B-141045, MAR. 31, 1960

B-141045: Mar 31, 1960

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SMITH: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27. THAT YOU WERE ORDERED TO ACTIVE DUTY ON MARCH 17. WHEN YOU WERE RELEASED TO INACTIVE DUTY IN THE GRADE OF LIEUTENANT. THAT YOU WERE IN A TERMINAL LEAVE STATUS FROM SEPTEMBER 7. YOU WERE APPOINTED TO THE RANK OF LIEUTENANT COMMANDER. THAT THE APPOINTMENT WAS NEVER CONSUMMATED SINCE YOU WERE ON TERMINAL LEAVE AND THE AFFIRMATIVE DETERMINATIONS REGARDING PROFESSIONAL QUALIFICATION AND PHYSICAL CONDITION WERE NOT MADE. THAT YOU WERE UNAWARE OF THE PROMOTION UNTIL AFTER YOUR RELEASE FROM ACTIVE DUTY. YOU WERE ALLOWED AND PAID MUSTERING-OUT PAY IN THE AMOUNT OF $300. IT WAS FURTHER FOUND THAT NAVPERS 15793 (PERMANENT APPOINTMENTS AND RANK STATUS OF OFFICERS OF THE U.S.

B-141045, MAR. 31, 1960

TO MR. LAWRENCE S. SMITH:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1960, RELATIVE TO THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $232.15, REPRESENTING THE DIFFERENCE BETWEEN $300 PAID TO YOU AS MUSTERING-OUT PAY ON RELEASE FROM ACTIVE DUTY OCTOBER 25, 1945, AND $67.85 DUE AS ADDITIONAL PAY UPON THE CORRECTION OF YOUR NAVAL RECORD TO SHOW YOUR PROMOTION TO THE RANK OF LIEUTENANT COMMANDER ON OCTOBER 3, 1945.

IT APPEARS THAT THE BOARD FOR CORRECTION OF NAVAL RECORDS IN ITS ACTION OF AUGUST 2, 1955, FOUND, AS A MATTER OF RECORD, THAT YOU WERE ORDERED TO ACTIVE DUTY ON MARCH 17, 1941, AND SERVED ON ACTIVE DUTY UNTIL OCTOBER 25, 1945, WHEN YOU WERE RELEASED TO INACTIVE DUTY IN THE GRADE OF LIEUTENANT, UNITED STATES NAVAL RESERVE, AND THAT YOU WERE IN A TERMINAL LEAVE STATUS FROM SEPTEMBER 7, 1945, TO THE DATE OF YOUR RELEASE. THE BOARD ALSO FOUND THAT ON OCTOBER 3, 1945, WHILE IN A TERMINAL LEAVE STATUS, YOU WERE APPOINTED TO THE RANK OF LIEUTENANT COMMANDER, FOR TEMPORARY SERVICE, WITH DATE OF RANK OCTOBER 3, 1945; THAT THE PROMOTIONAL AUTHORITY (ALNAV 317- 45), ALTHOUGH NOT REQUIRING FORMAL ACCEPTANCE AND OATH, DID REQUIRE CERTAIN AFFIRMATIVE DETERMINATIONS AS WELL AS AN EXPRESSION BY YOU THAT YOU DID NOT DECLINE THE APPOINTMENT; THAT THE APPOINTMENT WAS NEVER CONSUMMATED SINCE YOU WERE ON TERMINAL LEAVE AND THE AFFIRMATIVE DETERMINATIONS REGARDING PROFESSIONAL QUALIFICATION AND PHYSICAL CONDITION WERE NOT MADE; AND THAT YOU WERE UNAWARE OF THE PROMOTION UNTIL AFTER YOUR RELEASE FROM ACTIVE DUTY. ON YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 25, 1945, AS A LIEUTENANT, YOU WERE ALLOWED AND PAID MUSTERING-OUT PAY IN THE AMOUNT OF $300. IT WAS FURTHER FOUND THAT NAVPERS 15793 (PERMANENT APPOINTMENTS AND RANK STATUS OF OFFICERS OF THE U.S. NAVAL RESERVE, DATED 1 JULY 1948) AUTHORIZED YOUR PERMANENT APPOINTMENT AS LIEUTENANT COMMANDER WITH A RELATIVE PRECEDENCE DATE OF OCTOBER 3, 1945; AND THAT YOUR ATTEMPTED ACCEPTANCE OF THIS APPOINTMENT, IN FEBRUARY 1953, WAS HELD TO BE NULL AND VOID BY REASON OF THE FACT THAT YOU WERE, AT THE TIME, ON THE INACTIVE STATUS LIST OF THE NAVAL RESERVE AND THEREFORE INELIGIBLE TO ACCEPT SUCH APPOINTMENT. PARAGRAPHS (H) AND (I) OF THE BOARD'S FINDINGS ARE AS FOLLOWS:

"/H) THAT PETITIONER, IN PERSONAL APPEARANCE BEFORE THIS BOARD, ORALLY REQUESTED THAT HIS RECORD BE CORRECTED TO SHOW THAT HE WAS PROMOTED TO LIEUTENANT COMMANDER WITH DATE OF RANK 3 OCTOBER 1945; AND THAT IN ANSWER TO A QUESTION, BY THE CHAIRMAN OF THE BOARD, REGARDING HIS WILLINGNESS TO ACCEPT CHECK AGE OF THE MUSTERING OUT PAY WHICH HE RECEIVED AS LIEUTENANT (PROVIDED HIS REQUEST WERE GRANTED), PETITIONER INDICATED THAT HE WOULD ACCEPT WHATEVER CONSEQUENCE RESULTED.

"/I) THAT IN VIEW OF THE FOREGOING, THE BOARD FINDS THAT PETITIONER HAS SUFFERED AN INJUSTICE BECAUSE OF THE FAILURE OF NAVAL AUTHORITIES TO NOTIFY HIM OF HIS APPOINTMENT TO THE TEMPORARY GRADE OF LIEUTENANT COMMANDER, PURSUANT TO THE PROVISIONS OF ALNAV 317-45 OF 3 OCTOBER 1945, AND THE BOARD, THEREFORE, FINDS THAT HE WAS PROMOTED TO THE GRADE OF LIEUTENANT COMMANDER ON 3 OCTOBER 1945, FOR TEMPORARY SERVICE; THAT HE WAS QUALIFIED THEREFOR IN ALL RESPECTS; AND THAT HE DID NOT DECLINE SUCH APPOINTMENT.'

IN VIEW OF ITS FINDINGS, THE BOARD DECIDED THAT YOUR RECORD SHOULD BE CORRECTED AND RECOMMENDED THAT THE SECRETARY OF THE NAVY DETERMINE THAT THE HIGHEST GRADE AND RANK IN WHICH YOU SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT BE THAT OF LIEUTENANT COMMANDER; THAT UPON APPROVAL OF THIS DECISION AND RECOMMENDATION, THE CHIEF OF NAVAL PERSONNEL TAKE SUCH STEPS AS NECESSARY TO ISSUE A PERMANENT APPOINTMENT, WITH RANK FROM OCTOBER 3, 1945, PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED (55 STAT. 603; 64 STAT. 187; 34 U.S.C. (1952 ED.) 350, ET SEQ.); AND THAT THE DEPARTMENT OF THE NAVY PAY TO YOU, OR OTHER PROPER PARTY OR PARTIES, ALL MONEYS FOUND TO BE DUE AS RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.

IT FURTHER APPEARS THAT THE DEPARTMENT OF THE NAVY ADVISED YOU THAT THE CORRECTION OF YOUR NAVAL RECORD TO SHOW PROMOTION TO THE RANK OF LIEUTENANT COMMANDER AS OF OCTOBER 3, 1945, ENTITLED YOU TO THE DIFFERENCE IN PAY AND ALLOWANCES FROM THAT DATE TO OCTOBER 25, 1945, BETWEEN THOSE RECEIVED AS A LIEUTENANT AND THE AMOUNT DUE AS A LIEUTENANT COMMANDER, BUT THAT THE PROMOTION PRECLUDED YOUR ENTITLEMENT TO MUSTERING-OUT PAY, RESULTING IN A NET INDEBTEDNESS TO THE UNITED STATES OF $232.15.

AFTER A CONSIDERABLE INTERCHANGE OF CORRESPONDENCE BETWEEN YOU AND THE U.S. NAVY FINANCE CENTER, THE MATTER OF THE INDEBTEDNESS WAS FORWARDED TO OUR OFFICE, AT YOUR REQUEST, FOR APPROPRIATE ACTION. SEVERAL DEMANDS HAVE BEEN MADE UPON YOU BY OUR CLAIMS DIVISION FOR PAYMENT OF THE INDEBTEDNESS. IN YOUR PRESENT LETTER YOU REQUEST THAT THE MATTER BE HELD IN ABEYANCE SINCE YOU SAY THAT YOU CONTEMPLATE REQUESTING THE NAVY BOARD FOR CORRECTION OF RECORDS TO SUPPLEMENT ITS PRIOR ACTION, BASING YOUR REQUEST ON THE CASE OF CADDINGTON V. UNITED STATES, C.CLS.NO. 408-57, DECIDED DECEMBER 2, 1959. YOU STATE THAT YOUR ACTION IS DEPENDENT UPON THE COURT'S RULING ON A MOTION FOR A NEW TRIAL FILED IN THAT CASE.

WE HAVE EXAMINED THE DECISION OF DECEMBER 2, 1959, OF THE COURT OF CLAIMS IN THE CADDINGTON CASE, AND WE FAIL TO SEE THE APPLICABILITY OF THE DECISION TO THE PRESENT MATTER, NOR CAN WE PERCEIVE HOW A RULING ON THE MOTION FOR A NEW TRIAL CAN AFFECT OR DETERMINE THE MATTER OF YOUR INDEBTEDNESS. THE CADDINGTON CASE IS CONCERNED WITH THE QUESTION OF WHETHER THE PLAINTIFF WAS PROMOTED FROM LIEUTENANT COLONEL TO COLONEL INCIDENT TO HIS RELIEF FROM ACTIVE DUTY, AND WHETHER HIS RETIRED PAY SHOULD BE COMPUTED ON THE HIGHER GRADE, NOTWITHSTANDING THE CORRECTION BOARD'S RECOMMENDATION THAT NO MONETARY BENEFITS RESULT. THE COURT HELD "THAT VIEWING THE RECORD AS A WHOLE THE PLAINTIFF SHOULD BE TREATED AS HAVING, IN EFFECT, RECEIVED AN ACTUAL PROMOTION TO COLONEL BEFORE HIS RETIREMENT.' THE COURT, HOWEVER, STATED THAT THE ENTITLEMENT TO THE RETIRED PAY OF THE HIGHER GRADE SHOULD BE CALCULATED FROM THE DATE OF PROMOTION FIXED IN THE CORRECTION BOARD'S ACTION RATHER THAN FROM THE EARLIER DATE OF RETIREMENT. IN THIS LATTER DETERMINATION THE COURT HELD, AS WE HAVE HELD ON A NUMBER OF OCCASIONS, THAT WHILE THE CORRECTION BOARD MAY CORRECT THE RECORD, THE DETERMINATION OF ENTITLEMENT OR NONENTITLEMENT TO PAY AND ALLOWANCES AS A RESULT OF THE CORRECTION IS BEYOND ITS PURVIEW. SEE 34 COMP. GEN. 7.

OF MORE PERTINENCY TO THE PRESENT MATTER, YOUR ATTENTION IS INVITED TO THE CASE OF GEORGE H. SEASTROM V. UNITED STATES, C.CLS.NO. 220-57, DECIDED NOVEMBER 4, 1959. IN THAT CASE, INVOLVING A CORRECTED NAVAL RECORD, THE COURT HELD, INSOFAR AS IS HERE PERTINENT, THAT:

"IN THIS RESPECT IT IS TRUE THAT AT THE TIME PLAINTIFF WAS ENGAGED IN THE "SELLING" ACTIVITIES, HERETOFORE NOTED, HE MAY NOT HAVE BEEN A RETIRED OFFICER. HOWEVER, IT WAS BY PLAINTIFF'S OWN APPLICATION FOR THE CORRECTION OF HIS RECORDS THAT HE BECAME ENTITLED RETROACTIVELY TO THE BENEFITS OF A RETIRED STATUS. WHEN PLAINTIFF'S RECORDS WERE CORRECTED, HE BECAME ENTITLED AS A RETIRED OFFICER ONLY TO RETIRED PAY FOR PERIODS FROM WHICH HE WAS ELIGIBLE UNDER THE LAW. THE STATUTE HERE INVOLVED PROHIBITED PAYMENT OF RETIRED PAY TO A RETIRED OFFICER WHO WAS ENGAGED IN SALES ACTIVITIES. * * *

"IN SUMMARY, IT IS THE CONCLUSION OF THE COURT THAT PLAINTIFF IS A RETIRED OFFICER WHO ENGAGED IN A FORM OF SELLING TO THE NAVY. HIS RETIRED PAY WAS SUBJECT TO ALL STATUTORY LIMITATIONS ON PAYMENT AND HE IS NOT ENTITLED TO RETAIN THE RETIRED PAY PAID HIM FOR THE PERIOD FROM FEBRUARY 1955 THROUGH AUGUST 1956, WHEN HE WAS ENGAGED IN A FORM OF SELLING TO THE NAVY.'

SHOULD YOUR RECORD BE FURTHER CORRECTED, THE MATTER CAN THEN BE RECONSIDERED ON THE BASIS OF SUCH CORRECTION. HOWEVER, THE FACT THAT YOU CONTEMPLATE REQUESTING A FURTHER CORRECTION--- THE OUTCOME OF WHICH IS PURELY CONJECTURAL--- CONSTITUTES NO PROPER BASIS FOR DELAYING COLLECTION ACTION. ACCORDINGLY, IN VIEW OF THE CIRCUMSTANCES, AND SINCE YOU HAVE NOT COMPLIED WITH REPEATED DEMANDS TO LIQUIDATE THE INDEBTEDNESS, THE MATTER IS BEING REPORTED TO THE DEPARTMENT OF JUSTICE FOR THEIR CONSIDERATION AND APPROPRIATE ACTION.