B-143626, AUGUST 24, 1960, 40 COMP. GEN. 116

B-143626, AUGUST 24, 1960, 40 COMP. GEN. 116

MILITARY PERSONNEL - RECORD CORRECTIONS - UNDERPAYMENTS AND OVERPAYMENTS - ACCEPTANCE EFFECT THE ACCEPTANCE OF A SETTLEMENT OF DISABILITY RETIRED PAY BY AN ARMY OFFICER WHOSE MILITARY RECORDS WERE CORRECTED TO SHOW RETIREMENT FOR PHYSICAL DISABILITY AND TO GRANT DISABILITY RETIRED PAY FOR THE ENTIRE POSSIBLE PERIOD OF ENTITLEMENT, WHICH SETTLEMENT WAS LESS THAN THE AMOUNT PROPERLY DUE BECAUSE OF AN ADMINISTRATIVE ERROR IN COMPUTATION, CONSTITUTES A RELEASE BY THE OFFICER OF THE CLAIM UNDER 10 U.S.C. 1552 (C) AND PRECLUDES FURTHER PAYMENT TO THE OFFICER. THE PROVISIONS OF 10 U.S.C. 1552 (A), WHICH MAKE A CORRECTION OF MILITARY RECORDS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES, EXCEPT WHEN PROCURED BY FRAUD, GO ONLY SO FAR AS TO MAKE THE FACTS, AS SET OUT IN THE CORRECTED RECORD, FINAL AND CONCLUSIVE, AND NOTHING IN THOSE PROVISIONS OR IN 10 U.S.C. 1552 (C), WHICH PROVIDES THAT ACCEPTANCE OF A MILITARY RECORDS CORRECTION SETTLEMENT SHALL FULLY SATISFY THE CLAIM CONCERNED, MAY BE CONSTRUED TO MAKE AN OVERPAYMENT BASED ON SUCH CORRECTED FARES BINDING UPON THE GOVERNMENT, NOR IS THERE ANY OTHER PROVISION WHICH WOULD EXEMPT PAYMENTS BASED ON CORRECTION OF RECORDS FROM THE USUAL RULE UNDER WHICH THE GOVERNMENT MAY RECOVER ERRONEOUS PAYMENTS.

TO LIEUTENANT COLONEL R. J. MACPHERSON, DEPARTMENT OF THE ARMY, AUGUST 24, 1960:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1960, WITH ENCLOSURES, FORWARDED HERE UNDER D.O. NO. 517 (ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF $1,648.08 TO MAJOR RILEY A. HARPER, AUS, RETIRED. AMONG THE ENCLOSURES FORWARDED WITH YOUR LETTER IS A VOUCHER IN THE AMOUNT OF $1,648.08, PRESUMABLY TO BE STATED IN MAJOR HARPER'S FAVOR.

IT IS REPORTED THAT MAJOR HARPER WAS RETIRED EFFECTIVE MAY 1, 1959, THE BASIS FOR THE RETIREMENT NOT BEING STATED; THAT ON OCTOBER 13, 1959, HE WAS NOTIFIED BY THE ADJUTANT GENERAL THAT ALL HIS RECORDS HAD BEEN CORRECTED TO SHOW THAT HE WAS RETIRED BY REASON OF PHYSICAL DISABILITY (UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456,1952 USED.), ON MAY 16, 1946, THE DATE OF HIS RELIEF FROM ACTIVE DUTY AND THAT HE ACCEPTED A PAYMENT OF $7,337.06, SUPPOSEDLY REPRESENTING DISABILITY RETIRED PAY (FROM MAY 17, 1946, TO NOVEMBER 60, 1959), LESS COMPENSATION REPORTED TO HAVE BEEN RECEIVED BY HIM FROM THE VETERANS' ADMINISTRATION FOR THAT PERIOD. IT APPEARS THAT THE AMOUNT DEDUCTED AS COMPENSATION WAS BASED ON AN ERRONEOUS REPORT FROM THE VETERANS' ADMINISTRATION AND THAT THE AMOUNT ACTUALLY SO RECEIVED--- AS REPORTED BY THE VETERAN'S ADMINISTRATION SUBSEQUENT TO THE ACCEPTANCE OF PAYMENT BY MAJOR HARPER--- WAS $1,648.08 LESS THAN THE AMOUNT DEDUCTED AS COMPENSATION RECEIVED. IN OTHER WORDS, BY REASON OF AN ERROR IN COMPUTATION, MAJOR HARPER ACCEPTED A PAYMENT WHICH WAS $1,648.08 LESS THAN THE AMOUNT PROPERLY DUE HIM.

YOU REQUEST DECISION ON THE FOLLOWING QUESTIONS:

A. DOES THE ACCEPTANCE OF AN ERRONEOUSLY STATED AMOUNT CONSTITUTE A FULL RELEASE OF MAJOR HARPER'S CLAIM AGAINST THE UNITED STATES?

B. IF THE AMOUNT OF $1,648.08 HAD RESULTED IN AN OVERPAYMENT RATHER THAN AN UNDERPAYMENT, WOULD AUTHORITY EXIST TO COLLECT THE OVERPAYMENT?

SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, 1952 SED., PROVIDED FOR THE CORRECTION OF MILITARY RECORDS AND FOR PAYMENT BY THE DEPARTMENT CONCERNED OF CLAIMS FOR AMOUNTS FOUND DUE BY REASON OF SUCH CORRECTIONS. SUBSECTION (C) OF SECTION 191A, 5 U.S.C. 191A (C), PROVIDED THAT:

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 ABOVE PROVISIONS AS TO CORRECTIONS OF MILITARY RECORDS AND PAYMENT OF RESULTING CLAIMS WERE CODIFIED IN 10 U.S.C. 1552. SUBSECTION (C) OF SECTION 1552 PROVIDES THAT:

* * * A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED. * * *

YOU REFER TO OUR DECISIONS 34 COMP. GEN. 188 AND 34 COMP. GEN. 456. THE FIRST DECISION DATED OCTOBER 18, 1954, INVOLVED THE CASE OF AN OFFICER WHOSE RECORDS HAD BEEN CORRECTED TO SHOW DISABILITY INCURRED IN SEPTEMBER 1944 AND CERTIFICATION FOR DISABILITY RETIRED PAY EFFECTIVE OCTOBER 1, 1951. IT WAS HELD IN THAT DECISION THAT HIS ACCEPTANCE OF SUCH PAY FROM OCTOBER 1, 1951, CONSTITUTED A "COMPLETE RELEASE" UNDER 5 U.S.C. 191A (C) SO AS TO PRECLUDE THE ALLOWANCE OF A CLAIM FOR DISABILITY RETIRED PAY FROM JANUARY 19, 1947, THE DAY FOLLOWING THE DATE OF RELEASE FROM ACTIVE DUTY, TO SEPTEMBER 30, 1951. IN HIETT V. UNITED STATES, 131 CT.1CL. 585, DECIDED APRIL 5, 1955, OPTION MODIFIED JUNE 7, 1955, IT WAS HELD THAT THE PLAINTIFF--- THE OFFICER CONCERNED IN 34 COMP. GEN. 188--- HAD MADE TWO APPLICATIONS FOR CORRECTION OF HIS RECORDS, ONE FOR THE PERIOD PRIOR TO OCTOBER 1, 1951, THE OTHER FOR THE PERIOD BEGINNING ON THAT DATE; THAT THE FIRST APPLICATION HAD BEEN DENIED AND THE SECOND GRANTED; AND THAT ACCEPTANCE OF A PAYMENT UNDER THE CORRECTION WHICH HAD BEEN GRANTED WAS NOT A RELEASE FOR THE PERIOD FOR WHICH CORRECTION HAD BEEN DENIED. IN THE PRESENT CASE, THE CORRECTION OF MAJOR HARPER'S RECORDS WAS GRANTED FOR THE ENTIRE POSSIBLE PERIOD OF ENTITLEMENT TO DISABILITY RETIRED PAY.

IN 34 COMP. GEN. 456 IT WAS HELD THAT ACCEPTANCE OF A PAYMENT OF A CLAIM FOR RETROACTIVE RETIRED PAY BASED ON A CORRECTION OF MILITARY RECORDS DID NOT CONSTITUTE A RELEASE OF A CONCURRENT CLAIM FOR ACTIVE DUTY PAY ARISING OUT OF THE SAME CORRECTION ACTION. THIS CASE ALSO IS TO BE DISTINGUISHED FROM MAJOR HARPER'S CASE, WHICH INVOLVES BUT ONE CLAIM, THAT IS, FOR RETROACTIVE RETIRED PAY.

IN B-141392, JANUARY 14, 1960, WE CONSIDERED THE CASE OF AN OFFICER WHOSE RECORDS HAD BEEN CORRECTED TO SHOW THAT SHE HAD BEEN RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON JANUARY 13, 1946, AND CERTIFIED AS ELIGIBLE FOR DISABILITY RETIREMENT PAY UNDER THE ACT OF APRIL 3, 1939, PAYMENT THEREOF TO COMMENCE NOT LATER THAN APRIL 1, 1952, THE FIRST DAY OF THE MONTH IN WHICH THE APPLICATION FOR CORRECTION OF RECORDS HAD BEEN RECEIVED IN THE DEPARTMENT OF THE ARMY. PAYMENT OF RETROACTIVE RETIRED PAY FOR THE PERIOD APRIL 1, 1952, TO JUNE 30, 1954, WAS MADE ON A VOUCHER DATED MARCH 25, 1955, AND WAS ACCEPTED. WE STATED IN THE DECISION THAT:

* * * IT 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. * * *

HOWEVER, DESPITE THE FACT THAT PAYMENT LAWFULLY COULD HAVE BEEN MADE FOR THE PERIOD JANUARY 14, 1946, TO MARCH 31, 1952, WE HELD THAT NO CLAIM COULD BE ENTERTAINED FOR THAT PERIOD BECAUSE THERE HAD BEEN A RELEASE UNDER 5 U.S.C. 191A (C).

WE SEE NO MATERIAL DISTINGUISHING FEATURES BETWEEN THE CASE CONSIDERED IN THE DECISION OF JANUARY 14, 1960, AND MAJOR HARPER'S CASE, AND WE SEE NO DISTINCTION BETWEEN THE PERTINENT PROVISIONS OF 5 U.S.C. 191A (C) AND OF 10 U.S.C. 1552 (C) QUOTED ABOVE. THE FACT THAT MAJOR HARPER COULD OR SHOULD HAVE BEEN PAID A GREATER AMOUNT ON ACCOUNT OF THE CORRECTION OF HIS RECORDS DOES NOT WARRANT A FURTHER PAYMENT AFTER HIS ACCEPTANCE OF A PAYMENT BASED UPON SUCH CORRECTION, THUS FULLY SATISFYING, UNDER 10 U.S.C. 1552 (C), ANY AND ALL CLAIMS ARISING FROM THE CORRECTION.

ACCORDINGLY, QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE AND PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.

SECTION 1552 (A) OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART THAT---

* * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

THE ABOVE PROVISIONS GO ONLY SO FAR AS TO MAKE THE FACTS, AS SET OUT IN THE CORRECTED RECORD, FINAL AND CONCLUSIVE. THERE IS NOTHING IN THOSE PROVISIONS OR IN SUBSECTION (C), 10 U.S.C. 1552, QUOTED ABOVE, WHICH WOULD MAKE AN OVERPAYMENT BASED ON SUCH CORRECTED FACTS BINDING UPON THE GOVERNMENT. NEITHER IS THERE ANYTHING ELSE IN THE STATUTE EXEMPTING A PAYMENT BASED ON A CORRECTION OF RECORDS FROM THE USUAL RULE UNDER WHICH THE GOVERNMENT MAY RECOVER ERRONEOUS PAYMENTS.