B-141392, JAN. 14, 1960

B-141392, JAN. 14, 1960

TO LIEUTENANT RABS Z. TOBIASON, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1959, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF MAY 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD JANUARY 14, 1946, TO MARCH 11, 1952, AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, BELIEVED TO BE DUE YOU AS THE RESULT OF THE CORRECTION OF YOUR MILITARY RECORD.

THE RECORD INDICATES THAT YOU WERE INFORMED BY DEPARTMENT OF THE ARMY LETTER OF FEBRUARY 28, 1955, THAT YOUR MILITARY RECORD HAD BEEN CORRECTED APRIL 13, 1954, PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, TO SHOW THAT YOU WERE RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON JANUARY 13, 1946, AND THAT YOU HAD BEEN CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, AS AMENDED (10 U.S.C. 456, 1946 ED.), IN THE GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES. PAYMENT WAS TO COMMENCE NO LATER THAN APRIL 1, 1952, THE FIRST DAY OF THE MONTH IN WHICH YOUR APPLICATION FOR CORRECTION OF RECORDS WAS RECEIVED BY THE DEPARTMENT OF THE ARMY. PAYMENT WAS MADE ON THAT BASIS ON A VOUCHER DATED MARCH 25, 1955, FOR THE PERIOD APRIL 1, 1952, TO JUNE 30, 1954. IS NOT KNOWN WHY PAYMENT WAS NOT MADE FOR THE PERIOD PRIOR TO APRIL 1, 1952, SINCE WE HAD HELD IN PUBLISHED DECISIONS IN SIMILAR CASES (33 COMP. GEN. 1, JULY 1, 1953, AND 34 COMP. GEN. 7, JULY 7, 1954), THAT PAYMENT WAS AUTHORIZED RETROACTIVE TO THE DATE OF RELEASE FROM ACTIVE DUTY. THE VOUCHER CONTAINS A CERTIFICATE SIGNED BY YOU ON MARCH 16, 1955, STATING THAT YOU AGREE THAT ACCEPTANCE OF THE SETTLEMENT SHALL CONSTITUTE A COMPLETE RELEASE BY YOU OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF YOUR MILITARY RECORDS.

SECTION 207 (C) OF THE CITED LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C) PROVIDES WITH RESPECT TO CORRECTION OF MILITARY RECORDS AUTHORIZED BY THAT ACT:

"THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.'

THE LETTER OF FEBRUARY 28, 1955, ADVISED YOU THAT IF THE AMOUNT SHOWN IN THE ENCLOSED CLAIMS CERTIFICATE WAS AGREEABLE TO YOU, YOU SHOULD SIGN THE CERTIFICATE AND THAT YOUR SIGNATURE ON THE CERTIFICATE WOULD INDICATE YOUR WILLINGNESS TO ACCEPT THAT AMOUNT AS A FULL, FINAL AND COMPLETE SETTLEMENT AND RELEASE OF ANY CLAIM YOU MAY HAVE AGAINST THE UNITED STATES ON ACCOUNT OF THE ACTION CORRECTING YOUR MILITARY RECORDS. THE CERTIFICATE WAS CLEAR AND DEFINITE. YOU SIGNED THIS CERTIFICATE AND ACCEPTED THE PAYMENT INDICATED ON THE VOUCHER IN FULL SETTLEMENT OF YOUR CLAIM. ACCORDINGLY, THIS OFFICE IS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM FOR ADDITIONAL RETROACTIVE RETIRED PAY BASED ON THE CORRECTION OF YOUR RECORDS UNDER THAT STATUTE.

WITH RESPECT TO THE KIMBROUGH CASE TO WHICH YOU REFER, B-117367, JULY 7, 1954, 34 COMP. GEN. 7, YOUR ATTENTION IS INVITED TO THE FACT THAT CAPTAIN KIMBROUGH, UNLIKE YOU, DID NOT ACCEPT THE OFFER MADE BY THE DEPARTMENT OF THE ARMY. IN A LETTER DATED JULY 15, 1953, HE INFORMED THAT DEPARTMENT THAT HE DID NOT WISH TO TAKE ANY ACTION WHICH MIGHT PREJUDICE HIS RIGHT TO THE FULL AMOUNT OF RETROACTIVE RETIRED PAY TO WHICH HE BELIEVED HE WAS ENTITLED, AND THAT HE DESIRED TO DEFER ACCEPTING THE PROFFERED PAYMENT PENDING SETTLEMENT BY THIS OFFICE OF HIS CLAIM FOR SUCH RETIRED PAY. WHILE SUCH CLAIM WAS ORIGINALLY DISALLOWED, THAT ACTION WAS REVERSED IN OUR DECISION OF NOVEMBER 4, 1953, B-117367, AND RETIRED PAY WAS ALLOWED RETROACTIVE TO THE DATE HIS CORRECTED RECORD SHOWED HE WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY.