B-139166, NOVEMBER 3, 1961, 41 COMP. GEN. 283

B-139166: Nov 3, 1961

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IN THE ABSENCE OF A COURT DECISION HOLDING THAT THE ACTION OF THE SECRETARY OF THE NAVY WAS ARBITRARY OR CAPRICIOUS. DISABILITY RETIRED PAY AFTER THE PERIOD OF THE JUDGMENT IS NOT AUTHORIZED. 1961: REFERENCE IS MADE TO YOUR REQUEST. IS ENTITLED TO CONTINUING PAYMENTS OF RETIRED PAY FROM NOVEMBER 1. THE DAY FOLLOWING THE DATE THROUGH WHICH JUDGMENT WAS ENTERED ON MARCH 24. THURSTON) WAS RELEASED FROM ACTIVE DUTY ON JULY 12. SHE WAS EXAMINED BY A RETIREMENT ADVISORY BOARD AND A PHYSICAL EVALUATION BOARD. THURSTON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVAL RESERVE ON MAY 12. AS A RESULT OF A FINDING IN MARCH 1952 BY A PHYSICAL EVALUATION BOARD THAT SHE WAS THEN UNFIT TO PERFORM THE DUTIES OF HER RANK.

B-139166, NOVEMBER 3, 1961, 41 COMP. GEN. 283

COURTS - JUDGMENTS, DECREES, ETC. - RES JUDICATA - JUDGMENT BASED ON STIPULATION A JUDGMENT BY STIPULATION AWARDING DISABILITY RETIRED PAY TO A NAVAL RESERVE MEMBER WHO NEVER HAD THE NAVAL REVIEW BOARD'S RECOMMENDED FINDING OF PHYSICAL DISABILITY AT THE TIME OF RELEASE FROM ACTIVE DUTY APPROVED BY THE SECRETARY OF THE NAVY AS REQUIRED UNDER SECTION 1453, REVISED STATUTES, 34 U.S.C. 417 (1946 USED.), FOR ENTITLEMENT TO DISABILITY RETIRED PAY DOES NOT MEET THE REQUIREMENTS OF LAW FOR QUALIFICATION OF THE MEMBER FOR SUBSEQUENT PAYMENTS OF DISABILITY RETIRED PAY AFTER THE PERIOD OF THE JUDGMENT AND, IN THE ABSENCE OF A COURT DECISION HOLDING THAT THE ACTION OF THE SECRETARY OF THE NAVY WAS ARBITRARY OR CAPRICIOUS, OR OF A CORRECTION OF RECORDS, DISABILITY RETIRED PAY AFTER THE PERIOD OF THE JUDGMENT IS NOT AUTHORIZED.

TO LIEUTENANT COMMANDER E. L. TRAUX, DEPARTMENT OF THE NAVY, NOVEMBER 3, 1961:

REFERENCE IS MADE TO YOUR REQUEST, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-611, FOR AN ADVANCE DECISION AS TO WHETHER OR NOT VIRGINIA SWEENEY THURSTON, EX- LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE, IS ENTITLED TO CONTINUING PAYMENTS OF RETIRED PAY FROM NOVEMBER 1, 1960, THE DAY FOLLOWING THE DATE THROUGH WHICH JUDGMENT WAS ENTERED ON MARCH 24, 1961, IN THE CASE OF THURSTON V. UNITED STATES, CT.1CL. NO. 133-59, BASED ON A STIPULATION BETWEEN THE PARTIES.

THE RECORD SHOWS THAT VIRGINIA SWEENEY (NOW MRS. THURSTON) WAS RELEASED FROM ACTIVE DUTY ON JULY 12, 1946, APPARENTLY UNDER THE GENERAL DEMOBILIZATION PROGRAM, HAVING BEEN FOUND PHYSICALLY QUALIFIED FOR RELEASE. IN 1947 AND 1950, SHE WAS EXAMINED BY A RETIREMENT ADVISORY BOARD AND A PHYSICAL EVALUATION BOARD, RESPECTIVELY, AND AGAIN FOUND FIT TO PERFORM THE DUTIES OF HER RANK AS OF THE TIME OF HER DETACHMENT IN 1946. MRS. THURSTON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVAL RESERVE ON MAY 12, 1952, AS A RESULT OF A FINDING IN MARCH 1952 BY A PHYSICAL EVALUATION BOARD THAT SHE WAS THEN UNFIT TO PERFORM THE DUTIES OF HER RANK, IN ACCORDANCE WITH SECTION 308 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 855G (1946 USED.).

BY PETITION NO. 133-59, MRS. THURSTON SOUGHT RECOVERY OF DISABILITY RETIRED PAY TO WHICH SHE BELIEVED SHE WAS ENTITLED SINCE HER RELEASE FROM ACTIVE DUTY. THIS CASE WAS NEVER CONSIDERED BY THE COURT BUT A JUDGMENT WAS ENTERED IN HER FAVOR ON MARCH 24, 1961, BASED SOLELY ON A STIPULATION OF THE PARTIES IN WHICH IT WAS STATED THAT THE ATTORNEY GENERAL, BY HIS AUTHORIZED DELEGATE, CONSENTED TO THE ENTRY OF JUDGMENT IN FAVOR OF THE PLAINTIFF IN THE SUM OF $28,988.21 IN FULL SETTLEMENT OF ALL CLAIMS SET FORTH IN THE PETITION AND THAT THE DEFENDANT CONSENTED TO THE ENTRY OF JUDGMENT IN THAT AMOUNT.

IN THE DECISION CITED BY YOU, B-126399, DECEMBER 20, 1960, WE STATED THAT THE DOCTRINE OF ESTOPPEL BY JUDGMENT DOES NOT APPLY SO AS TO FIX AN INDIVIDUAL'S RIGHTS AFTER THE PERIOD COVERED BY THE JUDGMENT WHERE THE JUDGMENT WAS BASED ON A STIPULATION OF THE PARTIES RATHER THAN ON A JUDICIAL DETERMINATION OF THE ISSUES INVOLVED. THEREFORE, MRS. THURSTON'S RIGHT, IF ANY, TO RECEIVE RETIRED PAY AFTER OCTOBER 31, 1960, MUST BE DETERMINED ON THE BASIS OF THE FACTS IN HER CASE AND APPLICATION OF THE LAWS IN EFFECT AT THE TIME OF HER RELEASE.

IN THE PETITION, SECTION 1453, REVISED STATUTES, WAS CITED AS THE AUTHORITY FOR PAYMENT OF THE RETIRED PAY CLAIMED. THE PROVISIONS OF SECTION 1453, REVISED STATUTES, 33 U.S.C. 417 (1946 USED.), ARE AS FOLLOWS:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY.

SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, 34 U.S.C. 855C-1 (1946 USED.), MADE THE ABOVE PROVISIONS APPLICABLE TO RESERVE OFFICERS WHO SUFFERED DISABILITY IN LINE OF DUTY WHILE SERVING ON EXTENDED ACTIVE DUTY. THESE PROVISIONS WERE MODIFIED BY SECTION 1 (B) OF THE ACT OF JUNE 17, 1948, 62 STAT. 477, 34 U.S.C. 417 (1952 USED.), TO AUTHORIZE APPROVAL BY THE SECRETARY OF THE NAVY RATHER THAN BY THE PRESIDENT. ALTHOUGH A NAVAL RETIRING REVIEW BOARD IN 1954 RECOMMENDED A FINDING OF PHYSICAL DISABILITY AT THE TIME OF MRS. THURSTON'S RELEASE IN 1946, SUCH RECOMMENDED FINDING WAS NOT APPROVED. SUBSEQUENTLY, MRS. THURSTON PETITIONED THE BOARD FOR CORRECTION OF NAVAL RECORDS FOR A CHANGE IN HER RECORDS TO SHOW THAT SHE HAD BEEN RETIRED FOR PHYSICAL DISABILITY IN 1946 RATHER THAN RELEASED TO INACTIVE DUTY. THE DENIAL OF THIS PETITION WAS APPROVED BY THE SECRETARY OF THE NAVY ON MAY 7, 1955.

THE COURT OF CLAIMS HAS RULED THAT IT DOES NOT HAVE THE AUTHORITY TO SAY WHO IS FIT OR UNFIT FOR MILITARY SERVICE AND IT HAS AUTHORIZED PAYMENT OF DISABILITY RETIRED PAY ONLY IN THOSE CASES WHERE, ON THE BASIS OF ALL THE EVIDENCE, IT HAS RULED THAT THE ACTION TAKEN BY A CORRECTION BOARD OR THE SECRETARY OF A MILITARY DEPARTMENT WAS ARBITRARY AND CAPRICIOUS. SEE FURLONG V. UNITED STATES, CT.1CL. NO. 324-54, DECIDED MAY 3, 1961.

THE RECORD BEFORE US INCLUDES NO INDICATION THAT THERE HAS EVER BEEN ANY APPROVAL OF MRS. THURSTON'S RETIREMENT BY THE SECRETARY OF THE NAVY AND IN THE ABSENCE OF SUCH APPROVAL THERE IS NO AUTHORITY FOR PAYMENT TO HER OF DISABILITY RETIRED PAY FOR ANY PERIOD AFTER OCTOBER 31, 1960. THE STIPULATION BY THE ATTORNEY GENERAL OR HIS AUTHORIZED DELEGATE THAT THE PLAINTIFF IN THE CASE OF THURSTON V. UNITED STATES, CT.1CL. NO. 133-59, WAS ENTITLED TO RECOVER THE SUM OF $28,988.21 AS DISABILITY RETIRED PAY FOR THE PERIOD JULY 13, 1946, TO OCTOBER 31, 1960, DOES NOT MEET THE REQUIREMENTS OF THE LAW FOR QUALIFICATION FOR SUBSEQUENT PAYMENTS OF DISABILITY RETIRED PAY. ONLY THE PRESIDENT, OR THE SECRETARY OF THE NAVY ON OR AFTER JUNE 17, 1948, HAD AUTHORITY TO APPROVE A FINDING OF DISABILITY INCURRED UNDER CONDITIONS WHICH WOULD ENTITLE THE FORMER OFFICER TO PAYMENT OF RETIRED PAY. IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION AFFIRMATIVELY HOLDING THAT THE ACTION TAKEN BY THE SECRETARY OF THE NAVY IN THIS CASE WAS ARBITRARY OR CAPRICIOUS OR A PROPER CORRECTION OF MRS. THURSTON'S RECORDS BY THE BOARD FOR THE CORRECTION OF NAVAL RECORDS, PAYMENT OF RETIRED PAY TO HER FOR ANY PERIOD AFTER THAT COVERED BY THE JUDGMENT IS NOT AUTHORIZED.