B-150884, JUNE 10, 1963, 42 COMP. GEN. 685

B-150884: Jun 10, 1963

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WHO PRIOR TO PROMOTION ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY. ARE NOT RESTRICTED TO REGULAR OFFICERS BUT ARE FOR APPLICATION ALSO TO OFFICERS OTHER THAN REGULAR OFFICERS. THUS ENTITLING OFFICERS WHOSE NAMES WERE ON A RECOMMENDED LIST FOR TEMPORARY PROMOTION UNDER SECTION 515 (C) OF THE 1947 ACT TO THE HIGHER GRADE AND PAY ON THE RETIRED LIST DOES NOT REFLECT THE INTENT OF THE CONGRESS REGARDING SECTION 507 OF THE ACT. IN VIEW OF THE FACT THAT IT IS UNLIKELY THAT THE COURT WILL CHANGE ITS POSITION. THE HOLDING WILL BE FOLLOWED AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF ADMINISTRATIVE PAYMENTS MADE IN OTHER SIMILAR CASES.

B-150884, JUNE 10, 1963, 42 COMP. GEN. 685

COURTS - JUDGMENTS, DECREES, ETC. - ACCEPTANCE AS PRECEDENT BY GENERAL ACCOUNTING OFFICE. PAY - RETIRED - DISABILITY - NAME ON PROMOTION LIST WHILE THE HOLDING IN KRATZ V. UNITED STATES, CT.CL. NO. 347-59, AND WILLIS V. UNITED STATES, CT.CL. NO. 255-60, DECIDED MARCH 7, 1962, THAT THE PROVISIONS OF SECTION 507 (A) (7) OF THE OFFICER PERSONNEL ACT OF 1947 AUTHORIZING RETIREMENT OF OFFICERS ON A RECOMMENDED LIST FOR PROMOTION, WHO PRIOR TO PROMOTION ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY, IN THE GRADE FOR WHICH RECOMMENDED, ARE NOT RESTRICTED TO REGULAR OFFICERS BUT ARE FOR APPLICATION ALSO TO OFFICERS OTHER THAN REGULAR OFFICERS, THUS ENTITLING OFFICERS WHOSE NAMES WERE ON A RECOMMENDED LIST FOR TEMPORARY PROMOTION UNDER SECTION 515 (C) OF THE 1947 ACT TO THE HIGHER GRADE AND PAY ON THE RETIRED LIST DOES NOT REFLECT THE INTENT OF THE CONGRESS REGARDING SECTION 507 OF THE ACT, IN VIEW OF THE FACT THAT IT IS UNLIKELY THAT THE COURT WILL CHANGE ITS POSITION, THE HOLDING WILL BE FOLLOWED AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF ADMINISTRATIVE PAYMENTS MADE IN OTHER SIMILAR CASES. AN ARMY OFFICER WHOSE NAME WAS ON A RECOMMENDED LIST FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN, ARMY OF THE UNITED STATES, CONSIDERED BY AN ARMY SELECTION BOARD CONVENED ON MAY 8, 1951, PURSUANT TO SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, BUT WAS DELETED FROM THE LIST WHEN THE NAMES OF THE OFFICERS WITH WHICH HE WAS LISTED WERE ANNOUNCED IN DECEMBER 1951 BECAUSE OF HIS PREVIOUS RETIREMENT FOR DISABILITY ON SEPTEMBER 30, 1951, IS PRESUMED TO HAVE HAD HIS NAME ON THE PROMOTION LIST ON THE DATE THAT HE WAS FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY AND IS, THEREFORE, ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN BASED ON SECTION 507 (A) (7) OF THE 1947 ACT UNDER THE DECISIONS OF MARCH 7, 1962, IN THE KRATZ AND WILLIS CASES, CT.CL. NOS. 347-59 AND 255-60.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, JUNE 10, 1963:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1962, SUBMITTING FOR ADVANCE DECISION, AS TO PROPRIETY OF PAYMENT, A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT JOE B. KUYKENDALL, SERVICE NO. O-2019753, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A FIRST LIEUTENANT AND THAT OF CAPTAIN FOR THE PERIOD OCTOBER 1, 1951, THROUGH NOVEMBER 30, 1962. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT OF FEBRUARY 20, 1963, UNDER D.O. NUMBER A-691, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT LIEUTENANT KUYKENDALL WAS RETIRED SEPTEMBER 30, 1951, BY REASON OF PHYSICAL DISABILITY UNDER AUTHORITY OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816 AND 823, 37 U.S.C. 272 AND 279, RESPECTIVELY. HE HAS BEEN PAID RETIRED PAY IN THE GRADE OF FIRST LIEUTENANT SINCE DATE OF RETIREMENT. HIS CLAIM IS FOR RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN BASED ON THE DECISION RENDERED MARCH 7, 1962, BY THE COURT OF CLAIMS IN THE CASE OF GOLDEN P. KRATZ V. UNITED STATES, CT.CL. NO. 347-59, DECIDED MARCH 7, 1962, CONTENDING THAT THE FACTS IN HIS CASE ARE SIMILAR TO THOSE IN THE KRATZ CASE.

IN THE KRATZ CASE THE PLAINTIFF'S NAME HAD BEEN PLACED ON A RECOMMENDED LIST FOR PROMOTION TO TEMPORARY GRADE OF COLONEL IN THE ARMY OF THE UNITED STATES UNDER AUTHORITY OF SECTION 515 (C), OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 907, 10 U.S.C. 506D (1952 ED.). SEE DEPARTMENT OF THE ARMY GENERAL ORDERS NO. 82, AUGUST 28, 1952, SENIORITY NO. 841, PAGE 7, ISSUED IN ACCORDANCE WITH PARAGRAPH 2A, SECTION II, DEPARTMENT OF THE ARMY CIRCULAR NO. 22, MARCH 28, 1951, ESTABLISHING ZONES OF CONSIDERATION FOR PROMOTION TO TEMPORARY GRADE OF COLONEL OF REGULAR AND OTHER THAN REGULAR OFFICERS. THE COURT IN KRATZ AND ALSO IN THE SIMILAR CASE OF ROBERT E. WILLIS V. UNITED STATES, CT.CL. NO. 255-60, DECIDED THE SAME DAY, MARCH 7, 1962, HELD THAT THE PROVISIONS OF SECTION 507 (A) (7) OF THE 1947 ACT, 61 STAT. 893, 10 U.S.C. 559A (7) (1952 ED.), WERE NOT RESTRICTED TO REGULAR OFFICERS, BUT WERE FOR APPLICATION TO OFFICERS OTHER THAN REGULAR OFFICERS AND, HENCE, THAT KRATZ AND WILLIS, WHOSE TEMPORARY PROMOTION STATUS WAS ESTABLISHED UNDER AUTHORITY OF SECTION 515 (C) OF THE 1947 LAW, WERE ENTITLED TO HIGHER GRADE AND PAY ON THE RETIRED LIST.

SECTION 507 (A) (7), WHICH HAS BEEN REPEALED BY SECTION 53, ACT OF AUGUST 10, 1956, CH. 1941, 70A STAT. 641, 677, PROVIDED IN PERTINENT PART AS FOLLOWS:

OFFICERS ON A RECOMMENDED LIST FOR PROMOTION TO ANY GRADE UNDER THE PROVISIONS OF THIS TITLE, WHO, AT ANY TIME PRIOR TO PROMOTION, ARE FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY SHALL, WHEN RETIRED, BE RETIRED IN THE GRADE FOR WHICH THEY WERE RECOMMENDED * * *.

WE HAVE SERIOUS DOUBTS THAT THE DECISION OF MARCH 7, 1962, IN THE KRATZ AND WILLIS CASES TRULY REFLECTS THE INTENT OF THE CONGRESS SINCE, AS POINTED OUT BY JUDGE WHITAKER IN HIS DISSENTING OPINION, SECTION 507 (A) (7) "APPLIES ONLY TO OFFICERS OF THE REGULAR ARMY.' HOWEVER, THE DEFENDANT'S (GOVERNMENT-S) MOTIONS FOR REHEARINGS IN THE KRATZ AND WILLIS CASES WERE DENIED BY THE COURT AND BOTH DECISIONS HAVE BECOME FINAL. IT, THEREFORE, SEEMS MOST UNLIKELY THAT THE COURT WOULD NOT ADHERE TO THE POSITION IT HAS TAKEN WITH RESPECT TO THE PROVISIONS OF SECTION 507 (A) (7) IN ANY OTHER SIMILAR CASE BROUGHT BEFORE IT. IN SUCH CIRCUMSTANCES, THIS OFFICE WILL FOLLOW THE COURT'S HOLDING IN THE KRATZ AND WILLIS CASES AS A PRECEDENT IN SETTLING CLAIMS AND PASSING UPON THE LEGALITY OF ADMINISTRATIVE PAYMENTS MADE IN OTHER SIMILAR CASES.

ON APRIL 4, 1963, WE REQUESTED CERTAIN ADDITIONAL INFORMATION FROM THE ADJUTANT GENERAL OF THE ARMY CONCERNING "THE PROMOTION LIST" STATUS OF LIEUTENANT KUYKENDALL. IN HIS REPLY DATED APRIL 29, 1963, THE ADJUTANT GENERAL ADVISES THAT "ESSENTIALLY NO DIFFERENCE EXISTS BETWEEN THE TWO CASES (KRATZ AND KUYKENDALL) WITH RESPECT TO THE NATURE OF OR AUTHORITY FOR THE PROMOTION PROCEDURES INVOLVED.' IN THAT CONNECTION, IT IS STATED THAT THE PROMOTION PROGRAM UNDER WHICH KRATZ AND KUYKENDALL WERE CONSIDERED WAS PROMULGATED IN DEPARTMENT OF THE ARMY CIRCULAR NO. 22, MARCH 28, 1951, PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 515 (C) OF THE 1947 LAW.

THE ADJUTANT GENERAL REPORTS THAT LIEUTENANT KUYKENDALL WAS CONSIDERED FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN, AUS, BY THE ARMY SELECTION BOARD FOR CAPTAIN WHICH CONVENED MAY 8, 1951. THE BOARD FURNISHED THE ADJUTANT GENERAL A LIST OF SUCH OFFICERS AS IT RECOMMENDED FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN, ARRANGED IN ORDER OF THEIR DATE OF RANK SENIORITY. THE ENCLOSURES RECEIVED WITH THE ADJUTANT GENERAL'S REPLY OF APRIL 29, 1963, DISCLOSE THAT LIEUTENANT KUYKENDALL'S NAME APPEARED AT SEQUENCE NO. 1217 ON A REPORT OF 1,224 OFFICERS RECOMMENDED FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN AND THAT PROMOTION OF THE GROUP OF OFFICERS WITH WHICH HE WAS LISTED WAS ANNOUNCED IN PARAGRAPH 11, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 251, DECEMBER 18, 1951. THE ADJUTANT GENERAL ADDS THAT LIEUTENANT KUYKENDALL'S "NAME HAD BEEN DELETED FROM THE RECOMMENDED LIST BY REASON OF HIS RETIREMENT PRIOR TO DATE OF PROMOTION.'

THE INFORMATION ABOVE SUMMARIZED ESTABLISHES THAT LIEUTENANT KUYKENDALL'S NAME HAD BEEN PLACED ON A RECOMMENDED LIST (OR ROSTER) FOR TEMPORARY PROMOTION TO THE GRADE OF CAPTAIN BY THE ARMY SELECTION BOARD CONVENED MAY 8, 1950, AND WHICH ADJOURNED ON JULY 27, 1951, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 515 (C) OF THE 1947 LAW; AND FROM THE STATEMENT MADE BY THE ADJUTANT GENERAL THAT LIEUTENANT KUYKENDALL'S NAME WAS DELETED FROM THE RECOMMENDED LIST BY REASON OF HIS RETIREMENT PRIOR TO DATE OF PROMOTION, IT IS ASSUMED THAT HIS NAME WAS ON THE RECOMMENDED LIST FOR PROMOTION ON THE DATE HE WAS FOUND INCAPACITATED FOR SERVICE BY REASON OF PHYSICAL DISABILITY CONTRACTED IN LINE OF DUTY. IF THAT ASSUMPTION IS CORRECT, THE RULE OF THE KRATZ AND WILLIS CASES WILL GOVERN AND LIEUTENANT KUYKENDALL IS ENTITLED TO THE HIGHER GRADE OF CAPTAIN ON THE RETIRED LIST AS PROVIDED IN SECTION 507 (A) (7) OF THE 1947 ACT.

THE VOUCHER THAT WAS SUBMITTED WITH YOUR LETTER COVERS THE PERIOD OCTOBER 1, 1951, TO NOVEMBER 30, 1962, INCLUSIVE. SUCH VOUCHER, WHICH WAS RECEIVED IN THIS OFFICE ON FEBRUARY 20, 1963, CONSISTING OF FC USA FORMS 20-41 AND 20-43, IS NOT SIGNED BY THE CLAIMANT, JOE B. KUYKENDALL, BUT WAS SIGNED BY A. M. MUSGRAVE, AS AUTHORIZED CERTIFYING OFFICER. IN THAT CONNECTION IT APPEARS APPROPRIATE TO CALL ATTENTION TO THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, WHICH, IN PERTINENT PART PROVIDES THAT ANY CLAIM OR DEMAND (WITH EXCEPTION NOT MATERIAL HERE) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF TITLE 31, U.S. CODE,"SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE (GENERAL ACCOUNTING OFFICE) WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.' THERE IS NO RECORD IN THE GENERAL ACCOUNTING OFFICE OF THE RECEIPT OF A CLAIM FROM LIEUTENANT KUYKENDALL FOR INCREASED RETIRED PAY. AS TO THE PROPER PROCEDURE, SEE 4 GAO 2025.10 (GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES) RELATING TO STATUTORY LIMITATIONS ON CLAIMS AND PROVIDING IN PERTINENT PART AS FOLLOWS:

CLAIMANTS SHOULD SUBMIT THEIR CLAIMS DIRECTLY TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE IF THE STATUTORY PERIOD OF LIMITATION WILL SOON EXPIRE. (HOWEVER, SEE 4 GAO 2020.30). IN ORDER TO PROTECT THE INTERESTS OF CLAIMANTS, CLAIMS RECEIVED BY AGENCIES AS TO WHICH THE RIGHT OF PAYMENT ACCRUED EIGHT YEARS OR MORE PRIOR TO THE DATE OF RECEIPT AND WHICH CANNOT PROMPTLY BE APPROVED AND PAID IN THE FULL AMOUNT CLAIMED WILL IMMEDIATELY BE REFERRED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE. THESE CLAIMS WILL BE RECORDED IN THE GENERAL ACCOUNTING OFFICE, AFTER WHICH THEY WILL BE RETURNED TO THE AGENCIES FOR PAYMENT, DENIAL, OR REFERRAL BACK TO THE GENERAL ACCOUNTING OFFICE FOR ADJUDICATION.

SEE, ALSO, 4 GAO 2020.20, WHICH PROVIDES:

A CLAIM FILED BY AN AGENT OR ATTORNEY MUST BE SUPPORTED BY A DULY EXECUTED POWER OF ATTORNEY OR OTHER DOCUMENTARY EVIDENCE OF THE AGENT'S OR ATTORNEY'S RIGHT TO ACT FOR THE CLAIMANT.

AS ABOVE STATED, THE VOUCHER (CLAIM) RECEIVED HERE WITH YOUR LETTER HAS NOT BEEN SIGNED BY LIEUTENANT KUYKENDALL, BUT HAS BEEN CERTIFIED BY A. M. MUSGRAVE AS AUTHORIZED CERTIFYING OFFICER ON BEHALF OF THE CLAIMANT. THE CIRCUMSTANCES OF THIS PARTICULAR CASE THE PROVISIONS OF THE BARRING ACT OF 1940 WILL BE APPLIED ONLY WITH RESPECT TO THE PERIOD PRECEDING FEBRUARY 20, 1953. THIS ACTION, HOWEVER, SHOULD NOT BE CONSTRUED AS ESTABLISHING A PRECEDENT AND IN ALL FUTURE CASES INVOLVING THE BARRING ACT OF 1940 THE PROVISIONS OF 4 GAO 2020.20 AND 2025.10 SHOULD BE OBSERVED.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF (1) THE ASSUMPTION CONCERNING DATE FOUND INCAPACITATED IS CORRECT AND (2) THE VOUCHER IS RESTRICTED TO THE PERIOD FEBRUARY 20, 1953, TO NOVEMBER 30, 1962, INCLUSIVE. CITATION TO THIS DECISION SHOULD BE ENTERED ON THE VOUCHER.