B-142999, JUN. 14, 1960

B-142999: Jun 14, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED MAY 3. DISALLOWING YOUR CLAIM FOR AN AMOUNT WHICH YOU BELIEVE IS DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE REGULAR ARMY. IT APPEARS FROM THE EVIDENCE OF RECORD THAT YOUR APPLICATION FOR RETIREMENT BY REASON OF LENGTH OF SERVICE WAS APPROVED AND THAT ORDERS WERE ISSUED DIRECTING YOUR RETIREMENT. IT IS YOUR CONTENTION. THAT YOU WERE NEVERTHELESS ERRONEOUSLY RETIRED "FROM ACTIVE DUTY.'. YOU INDICATE THAT YOU WERE GIVEN A FINAL TYPE PHYSICAL EXAMINATION FOR RETIREMENT PURPOSE ON OCTOBER 22. IT WAS THEN DETERMINED THAT YOU WERE PHYSICALLY FIT FOR RETIREMENT. IT APPEARS THAT AFTER RETIREMENT FURTHER HOSPITALIZATION FOR THE EYE CONDITION WAS FOUND NECESSARY AND IT IS YOUR CONTENTION THAT THE DEPARTMENT OF THE ARMY SHOULD PAY YOU AN AMOUNT EQUAL TO THE AMOUNT WHICH YOU WOULD HAVE BEEN ABLE TO EARN IN YOUR CIVILIAN EMPLOYMENT EXCEPT FOR THE NECESSARY HOSPITALIZATION.

B-142999, JUN. 14, 1960

TO MASTER SERGEANT NICHOLAS T. COLLINS, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1960, WITH WHICH YOU RETURNED OUR SETTLEMENT CERTIFICATE DATED APRIL 22, 1960, DISALLOWING YOUR CLAIM FOR AN AMOUNT WHICH YOU BELIEVE IS DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE REGULAR ARMY. YOU SAY THAT YOU WOULD LIKE "TO BRING MY CASE FOR COURT ACTION" AND YOU REQUEST THAT ALL CORRESPONDENCE SUBMITTED BY YOU BE RETURNED WHEN IT HAS SERVED ITS PURPOSE IN OUR OFFICE.

IT APPEARS FROM THE EVIDENCE OF RECORD THAT YOUR APPLICATION FOR RETIREMENT BY REASON OF LENGTH OF SERVICE WAS APPROVED AND THAT ORDERS WERE ISSUED DIRECTING YOUR RETIREMENT, EFFECTIVE JANUARY 1, 1960. IT IS YOUR CONTENTION, HOWEVER, THAT YOU WERE NEVERTHELESS ERRONEOUSLY RETIRED "FROM ACTIVE DUTY.' YOU INDICATE THAT YOU WERE GIVEN A FINAL TYPE PHYSICAL EXAMINATION FOR RETIREMENT PURPOSE ON OCTOBER 22, 1959, AND THAT ALTHOUGH YOU CALLED SPECIFIC ATTENTION TO THE FACT THAT YOUR LEFT EYE HAD NOT HEALED FOLLOWING A RECENT OPERATION, IT WAS THEN DETERMINED THAT YOU WERE PHYSICALLY FIT FOR RETIREMENT. IT APPEARS THAT AFTER RETIREMENT FURTHER HOSPITALIZATION FOR THE EYE CONDITION WAS FOUND NECESSARY AND IT IS YOUR CONTENTION THAT THE DEPARTMENT OF THE ARMY SHOULD PAY YOU AN AMOUNT EQUAL TO THE AMOUNT WHICH YOU WOULD HAVE BEEN ABLE TO EARN IN YOUR CIVILIAN EMPLOYMENT EXCEPT FOR THE NECESSARY HOSPITALIZATION, ETC.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED APRIL 22, 1960, FOR THE REASON THAT THERE IS NO APPROPRIATION AVAILABLE FROM WHICH PAYMENT OF YOUR CLAIM COULD BE AUTHORIZED. THE DISALLOWANCE OF YOUR CLAIM ON THAT BASIS WAS CORRECT. THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1690, PUBLIC LAW 86-166, 73 STAT. 366, WHICH MADE APPROPRIATIONS FOR THE DEPARTMENT OF THE ARMY FOR THE FISCAL YEAR ENDING JUNE 30, 1960, CONTAINS NO PROVISIONS WHEREBY A RETIRED MEMBER OF THE ARMY MAY RECEIVE MONETARY BENEFITS FROM THE DEPARTMENT OF THE ARMY TO COMPENSATE FOR TIME LOST FROM CIVILIAN EMPLOYMENT DUE TO HOSPITALIZATION. FURTHERMORE, SECTION 3678, REVISED STATUTES, 31 U.S.C. 628, PROVIDES THAT "EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.' THE ACTION TAKEN BY US IN DISALLOWING YOUR CLAIM DOES NOT PRECLUDE YOU FROM FILING SUIT IN THE UNITED STATES COURT OF CLAIMS. SEE 28 U.S.C. 1491.

IT IS THE PRACTICE OF THE GENERAL ACCOUNTING OFFICE TO RETURN TO CLAIMANTS ALL PERSONAL PAPERS SUCH AS ORIGINAL DISCHARGES, ORIGINAL ORDER, BIRTH CERTIFICATES, ETC., SUBMITTED IN CONNECTION WITH A CLAIM. SEE SECTION 81.2, TITLE 4, CODE OF FEDERAL REGULATIONS. AN EXAMINATION OF YOUR FILE, HOWEVER, DOES NOT DISCLOSE ANY PERSONAL PAPERS. YOUR FILE INCLUDES A LETTER DATED MARCH 23, 1960, TO YOU FROM THE ADJUTANT GENERAL OF THE ARMY, YOUR 1ST INDORSEMENT THEREON, DATED MARCH 28, 1960, TO OUR OFFICE, AND COPIES OF VARIOUS DOCUMENTS SUBMITTED IN SUPPORT OF YOUR CLAIM. SUCH PAPERS, WHICH WERE SUBMITTED IN THE PRESENTATION OF YOUR CLAIM AND ON WHICH THE ACTION TAKEN BY OUR OFFICE WAS BASED, HAVE BECOME A PART OF THE PERMANENT RECORDS OF THE GENERAL ACCOUNTING OFFICE AND MAY NOT BE RETURNED TO YOU.

EXCEPT FOR USE IN SUITS OR CLAIMS AGAINST THE UNITED STATES,PHOTOSTATIC COPIES OF CERTAIN CLASSES OF PAPERS MAY BE FURNISHED UPON PROPER REQUEST AND PAYMENT OF THE USUAL CHARGES BY THOSE SHOWING A RIGHT TO HAVE SUCH COPIES. OTHERWISE, COPIES MAY BE HAD THROUGH A MOTION GRANTED IN COURT PROCEEDINGS OR ON A REQUEST APPROVED BY DEPARTMENT OF JUSTICE OFFICIALS HAVING CHARGE OF LITIGATION IN CONNECTION WITH THE MATTER. SINCE YOU HAVE INDICATED THAT IT WAS YOUR INTENT TO USE THE REQUESTED PAPERS IN A SUIT AGAINST THE UNITED STATES, THE FURNISHING OF COPIES OTHER THAN PURSUANT TO A MOTION GRANTED IN COURT WOULD NOT BE PROPER.