B-143582, AUG. 10, 1960

B-143582: Aug 10, 1960

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MARINE CORPS: REFERENCE IS MADE TO YOUR LETTER OF JULY 21. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE OTHERWISE PROPER PAYMENT OF ADDITIONAL RETIRED PAY TO LIEUTENANT COLONEL WILLIAM H. THE DATE PRECEDING THAT FROM WHICH HE WAS AUTHORIZED ADDITIONAL RETIRED PAY BY THIS OFFICE UNDER THE RE RETIREMENT CONCEPT OF GORDON V. THE LETTER WAS SUBMITTED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. HE WAS RE-RETIRED FROM THE NAVAL SERVICE ON MAY 1. THAT HIS PAY RECORD AS OF SUCH DATE BE CORRECTED TO SHOW HIS ENTITLEMENT TO PAY FROM THAT DATE AT THE RATE TO WHICH HE WAS ENTITLED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942.

B-143582, AUG. 10, 1960

TO MAJOR JOHN A. RAPP, DISBURSING OFFICER, RETIRED PAY BRANCH, MARINE CORPS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1960, AND ATTACHMENTS, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE OTHERWISE PROPER PAYMENT OF ADDITIONAL RETIRED PAY TO LIEUTENANT COLONEL WILLIAM H. HOLLINGSWORTH, U.S. MARINE CORPS, RETIRED, FOR THE PERIOD MAY 1, 1946, THE DATE FOLLOWING HIS RELEASE FROM ACTIVE DUTY AS A RETIRED OFFICER, THROUGH JANUARY 28, 1949, THE DATE PRECEDING THAT FROM WHICH HE WAS AUTHORIZED ADDITIONAL RETIRED PAY BY THIS OFFICE UNDER THE RE RETIREMENT CONCEPT OF GORDON V. UNITED STATES, 134 CT.CL. 840. THE LETTER WAS SUBMITTED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-MG-518.

THE RECORD SHOWS THAT THE ASSISTANT SECRETARY OF THE NAVY, ACTING ON THE RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, ON JUNE 30, 1960, DIRECTED THAT THE NAVAL RECORD OF COLONEL HOLLINGSWORTH, BE CORRECTED TO SHOW THAT FOLLOWING HIS RELEASE FROM EXTENDED ACTIVE DUTY SUBSEQUENT TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, HE WAS RE-RETIRED FROM THE NAVAL SERVICE ON MAY 1, 1946, AND THAT HIS PAY RECORD AS OF SUCH DATE BE CORRECTED TO SHOW HIS ENTITLEMENT TO PAY FROM THAT DATE AT THE RATE TO WHICH HE WAS ENTITLED IN ACCORDANCE WITH THE PROVISIONS OF THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368. ON THE SAME DATE, SIMILAR CORRECTIONS WERE MADE IN THE RECORDS OF A NUMBER OF OTHER OFFICERS. YOU STATE THAT THIS ACTION OF THE BOARD DIFFERS FROM THAT INVOLVED IN 39 COMP. GEN. 178, AND THE SUITS OF HAISLIP, LAMB, AND SIMONS NOW PENDING IN THE COURT OF CLAIMS, IN THAT IT REQUIRES (1) THE PERSONNEL RECORDS OF HOLLINGSWORTH TO BE CORRECTED TO SHOW HE WAS IN FACT RE-RETIRED ON THE DAY FOLLOWING HIS RELEASE FROM ACTIVE DUTY, AND (2) HIS PAY RECORD TO BE CORRECTED TO REFLECT HIS ENTITLEMENT TO THE ADDITIONAL RETIRED PAY IN QUESTION FROM THE DATE OF HIS RE RETIREMENT. YOU STATE FURTHER THAT THE ACTION OF THE BOARD APPARENTLY PRESUPPOSED THAT THERE EXISTED STATUTORY AUTHORITY FOR RE- RETIRING HOLLINGSWORTH AND THAT HIS PAY RECORD IS A MILITARY RATHER THAN A GENERAL ACCOUNTING OFFICE RECORD WITHIN THE MEANING OF 10 U.S.C. 1552. SINCE YOU FIND NO STATUTORY AUTHORITY WHICH PERMITS THE NONDISABILITY RE- RETIREMENT OF A RETIRED OFFICER OF THE MARINE CORPS, YOU EXPRESS DOUBT AS TO WHETHER THE CORRECTION ACTION TAKEN HEREIN AUTHORIZES THE ADDITIONAL PAYMENT INVOLVED. YOU EXPRESS FURTHER DOUBT AS TO WHETHER A PAY RECORD IS A MILITARY RECORD FOR THE PURPOSES OF 10 U.S.C. 1552. IF IT IS, YOU DESIRE TO BE INFORMED AS TO THE PROPER PROCEDURE TO BE EMPLOYED IN EFFECTING ITS CORRECTION UNDER THE BOARD ACTION.

THE MILITARY RECORDS OF THE MEMBER INVOLVED IN 39 COMP. GEN. 178, PURPORTEDLY WERE "CORRECTED" TO SHOW THAT AS OF A CERTAIN DATE HE WAS CREDITED WITH OVER A CERTAIN NUMBER OF YEARS OF SERVICE, AND, THE CORRECTION ACTION AUTHORIZED THE DEPARTMENT OF THE ARMY TO PAY TO THE PROPER PERSON, ALL MONEY FOUND TO BE DUE AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS. IN THAT CASE IT WAS HELD THAT UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO "CORRECT" MILITARY RECORDS AND THAT ACTION UNDER THAT SECTION, IF IT IS TO GIVE RISE TO A RIGHT TO THE PAYMENT OF MONEY, MUST, WITHOUT EXCEPTION, BE A CHANGE OF FACTS AS SET OUT IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF SOME OF, SUCH FACTS, SUCH CHANGE, ADDITION OR DELETION BEING NECESSARY TO ESTABLISH A PROPER BASIS TO SUPPORT THE PAYMENT, AND THAT AN AFFIRMATION OF FACTS ALREADY IN A MILITARY RECORD DOES NOT CONSTITUTE A CORRECTION OF THAT RECORD. WE SAID FURTHER THAT THE CORRECTION BOARD'S ACTION IN THAT CASE APPEARED TO BE AN ATTEMPT TO AVOID THE APPLICATION OF A STATUTE OF LIMITATIONS BY MEANS OF A RECITAL OF FACTS IN THE EXISTING RECORDS, AND THAT SUCH ACTION IS WITHOUT LEGAL SIGNIFICANCE.

WE SEE NO MATERIAL DIFFERENCE BETWEEN THAT CASE AND THE PRESENT CASE. THE RECOMMENDATIONS OF THE TWO CORRECTION BOARDS ARE PHRASED IN DIFFERENT LANGUAGE BUT WITH THE SAME OBJECT IN VIEW, THAT IS, TO NULLIFY THE OPERATION OF THE ACT OF OCTOBER 9, 1940, AS AMENDED,31 U.S.C. 71A, SO AS TO PERMIT THE PAYMENT OF A BARRED CLAIM FOR RETIRED PAY CREDIT UNDER THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. THE CORRECTION BOARD IN THE PRESENT CASE, LIKE THAT IN THE PREVIOUS CASE, PURPORTEDLY CORRECTED A RECORD TO SHOW ENTITLEMENT ON A BASIS ON WHICH PAYMENT HAS ALREADY BEEN MADE EXCEPT AS TO THE PERIODS BARRED BY THE STATUTE OF LIMITATIONS.

WE KNOW OF NO STATUTORY PROVISIONS WHICH REQUIRE ANY FORMAL ADMINISTRATIVE ACTION TO PLACE A RETIRED OFFICER IN A "RE-RETIRED" STATUS. UNDER THE "RE-RETIREMENT" CONCEPT OF THE GORDON CASE, ALL THAT IS REQUIRED IS THAT A RETIRED WORLD WAR I OFFICER SERVE ON ACTIVE DUTY AFTER THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT. UPON HIS RELEASE FROM ACTIVE DUTY, ALL THE FACTS ARE ESTABLISHED AND SET FORTH IN HIS RECORD WHICH ENTITLE HIM TO THE INCREASED RETIRED PAY BENEFITS UNDER THE RETIRED PAY FORMULA WHICH THE COURT HAS HELD IS APPLICABLE IN SUCH CIRCUMSTANCES. A STATEMENT BY APPROPRIATE ADMINISTRATIVE AUTHORITY AT THAT TIME THAT HE WAS "RE-RETIRED," OR AN ATTEMPT TO FORMALLY "RE-RETIRE" HIM WOULD BE WITHOUT STATUTORY AUTHORITY AND WOULD BE REDUNDANT INSOFAR AS HIS RIGHT TO INCREASED RETIRED PAY IS CONCERNED. THE PRESENT ATTEMPT BY THE CORRECTION BOARD TO INSERT A FORMAL "RE-RETIREMENT" IN COLONEL HOLLINGSWORTH'S RECORD IS EQUALLY WITHOUT LEGAL SIGNIFICANCE.

THE "RE-RETIREMENT" LABEL USED BY THE COURT OF CLAIMS TO EXPRESS ITS VIEWS IS NOT OF STATUTORY ORIGIN AND APPEARS TO BE A MISNOMER. THERE IS NO NEED TO RE-RETIRE A RETIRED OFFICER SINCE HE ALREADY HAS A RETIRED STATUS. A RETIRED OFFICER IS MERELY RELEASED TO INACTIVE DUTY ON THE RETIRED LIST AFTER A TOUR OF ACTIVE DUTY AND THE QUESTION WHICH THEN ARISES IS THE AMOUNT OF INCREASED RETIRED PAY, IF ANY, TO WHICH HE IS ENTITLED AS A RESULT OF SUCH ACTIVE DUTY. THIS IS NOT A MATTER OF STATUS, BUT OF COMPUTATION UNDER APPLICABLE PROVISIONS OF LAW. THE WORD ,RE- RETIREMENT" DOES NOT APPEAR IN 10 U.S.C. 1402 (OR IN THE STATUTORY PROVISIONS FROM WHICH THAT SECTION WAS DERIVED), WHICH CONTAINS PROVISION RELATING TO INCREASES IN RETIRED PAY TO RETIRED MEMBERS AFTER A TOUR OF ACTIVE DUTY. SUCH PAY IS THE RESULT OF RECOMPUTATION, NOT E-RETIREMENT.'

WHEN COLONEL HOLLINGSWORTH'S CLAIM WAS BEFORE US FOR PAYMENT ON THE BASIS OF THE GORDON CASE, WE APPLIED THE TEN-YEAR BARRING PROVISIONS OF THE ACT OF OCTOBER 9, 1940. IT IS OUR VIEW THAT TO NOW ALLOW PAYMENT FOR THE PERIOD PRIOR TO JANUARY 29, 1949, ON THE BASIS OF A PURPORTED CHANGE OF STATUS WHICH REQUIRED NO CHANGE IN ORDER TO ENTITLE HIM TO THE BENEFITS CLAIMED, WOULD CONSTITUTE A VIOLATION OF THE PROVISIONS OF THE 1940 STATUTE, WHICH "FOREVER" BAR CONSIDERATION OF "EVERY CLAIM" (WITH EXCEPTIONS NOT MATERIAL IN THIS CASE) NOT RECEIVED HERE WITHIN TEN YEARS "AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

THE INJUSTICE AND INEQUITY STATED BY THE CORRECTION BOARD TO BE INVOLVED IN THIS CASE DO NOT STEM FROM ANY ERROR IN THE "MILITARY RECORD" BUT RESULT FROM A FAILURE TO CLAIM THE ADDITIONAL RETIRED PAY BENEFITS BECAUSE OF THE ADMINISTRATIVE INTERPRETATION OF CERTAIN RETIRED PAY LAWS PRIOR TO THE DECISION IN THE GORDON CASE, AND TO THE APPLICATION OF THE TEN-YEAR STATUTE OF LIMITATIONS TO CLAIMS COGNIZABLE BY US. COLONEL HOLLINGSWORTH HAD THE SAME RIGHT AND OPPORTUNITY TO QUESTION THAT INTERPRETATION AS THE PLAINTIFF IN THE GORDON CASE. HE FAILED TO TAKE ANY ACTION UNTIL THE STATUTE HAD RUN AGAINST PART OF HIS CLAIM. THERE HAVE BEEN NO DEFICIENCIES OR ERRORS IN HIS RECORD AT ANY TIME CONCERNING HIS "RE- RETIREMENT.' SUCH "RE RETIREMENT" FORMED THE BASIS FOR PAYMENTS MADE TO HIM BEFORE ANY ACTION WAS TAKEN BY THE CORRECTION BOARD IN HIS CASE.

THE MATTER HERE AT ISSUE IS SUBSTANTIALLY THE SAME AS THAT INVOLVED IN THE SIMONS (CT.CL.NO. 439-59), HAISLIP (CT.CL.NO. 442-59) AND LAMB (CT.CL.NO. 466-59) CASES REFERRED TO IN YOUR SUBMISSION. IN THOSE CASES THE COURT OF CLAIMS SHOULD RULE ON THE ISSUE OF THE SCOPE AND EFFECT OF A CORRECTION BOARD'S ACTION UPON A STATUTE OF LIMITATIONS IN DISPOSING OF CASES OF THIS TYPE. UNTIL JUDICIAL PRECEDENT TO THE CONTRARY HAS BEEN ESTABLISHED, THIS OFFICE MUST ADHERE TO THE VIEWS EXPRESSED ABOVE.

CONCERNING THE PROCEDURE TO BE EMPLOYED IN EFFECTING THE "CORRECTIONS" DIRECTED BY THE CORRECTION BOARD, IN VIEW OF CONCLUSION REACHED HEREIN, THAT IS A MATTER ABOUT WHICH WE EXPRESS NO OPINION.