B-142883, JUN. 22, 1966, 45 COMP. GEN. 819

B-142883: Jun 22, 1966

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THAT AN ARMY CAPTAIN HAD A RIGHT TO DISABILITY RETIREMENT FROM DATE OF RELEASE FROM ACTIVE DUTY AS HIS WAIVER OF A RETIRING BOARD HEARING TO HASTEN DISCHARGE IN 1946 WAS "NOT ENOUGH TO RIPEN A CLAIM" DID NOT CONFER ON THE OFFICER A STATUS ON THE DISABILITY RETIRED LIST TO ENTITLE HIM TO DISABILITY RETIRED PAY FOLLOWING DATE OF JUDGMENT. HIS RECORDS HAVING BEEN CORRECTED TO SHOW HE WAS PROMOTED TO THE GRADE OF MAJOR ON SEPTEMBER 15. THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY. THE RULE OF ESTOPPEL BY JUDGMENT IS NOT APPLICABLE. THE OFFICER IS ENTITLED TO RECEIVE THE DIFFERENCE BETWEEN THE DISABILITY RETIRED PAY OF A CAPTAIN AND THAT OF A MAJOR FOR THE PERIOD COVERED BY THE COURT DECISION AND TO THE RETIREMENT PAY OF A MAJOR FOLLOWING DATE OF JUDGMENT.

B-142883, JUN. 22, 1966, 45 COMP. GEN. 819

MILITARY PERSONNEL - RECORD CORRECTION - PAYMENT RESULTING FROM CORRECTION - CORRECTION SUBSEQUENT TO COURT DECISION ALTHOUGH THE DETERMINATION OF THE COURT OF CLAIMS IN NO. 167-60, DECIDED JUNE 12, 1964, THAT AN ARMY CAPTAIN HAD A RIGHT TO DISABILITY RETIREMENT FROM DATE OF RELEASE FROM ACTIVE DUTY AS HIS WAIVER OF A RETIRING BOARD HEARING TO HASTEN DISCHARGE IN 1946 WAS "NOT ENOUGH TO RIPEN A CLAIM" DID NOT CONFER ON THE OFFICER A STATUS ON THE DISABILITY RETIRED LIST TO ENTITLE HIM TO DISABILITY RETIRED PAY FOLLOWING DATE OF JUDGMENT, A SUBSEQUENT CORRECTION OF MILITARY RECORDS DID CONFER DISABILITY STATUS ON THE OFFICER UNDER THE ACT OF APRIL 3, 1939, HIS RECORDS HAVING BEEN CORRECTED TO SHOW HE WAS PROMOTED TO THE GRADE OF MAJOR ON SEPTEMBER 15, 1946, THE DATE OF HIS RELEASE FROM ACTIVE DUTY, AND THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, AND THE COURT NOT HAVING CONSIDERED THE FACT OF THE OFFICER'S PROMOTION, THE RULE OF ESTOPPEL BY JUDGMENT IS NOT APPLICABLE, AND THE CORRECTION ACTION GIVING RISE TO A NEW CLAIM, THE OFFICER IS ENTITLED TO RECEIVE THE DIFFERENCE BETWEEN THE DISABILITY RETIRED PAY OF A CAPTAIN AND THAT OF A MAJOR FOR THE PERIOD COVERED BY THE COURT DECISION AND TO THE RETIREMENT PAY OF A MAJOR FOLLOWING DATE OF JUDGMENT.

TO COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, JUNE 22, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1966, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF ADDITIONAL DISABILITY RETIREMENT PAY TO MAJOR HAROLD GRUBIN, O330059, RETIRED. THE LETTER WAS FORWARDED TO THIS OFFICE BY LETTER OF APRIL 25, 1966, FROM THE OFFICE OF THE CHIEF OF FINANCE AFTER BEING ASSIGNED D.O. NUMBER A903 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER IS A VOUCHER STATED IN MAJOR GRUBIN'S FAVOR IN THE SUM OF $14,457.79 WHICH YOU SAY REPRESENTS THE DIFFERENCE BETWEEN DISABILITY RETIREMENT PAY OF A CAPTAIN AND THAT OF A MAJOR WITH OVER 9 YEARS OF SERVICE FOR BASIC PAY PURPOSES FROM SEPTEMBER 16, 1946, THROUGH JUNE 12, 1964, AND THAT OF A MAJOR WITH OVER 9 YEARS' SERVICE FOR BASIC PAY PURPOSES FROM JUNE 13, 1964, THROUGH FEBRUARY 28, 1966, COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY RATES AUTHORIZED BY THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 359, 37 U.S.C. 101 NOTE (1946 ED.), AS AMENDED BY SUBSEQUENT LEGISLATION AUTHORIZING PERCENTAGE INCREASES.

MAJOR GRUBIN'S RIGHT TO RECEIVE DISABILITY RETIREMENT PAY FROM THE DATE OF HIS RELEASE FROM ACTIVE DUTY AS A CAPTAIN ON SEPTEMBER 15, 1946, WAS THE SUBJECT OF A DECISION OF THE COURT OF CLAIMS IN THE CASE OF HAROLD GRUBIN V. UNITED STATES, 166 CT.CL. 272.

BRIEFLY, THE FACTS AS SHOWN BY THE RECORD AND STATED IN PARAGRAPH 2 OF YOUR LETTER ARE THAT THE MEMBER ENTERED ON ACTIVE DUTY IN THE GRADE OF CAPTAIN ON MARCH 24, 1944, WITH A RECOMMENDATION FOR LIMITED SERVICE BY REASON OF PHYSICAL DISQUALIFICATION; THAT, AFTER SEVERAL PERIODS OF HOSPITALIZATION, A PHYSICAL EXAMINATION DATED AUGUST 4, 1946, FOUND HIM PERMANENTLY INCAPACITATED FOR GENERAL SERVICE, QUALIFIED FOR LIMITED SERVICE BY REASON OF ALLERGIC RHINITIS AND QUALIFIED FOR SEPARATION, AND THAT THE MEMBER ACCOMPLISHED A STATEMENT THAT HE DID NOT DESIRE RETENTION ON ACTIVE DUTY IN THE PERMANENT LIMITED SERVICE STATUS AND HE WAS PLACED ON TERMINAL LEAVE AUGUST 5, 1946, WHILE SERVING IN THE GRADE OF CAPTAIN. ON AUGUST 6, 1946, HE WAIVED HIS RIGHT TO AN IMMEDIATE TERMINAL LEAVE PROMOTION TO THE GRADE OF MAJOR, IN ORDER TO ACCEPT MUSTERING-OUT PAY. THE MEMBER WAS RELEASED FROM ACTIVE DUTY UPON COMPLETION OF HIS TERMINAL LEAVE ON SEPTEMBER 15, 1946, NOT BY REASON OF PHYSICAL DISABILITY. YOU SAY HE WAS PROMOTED TO THE GRADE OF MAJOR, ARMY OF THE UNITED STATES, ON DECEMBER 11, 1946.

THE MEMBER DID NOT TAKE ANY AFFIRMATIVE ACTION TO ESTABLISH HIS ENTITLEMENT TO DISABILITY RETIREMENT PAY UNTIL 1957 WHEN HE FILED AN APPLICATION FOR A REVIEW OF HIS CASE WITH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS AND THAT BOARD ON APRIL 9, 1958, DENIED HIS REQUEST BECAUSE OF INSUFFICIENT EVIDENCE OF MATERIAL ERROR OR INJUSTICE. THEREAFTER, ON MAY 4, 1960, THE PLAINTIFF FILED A PETITION IN THE COURT OF CLAIMS FOR DISABILITY RETIREMENT PAY FROM SEPTEMBER 15, 1946, LESS DISABILITY COMPENSATION HE RECEIVED FROM THE VETERANS ADMINISTRATION. THE COURT IN ITS DECISION OF JUNE 12, 1964, HELD THAT GRUBIN WAS ENTITLED TO RECOVER DISABILITY RETIRED PAY FROM THE DATE OF HIS RELEASE FROM ACTIVE DUTY ON SEPTEMBER 15, 1946, AND JUDGMENT WAS ENTERED TO THAT EFFECT. SUPPORT OF ITS CONCLUSION, THE COURT RELIED ON FRIEDMAN V. UNITED STATES, 159 CT.CL. ; HARPER V. UNITED STATES, 159 CT.CL. 135 (1962), AND SCHIFFMAN V. UNITED STATES, 162 CT.CL. 646 (1963). WHILE THE PLAINTIFF WAIVED A RETIRING BOARD HEARING IN 1946, AND REQUESTED THAT THE PROCEEDINGS FOR HIS DISCHARGE BE HASTENED, THE COURT TOOK THE VIEW THAT THE DECLINATION OF A RETIRING BOARD HEARING FOR THE PLAINTIFF WAS "NOT ENOUGH TO RIPEN A CLAIM," CITING THE HARPER CASE AS AUTHORITY.

PURSUANT TO THE COURT'S JUDGMENT, OUR CLAIMS DIVISION BY SETTLEMENT DATED AUGUST 31, 1964, ALLOWED THE PLAINTIFF, MAJOR GRUBIN, THE SUM OF $40,552.18, REPRESENTING DISABILITY RETIREMENT PAY FROM OCTOBER 1, 1946, THROUGH DATE OF JUDGMENT, JUNE 12, 1964, COMPUTED AT 75 PERCENT OF THE ACTIVE DUTY PAY OF A CAPTAIN WITH OVER 9 YEARS OF SERVICE FOR BASE AND LONGEVITY PAY PURPOSES AS AUTHORIZED BY THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, PLUS THE PERCENTAGE INCREASE PROVIDED IN THE MILITARY PAY ACTS OF MAY 19, 1952, MARCH 31, 1955, MAY 20, 1958, AND OCTOBER 2, 1963, LESS MUSTERING-OUT PAY PAID UPON RELEASE FROM ACTIVE DUTY ON SEPTEMBER 15, 1946, AND DISABILITY COMPENSATION PAID BY THE VETERANS ADMINISTRATION DURING THE PERIOD FEBRUARY 25, 1957, THROUGH JUNE 12, 1964. THE COURT'S JUDGMENT OF $40,552.18 EXCLUDED THE PERIOD SEPTEMBER 16 TO 30, 1946, SINCE THE PROVISIONS OF 5 U.S.C. 47A DID NOT PERMIT GRUBIN'S RETIREMENT PRIOR TO OCTOBER 1, 1946, AUTHORITY TO EFFECT RETIREMENT FOR DISABILITY ON OTHER THAN THE FIRST DAY OF THE MONTH NOT HAVING BEEN ENACTED INTO LAW UNTIL 1956. SEE THE ACT OF AUGUST 2, 1956, CH. 876, 70 STAT. 933, NOW CODIFIED IN 10 U.S.C. 1221.

AS POINTED OUT IN YOUR SUBMISSION AND AS SHOWN BY THE RECORD, ON APRIL 20, 1965, THE UNDER SECRETARY OF THE ARMY CORRECTED GRUBIN'S MILITARY RECORDS UNDER 10 U.S.C. 1552 TO SHOW:

A. THAT HE WAS PROMOTED TO THE GRADE OF MAJOR, ARMY OF THE UNITED STATES ON 15 SEPTEMBER 1946; AND

B. THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON 15 SEPTEMBER 1946, AND CERTIFIED FOR RETIREMENT PAY BENEFITS UNDER THE PROVISIONS OF THE ACT OF 3 APRIL 1939, EFFECTIVE 16 SEPTEMBER 1946, IN THE GRADE OF MAJOR.

THE CORRECTION ACTION WAS IMPLEMENTED BY PARAGRAPH 152, SPECIAL ORDERS NO. 116, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED APRIL 30, 1965. IT IS REPORTED THAT THE MEMBER WAS CREDITED WITH 2 YEARS 11 MONTHS AND 22 DAYS' ACTIVE SERVICE, AND 9 YEARS 5 MONTHS AND 25 DAYS' SERVICE FOR BASIC PAY PURPOSES.

THE CORRECTION OF THE RECORDS WAS ACCOMPLISHED, YOU SAY,"AS THE LEGAL BASIS TO AUTHORIZE CONTINUATION OF RETIRED PAY SUBSEQUENT TO THE DATE OF JUDGMENT BY THE COURT OF CLAIMS, IN ACCORDANCE WITH THE RULING IN 43 COMP. GEN. 242 (FRITH V. UNITED STATES, CT.CL. NO. 138-59).' IN OUR DECISION OF SEPTEMBER 10, 1963, 43 COMP. GEN. 242, IN THE CASE OF CAPTAIN OLLIE T. FRITH, WE HELD (QUOTING THE SYLLABUS) THAT:

AN AIR FORCE CAPTAIN DISCHARGED FOR DISABILITY WITH SEVERANCE PAY WHO SUBSEQUENTLY IN FRITH V. UNITED STATES, 156 CT.CL. 188, IS AWARDED A MONEY JUDGMENT EQUAL TO RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN FROM DATE OF DISCHARGE THROUGH DATE OF JUDGMENT, LESS THE DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION AND THE MUSTERING-OUT PAYMENT RECEIVED AFTER RELEASE FROM ACTIVE DUTY, MAY NOT ON THE BASIS OF THE DECISION CONTINUE TO RECEIVE RETIRED PAY FOR PERIODS SUBSEQUENT TO THE PERIOD COVERED BY THE JUDGMENT IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF THE OFFICER'S RECORDS BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, THE DECISION NOT BESTOWING ON THE OFFICER ANY STATUS IN THE AIR FORCE, ACTIVE OR RETIRED, AND THE MONEY JUDGMENT NEITHER AFFECTING A CHANGE IN THE OFFICER'S RECORDS THAT FAILED TO DISCLOSE A MILITARY STATUS SUBSEQUENT TO DATE OF DISCHARGE, NOR COMPELLING EXECUTIVE ACTION TO EFFECT THE CHANGE.

YOU SAY THAT BECAUSE COMPUTATION OF AMOUNTS DUE UNDER THE CORRECTION OF RECORDS IS BASED ON THE MEMBER'S TERMINAL LEAVE PROMOTION GRADE OF MAJOR AND THE COURT OF CLAIMS SETTLEMENT WAS COMPUTED ON THE PAY OF A CAPTAIN, YOU EXPRESS DOUBT AS TO WHETHER:

A. ADDITIONAL PAYMENT, AS A RESULT OF THE CORRECTION OF RECORDS, COMPUTED ON THE GRADE OF MAJOR, IS A NEW AND SEPARATE CLAIM FROM THAT ARISING FROM THE PETITION FILED IN THE COURT OF CLAIMS, SO THAT THE DIFFERENCE IN PAY MAY NOW BE PAID FROM 16 SEPTEMBER 1946, DATE OF CERTIFICATION THROUGH 12 JUNE 1964, THE PERIOD COVERED BY THE COURT'S SETTLEMENT; OR

B. ADDITIONAL PAYMENT FOR THIS PERIOD IS PRECLUDED BY THE RULE OF ESTOPPEL BY JUDGMENT, AND

C. THE COURT OF CLAIMS JUDGMENT FIXES THE MEMBER'S RIGHT TO DISABILITY RETIREMENT PAY FOR THE PERIOD FOLLOWING THE PERIOD OF JUDGMENT; OR, IF PAYMENT COMPUTED ON THE PAY OF A MAJOR IS PROPER FROM 13 JUNE 1964.

MAJOR GRUBIN'S RIGHT TO RECEIVE DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1946 ED.), FROM THE DATE OF HIS RELEASE FROM ACTIVE DUTY IN SEPTEMBER 1946, IS DEPENDENT UPON HIS PHYSICAL CONDITION AS OF THAT DATE. NO RIGHT TO THE BENEFITS OF 10 U.S.C. 456 CAN ACCRUE TO HIM IN THE ABSENCE OF A DETERMINATION BY COMPETENT AUTHORITY THAT HE INCURRED A SERVICE- CONNECTED DISABILITY WHICH RENDERED HIM UNFIT FOR ACTIVE MILITARY SERVICE AS OF THE DATE OF HIS RELEASE FROM ACTIVE DUTY IN SEPTEMBER 1946. WAIVED A RETIRING BOARD HEARING IN 1946 AND REQUESTED THAT THE PROCEEDINGS FOR HIS DISCHARGE BE HASTENED. THE COURT'S DECISION OF JUNE 12, 1964, DID NOT, AND COULD NOT, CONFER ON HIM THE STATUS OF AN OFFICER ON THE DISABILITY RETIRED LIST. SEE THE COURT OF CLAIMS DECISIONS CITED IN 43 COMP. GEN. 242, 244.

UNDER THE COURT'S DECISION OF JUNE 12, 1964, ALONE THERE WAS NO AUTHORITY TO PAY THE MEMBER DISABILITY RETIREMENT PAY FOR THE PERIOD FOLLOWING THE DATE OF JUDGMENT. FURTHER ADMINISTRATIVE ACTION WAS NECESSARY AND IT WAS NOT UNTIL HIS RECORDS WERE CORRECTED THAT MAJOR GRUBIN ATTAINED A RETIRED STATUS UNDER THE 1939 ACT AND BECAME ENTITLED TO RECEIVE RETIREMENT PAY AS THERE PROVIDED, AND THE RUNNING OF THE 10-YEAR PERIOD (UNDER THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A) DURING WHICH A CLAIM COULD BE FILED BEGAN ON THAT DATE. COMPARE OUR DECISION DATED JANUARY 11, 1966, 45 COMP. GEN. 389.

SINCE AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY MAJOR GRUBIN ACTUALLY HELD THE GRADE OF CAPTAIN AND SINCE HIS RECORDS HAVE SINCE BEEN CORRECTED TO SHOW THAT HE WAS "PROMOTED TO THE GRADE OF MAJOR, ARMY OF THE UNITED STATES ON 15 SEPTEMBER 1946," SUCH CORRECTIVE ACTION MAY BE CONSIDERED AS GIVING RISE TO A NEW AND SEPARATE CLAIM INVOLVING A NEW FACT NOT CONSIDERED IN THE COURT'S DECISION OF JUNE 12, 1964. HENCE, IN OUR OPINION, THE RULE OF ESTOPPEL BY JUDGMENT IS NOT APPLICABLE.

ACCORDINGLY, MAJOR GRUBIN IS ENTITLED TO RECEIVE THE DIFFERENCE BETWEEN THE DISABILITY RETIREMENT PAY OF A CAPTAIN AND THAT OF A MAJOR FOR THE PERIOD OCTOBER 1, 1946, TO JUNE 12, 1964, AND THE RETIREMENT PAY OF A MAJOR FROM JUNE 13, 1964, TO FEBRUARY 28, 1966. SINCE, HOWEVER, THE VOUCHER COVERS PAYMENT OF RETIREMENT PAY FOR THE PERIOD "16 SEPTEMBER 1946 TO 28 FEBRUARY 1966" AND SINCE AS INDICATED ABOVE, THERE IS NO LEGAL BASIS FOR PAYING RETIREMENT PAY PRIOR TO OCTOBER 1, 1946, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT, PROVIDED IT IS ADJUSTED AND RECOMPUTED TO COMMENCE ENTITLED FROM OCTOBER 1, 1946.