B-141468, FEB. 24, 1960

B-141468, FEB. 24, 1960

TO MARVIN M. MITCHELSON, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1959, AND ENCLOSURES, REGARDING THE ACTION OF THE DEPARTMENT OF THE ARMY IN DENYING A CLAIM BY LIEUTENANT COLONEL ALBERT O. CHITTENDEN, USA, RETIRED, FOR REIMBURSEMENT OF THE COST OF PRIVATE MEDICAL TREATMENT OBTAINED BY HIM DURING 1956, 1957 AND 1958. THIS MATTER WAS THE SUBJECT OF OFFICE LETTER DATED OCTOBER 2, 1959, TO YOU.

COLONEL CHITTENDEN'S CLAIM FOR REIMBURSEMENT OF HIS MEDICAL EXPENSES IS BASED UPON A CORRECTION OF HIS MILITARY RECORDS, MADE UNDER THE PROVISIONS OF 10 U.S.C. 1552, SHOWING THAT INSTEAD OF HAVING BEEN DISCHARGED BY REASON OF PHYSICAL DISABILITY ON JUNE 3, 1954, HE CONTINUED IN ACTIVE SERVICE UNTIL MARCH 31, 1957, WHEN HE WAS RELIEVED FROM ACTIVE DUTY AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. THE CLAIM HAS BEEN DENIED BY THE ARMY APPARENTLY BECAUSE COLONEL CHITTENDEN ACCEPTED THE ADMINISTRATIVE SETTLEMENT MADE TO HIM FOR AMOUNTS FOUND TO BE DUE AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS.

IN YOUR LETTER OF DECEMBER 7, 1959, YOU SAY THAT, BASED ON THE CORRECTED RECORDS, THESE MEDICAL EXPENSES WERE INCURRED DURING A PERIOD WHILE COLONEL CHITTENDEN WAS IN ACTIVE SERVICE, AND YOU SUBMIT IN SUPPORT OF THE CLAIM EVIDENCE OF THE DATES ON WHICH THE EXPENSES WERE INCURRED AND PROOF OF THEIR PAYMENT. YOU SAY FURTHER THAT WHEN COLONEL CHITTENDEN ACCEPTED THE SETTLEMENT HE WAS UNDER THE IMPRESSION THAT SUCH ACCEPTANCE RELATED ONLY TO BACK PAY AND PENSION RIGHTS AND THAT HE HAD NO INTENTION OF WAIVING ANY RIGHTS ACCRUING TO HIM FOR REIMBURSEMENT OF MEDICAL EXPENSES. IN THIS CONNECTION YOU URGE THAT SINCE THE MEDICAL EXPENSE CLAIM COULD NOT ACCRUE UNTIL AFTER THE BOARD FOR CORRECTION OF MILITARY RECORDS HAD ACTED UPON COLONEL CHITTENDEN'S PETITION, IT SHOULD BE REGARDED AS AN ISSUE SEPARATE AND APART FROM THE ISSUES RELATING TO PAY AND PENSION WHICH WERE COVERED BY THE SETTLEMENT.

SECTION 1552 OF TITLE 10 OF THE U.S.C. PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

"/C) THE DEPARTMENT CONCERNED MAY PAY, FROM APPLICABLE CURRENT APPROPRIATIONS, A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS, OR FOR THE REPAYMENT OF A FINE OR FORFEITURE, IF, AS A RESULT OF CORRECTING A RECORD UNDER THIS SECTION, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS * * * SERVICE * * *. A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED. * * *"

UNDER SUCH PROVISIONS THE SECRETARY CONCERNED IS AUTHORIZED TO CORRECT THE RECORDS AND THE DEPARTMENT IS AUTHORIZED TO PAY SUCH AMOUNTS AS MAY BE FOUND DUE AS A MATTER OF LAW ON THE BASIS OF THE CORRECTED RECORD. THE SECRETARY'S AUTHORITY TO CORRECT A RECORD DOES NOT EXTEND TO DETERMINING THE AMOUNTS LAWFULLY DUE ON THE BASIS OF THE CORRECTED RECORD, SUCH AMOUNTS DEPENDING SOLELY UPON A PROPER APPLICATION OF THE STATUTES TO THE CORRECTED RECORD. NOTHING ACCRUES UNTIL AFTER THE RECORD HAS BEEN CORRECTED AND IT IS OUR VIEW THAT IF A CLAIMANT IS DISSATISFIED WITH A PROFFERED ADMINISTRATIVE SETTLEMENT OF THE AMOUNT DUE ON THE BASIS OF SUCH CORRECTION, HE MAY REJECT THE SETTLEMENT AND PRESENT A CLAIM TO OUR OFFICE FOR SETTLEMENT. UNDER THE EXPRESS PROVISIONS OF THE STATUTE, HOWEVER, THE ACCEPTANCE BY THE CLAIMANT OF AN ADMINISTRATIVE SETTLEMENT "FULLY SATISFIES" THE CLAIM UNLESS IT CLEARLY APPEARS THAT THE OFFICIALS WHO COMPUTED THE SETTLEMENT DID NOT INTEND IT TO COVER THE ENTIRE CLAIM. COMPARE 34 COMP. GEN. 456, COPY ENCLOSED, WHERE TWO CLAIM DOCUMENTS WERE FORWARDED TO THE CLAIMANT BY THE ARMY FINANCE AUTHORITIES. WE FIND NOTHING IN THE RECORD BEFORE US TO SHOW THAT THE ARMY FINANCE AUTHORITIES WHO COMPUTED THE SETTLEMENT IN COLONEL CHITTENDEN'S CASE DID NOT INTEND IT TO COVER ALL ASPECTS OF HIS CLAIM. ACCORDINGLY, NO BASIS HAS BEEN PRESENTED UPON WHICH WE MAY GIVE HIS MEDICAL EXPENSE CLAIM FAVORABLE CONSIDERATION.

IT MAY BE POINTED OUT IN CONNECTION WITH THIS MATTER THAT EVEN IF COLONEL CHITTENDEN'S ACCEPTANCE OF THE SETTLEMENT WAS NOT CONCLUSIVE OF THE MATTER, HIS MEDICAL EXPENSE CLAIM WOULD CLEARLY BE FOR DISALLOWANCE IN PART AND OF DOUBTFUL VALIDITY AS TO THE REMAINDER. THE CORRECTED RECORD PRESENTS THE PICTURE OF AN OFFICER IN ACTIVE SERVICE UNTIL MARCH 31, 1957, AND IN AN INACTIVE RETIRED STATUS THEREAFTER, WHO, AT VARIOUS TIMES DURING THE YEARS 1956, 1957 AND 1958, OBTAINED PRIVATE CIVILIAN MEDICAL TREATMENT IN A LOCALITY WHERE THERE ARE NUMEROUS MILITARY MEDICAL FACILITIES. UNDER PERTINENT LAW AND REGULATION (SEE GENERALLY ARMY REGULATIONS 40-101, 40- 108, 40-505, 40-506 AND 10 U.S.C. 1071-1085) MEMBERS OF THE ARMY IN ACTIVE SERVICE WERE ENTITLED DURING THE PERIOD INVOLVED TO MEDICAL TREATMENT IN CIVILIAN HOSPITALS AND BY PRIVATE PHYSICIANS AT GOVERNMENT EXPENSE ONLY IN EMERGENCIES OR WHEN GOVERNMENT MEDICAL FACILITIES WERE NOT AVAILABLE TO THEM, AND RETIRED MEMBERS WERE NOT AUTHORIZED TO OBTAIN PRIVATE CIVILIAN MEDICAL TREATMENT AT GOVERNMENT EXPENSE.

WE ARE RETURNING THE MATERIAL SUBMITTED WITH YOUR LETTER OF DECEMBER 7, 1959.