATION AS TO A MEMBER'S GRADE OR YEARS OF CREDITABLE SERVICE FOR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE. WE KNOW OF NO PROVISION OF LAW WHEREBY SIMILAR AUTHORITY HAS BEEN GRANTED TO THE SECRETARY OF THE ARMY. THUS THE AMENDMENT OF THE RETIREMENT ORDERS IN DR. BROOKS' CASE CANNOT BE SAID TO BE ANALOGOUS TO THE CORRECTIONS REFERRED TO IN 39 COMP. GEN. 20 AND THAT DECISION HAS NO BEARING ON HIS CASE.

TRANSFER TO THE RETIRED LIST AND GRANTING OF RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 OF THE U.S.C. DO NOT CONSTITUTE AN ORDINARY RETIREMENT SUCH AS THAT AUTHORIZED BY OTHER PROVISIONS OF LAW WHICH CONTEMPLATE A TRANSFER FROM AN ACTIVE DUTY STATUS TO A RETIRED STATUS. FORMER MEMBERS, AS WELL AS MEMBERS, ARE ELIGIBLE TO RECEIVE RETIRED PAY UNDER CHAPTER 67 PROVIDED THE AGE AND SERVICE REQUIREMENTS SET FORTH IN 10 U.S.C. 1331 ARE MET AND APPLICATION FOR THE RETIRED PAY IS MADE TO THE SECRETARY OF THE MILITARY DEPARTMENT HAVING JURISDICTION AT THE TIME OF APPLICATION OVER THE ARMED FORCE IN WHICH THE APPLICANT IS SERVING OR LAST SERVED. DR. BROOKS ON JUNE 29, 1948, WAS QUALIFIED FOR CHAPTER 67 RETIRED PAY UNDER THE ACT OF JUNE 29, 1948, EFFECTIVE JANUARY 1, 1949, AND HIS RIGHT TO RETIRED PAY ACCRUED ON JANUARY 1, 1949. 38 COMP. GEN. 146, 153. HE WAS NOT PAID RETIRED PAY FOR THE PERIOD JUNE 29, 1948, TO SEPTEMBER 30, 1949, AND HIS CLAIM FOR SUCH UNPAID RETIRED PAY WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 30, 1959. UNDER THE ACT OF OCTOBER 9, 1940, THIS OFFICE IS PROHIBITED FROM CONSIDERING ANY PART OF HIS CLAIM FOR RETIRED PAY ACCRUING PRIOR TO JUNE 30, 1949. ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN IN BARRING HIS CLAIM FOR RETIRED PAY FROM JUNE 29, 1948, THROUGH JUNE 29, 1949, WAS CORRECT AND MUST BE ..END :