B-146018, AUG. 3, 1961

B-146018: Aug 3, 1961

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NAVY FINANCE CENTER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 26. THE LETTER WAS SUBMITTED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. YOU REPORT THAT CAPTAIN MINCKLER WAS PLACED ON THE RETIRED LIST ON JANUARY 1. WAS CONSIDERED AS BARRED BY THE ACT OF OCTOBER 9. 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 SECTION 15. IT IS STATED THAT LIEUTENANT WOODS HAD TWO TOURS OF ACTIVE DUTY SUBSEQUENT TO HIS TRANSFER TO THE FLEET RESERVE ON JULY 25. HE WAS LAST RELEASED TO INACTIVE DUTY ON APRIL 17. THE SETTLEMENT WAS STATED PURSUANT TO DECISION 32 COMP. WAS DISALLOWED UNDER THE ACT OF OCTOBER 9.

B-146018, AUG. 3, 1961

TO HEAD, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1961, AND ATTACHMENTS, REQUESTING DECISION WHETHER OR NOT PAYMENT OF ADDITIONAL RETIRED PAY MAY BE MADE TO CAPTAIN CAMPBELL H. MINCKLER, USN (RETIRED), 40054, AND LIEUTENANT CLARENCE WOODS, USN (RETIRED), 284794, ON THE BASIS OF INFORMATION FURNISHED BY YOU AS STATED BELOW AND ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS IN THEIR CASES. THE LETTER WAS SUBMITTED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-583.

YOU REPORT THAT CAPTAIN MINCKLER WAS PLACED ON THE RETIRED LIST ON JANUARY 1, 1947, UNDER 34 U.S.C. 410A AND 410C. ON NOVEMBER 8, 1957, THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, CERTIFIED FOR PAYMENT ADDITIONAL RETIRED PAY DUE CAPTAIN MINCKLER UNDER 37 COMP. GEN. 31 FOR THE PERIOD SEPTEMBER 30, 1947, THROUGH SEPTEMBER 30, 1949, BY REASON OF HIS SERVICE AS A MIDSHIPMAN PRIOR TO NOVEMBER 12, 1918. THAT PORTION OF HIS CLAIM FOR THE PERIOD JANUARY 1, 1947, THROUGH SEPTEMBER 29, 1947, WAS CONSIDERED AS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. JUNE 27, 1960, THE BOARD FOR CORRECTION OF NAVAL RECORDS DECIDED THAT CAPTAIN MINCKLER'S "NAVAL RECORD, SPECIFICALLY HIS PAY RECORD, AS OF 1 JANUARY 1947, THE DATE OF HIS RETIREMENT, 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 SECTION 15, PARAGRAPH 4 OF THE PAY READJUSTMENT ACT OF 1942.'

IT IS STATED THAT LIEUTENANT WOODS HAD TWO TOURS OF ACTIVE DUTY SUBSEQUENT TO HIS TRANSFER TO THE FLEET RESERVE ON JULY 25, 1929. HE WAS LAST RELEASED TO INACTIVE DUTY ON APRIL 17, 1946. ON FEBRUARY 16, 1959, THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, CERTIFIED FOR PAYMENT ADDITIONAL RETIRED PAY DUE LIEUTENANT WOODS FOR THE PERIOD JUNE 4, 1948, THROUGH SEPTEMBER 30, 1949. THE SETTLEMENT WAS STATED PURSUANT TO DECISION 32 COMP. GEN. 159. THAT PORTION OF HIS CLAIM FOR THE PERIOD APRIL 18, 1946, THROUGH JUNE 3, 1948, WAS DISALLOWED UNDER THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, SINCE THE CLAIM WAS NOT RECEIVED UNTIL JUNE 4, 1958. SUBSEQUENTLY, THE BOARD FOR CORRECTION OF NAVAL RECORDS DECIDED THAT LIEUTENANT WOODS'"PAY RECORD AS OF 17 APRIL 1946 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 ACT OF AUGUST 10, 1946 AND THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF CHRISTOPHER C. SANDERS V. THE UNITED STATES, 120 C.CLS. 501.'

WE SEE NO MATERIAL DIFFERENCE IN THE PRESENT CASES AND THAT CONSIDERED IN 39 COMP. GEN. 178. THE RECOMMENDATIONS OF THE CORRECTION BOARDS HAVE 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 PAYMENT OF A BARRED CLAIM FOR ADDITIONAL RETIRED PAY. THE CORRECTION BOARD IN THE PRESENT CASES 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.

WHEN CAPTAIN MINCKLER'S CLAIM WAS BEFORE US FOR PAYMENT ON THE BASIS OF THE TRAVIS CASE, 137 CT.CL. 148, AND LIEUTENANT WOODS' CLAIM ON THE BASIS OF THE SANDERS 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 PERIODS PRIOR TO THE TEN-YEAR PERIOD, ON THE BASIS OF A PURPORTED CHANGE OF RECORD WHICH REQUIRED NO CHANGE IN ORDER TO ENTITLE THEM TO THE ADDITIONAL RETIRED PAY CLAIMED, WOULD CONSTITUTE A VIOLATION OF THE PROVISIONS OF THE 1940 STATUTE, WHICH "FOREVER" BAR CONSIDERATION OF "EVERY CLAIM" (WITH EXCEPTIONS NOT MATERIAL HERE) NOT RECEIVED HERE WITHIN TEN YEARS "AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

IF ANY DOUBTS EXISTED AS TO THE PROPER CONCLUSION IN A CASE SUCH AS IS HERE INVOLVED, SUCH DOUBTS WERE SET AT REST BY THE COURT OF CLAIMS IN THE CASE OF HAISLIP V. UNITED STATES, CT.CL.NO. 442-59, DECIDED JANUARY 18, 1961. IN CONSIDERING SUBSTANTIALLY THE SAME QUESTIONS PRESENTED HERE, THE COURT STATED THAT:

"WE ARE UNABLE TO SEE HOW THE "DECISION" OF THE CORRECTION BOARD GAVE PLAINTIFF ANY RIGHT HE HAD NOT HAD ALL ALONG. NO FACT APPEARING IN PLAINTIFF'S RECORD WAS CHANGED. THE FACTS REMAINED AS THEY HAD BEEN. THE BASIS OF THOSE FACTS, PLAINTIFF WAS ENTITLED TO BRING SUIT IMMEDIATELY AFTER HE WAS RETURNED TO THE RETIRED LIST AND THE DENIAL BY THE NAVY OF THE CLAIM HE NOW MAKES. THAT WAS IN 1946, WHICH WAS 13 YEARS BEFORE HIS PETITION WAS FILED IN THIS CASE. IN THAT 13 YEARS THE FACTS AND LAW GOVERNING HIS RIGHTS HAVE NOT CHANGED. ALL THAT THE "DECISION" OF THE BOARD AMOUNTED TO WAS A DECISION THAT ON THE BASIS OF THOSE FACTS PLAINTIFF WAS ENTITLED TO THE RIGHTS HE NOW CLAIMS. THE BOARD'S DECISION WAS MERELY A LEGAL CONCLUSION, BASED ON THE LAW AND THE FACTS OF RECORD, NO ONE OF WHICH WAS CHANGED BY THE BOARD.'

THE VIEWS OF THE JUDGE ADVOCATE GENERAL OF THE NAVY EXPRESSED IN HIS ENDORSEMENT DATED MAY 15, 1961, TO THE COMPTROLLER OF THE NAVY, ACCOMPANYING YOUR LETTER, ARE INCONSISTENT WITH THOSE EXPRESSED BY THE COURT OF CLAIMS ON JANUARY 18, 1961, IN THE HAISLIP CASE AND, HENCE, WE ARE NOT PERSUADED TO MODIFY THE VIEWS EXPRESSED IN 39 COMP. GEN. 178.

ACCORDINGLY, PAYMENT OF ADDITIONAL RETIRED PAY TO CAPTAIN MINCKLER AND TO LIEUTENANT WOODS ON THE BASIS OF ACTION TAKEN BY THE BOARD OF CORRECTION OF NAVAL RECORDS IN THEIR CASES, IS NOT AUTHORIZED.