B-151044, APRIL 12, 1963, 42 COMP. GEN. 580

B-151044, APRIL 12, 1963, 42 COMP. GEN. 580

MILITARY PERSONNEL - RECORD CORRECTION - RELEASE OF GOVERNMENT FROM ADDITIONAL CLAIMS THE ACCEPTANCE BY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES OF AN ADJUSTMENT OF ACTIVE DUTY PAY UNDER MILITARY RECORDS CORRECTED TO SHOW THAT HIS REDUCTIONS IN GRADE WERE VOID AND WITHOUT FORCE DOES NOT BAR CONSIDERATION OF A CLAIM FOR THE ADJUSTMENT OF RETIRED PAY BASED ON THE HIGHEST GRADE THAT THE MEMBER HAD HELD, 10 U.S.C. 1552 (C), WHICH PROVIDES THAT ACCEPTANCE OF A SETTLEMENT OF AMOUNTS FOUND DUE AS A RESULT OF A CORRECTION OF A MILITARY RECORD FULLY SATISFIES THE CLAIM HAVING NO APPLICATION, THE CORRECTION OF THE MEMBER'S MILITARY RECORDS PERTAINING TO ACTIVE DUTY PAY AND NOT AFFECTING HIS RETIRED PAY, AND WHILE THE CLAIM FOR INCREASED RETIRED PAY IS RELATED TO THE CORRECTION ACTION, THE MEMBER'S RETIREMENT ORDERS HAVING BEEN CORRECTED TO CONFORM TO THE CORRECTED RECORD, IT IS A NEW CLAIM WHICH WAS NOT CONSIDERED BY THE CORRECTION BOARD NOR COVERED BY THE SETTLEMENT ACCEPTED BY THE MEMBER.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, APRIL 12, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 8, 1963, FORWARDED UNDER D.O. NO. 697, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A VOUCHER TOTALING $1,311.62, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY OF A PRIVATE (E-2) AND THAT OF A SPECIALIST SECOND CLASS (E-5), FOR THE PERIOD MARCH 20, 1958, THROUGH DECEMBER 31, 1962, IN THE CASE OF WILBERT WATSON, RA 52 1089 1010. YOU STATE THAT WATSON WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF PRIVATE (E-2) EFFECTIVE MARCH 20, 1958, AFTER 6 YEARS, 7 MONTHS AND 6 DAYS OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY PURPOSES, BY REASON OF A DISABILITY RATING OF 40 PERCENT UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, SECTIONS 1202 AND 1373, AND THAT RETIRED PAY WAS PAID BASED ON THE MINIMUM RATE OF 50 PERCENT OF THE ACTIVE DUTY PAY OF PRIVATE (E-2) FOR THE PERIOD MARCH 20, 1958, THROUGH MARCH 31, 1961. RETIRED PAY WAS WAIVED IN FAVOR OF COMPENSATION IN A GREATER AMOUNT FROM THE VETERANS ADMINISTRATION EFFECTIVE APRIL 1, 1961, AND RETIRED PAY HAS NOT BEEN PAID SINCE THAT DATE.

IT APPEARS THAT DUE TO A CONCLUSION BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS ON JANUARY 21, 1959, THAT HIS REDUCTIONS IN GRADE WERE THE RESULT OF A SERVICE CONNECTED MENTAL CONDITION, WATSON'S MILITARY RECORDS WERE CORRECTED UNDER THE PROVISIONS OF 10 U.S.C. 1552 TO SHOW THAT HIS REDUCTION FROM SPECIALIST SECOND CLASS (E-5) TO SPECIALIST THIRD CLASS (E-4) ON FEBRUARY 17, 1956, AND FURTHER REDUCTIONS FROM SPECIALIST THIRD CLASS (E-4) TO PRIVATE FIRST CLASS (E 3) AND FROM PRIVATE FIRST CLASS (E- 3) TO PRIVATE (E-2) ON NOVEMBER 3 AND 19, 1956, WERE VOID AND WITHOUT FORCE OR EFFECT. YOU STATE FURTHER THAT THE CORRECTION DID NOT APPEAR TO AFFECT RETIRED PAY; THAT AMENDED RETIREMENT ORDERS WERE NOT ISSUED AT THAT TIME; AND THAT HIS ACTIVE DUTY MILITARY RECORDS WERE ADJUSTED AND RECOMPUTATION OF ACTIVE DUTY PAY WAS BASED ON THE HIGHER GRADE. WHILE A RECOMPUTATION OF RETIRED PAY WAS NOT THEN MADE, IT IS SHOWN THAT ADJUSTMENT OF ACTIVE DUTY PAY COVERING THE PERIOD FEBRUARY 17,1956, THROUGH MARCH 19, 1958, WAS OFFERED AND SETTLEMENT WAS ACCEPTED BY HIM ON JUNE 29, 1959. IT IS FURTHER STATED THAT SUBSEQUENT TO ACCEPTING SETTLEMENT OF ACTIVE DUTY PAY ADJUSTMENT, HE HAS MADE NUMEROUS CLAIMS FOR ADDITIONAL MONEY HE BELIEVES DUE HIM AND HE WAS INFORMED THAT RETIRED PAY WAS BEING PAID IN THE MAXIMUM AMOUNT ALLOWABLE LESS VETERANS ADMINISTRATION COMPENSATION BASED ON INFORMATION FURNISHED BY THE ADJUTANT GENERAL. UNDER DATE OF JULY 25, 1960, HIS RETIREMENT ORDERS OF MARCH 12, 1958, DIRECTING HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MARCH 20, 1958, WERE AMENDED TO STATE THAT HIS CURRENT AND RETIRED GRADE WAS SPECIALIST SECOND CLASS, E-5.

10 U.S.C. 1552 (C) RELATING TO PAYMENTS OF AMOUNTS FOUND DUE AS A RESULT OF CORRECTIONS OF MILITARY RECORDS PROVIDES THAT "A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED.' IF A CLAIMANT FAILS TO ASCERTAIN THE AMOUNT DUE AND ACCEPTS A LESSER AMOUNT THAN IS PAYABLE UNDER APPLICABLE PROVISIONS OF LAW, SUCH ACCEPTANCE BARS CONSIDERATION OF A SUBSEQUENT CLAIM FOR ANY ADDITIONAL AMOUNT WHICH COULD HAVE BEEN MADE. 40 COMP. GEN. 116. HOWEVER, THE CORRECTIONS MADE IN WATSON'S RECORD RELATED ENTIRELY TO THE PERIOD HE WAS ON ACTIVE DUTY. HIS ACCEPTANCE OF ADDITIONAL ACTIVE DUTY PAY IN FULL SATISFACTION OF HIS ,CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF MY MILITARY RECORDS" INVOLVED THAT MATTER AND NOTHING ELSE, SINCE THE CORRECTION BOARD DID NOT CONSIDER HIS RIGHT TO RETIRED PAY AND MADE NO RECOMMENDATIONS WITH RESPECT THERETO.

ALTHOUGH THE ORDERS OF MARCH 12, 1958, WERE CORRECT WHEN ISSUED, THEY WERE IN CONFLICT WITH THE CORRECTED RECORD. WE DO NOT QUESTION THE PROPRIETY OF THE ACTION TAKEN BY THE ORDER ISSUING AUTHORITY IN AMENDING WATSON'S RETIREMENT ORDERS TO CONFORM TO THE FACTS SHOWN IN THE CORRECTED RECORD. WHILE HIS CLAIM FOR INCREASED RETIRED PAY IS RELATED TO THE CORRECTION ACTION TAKEN, IT IS A NEW CLAIM NOT CONSIDERED BY THE CORRECTION BOARD AND RELATES TO A PERIOD NOT COVERED BY THE SETTLEMENT ACCEPTED BY HIM ON JUNE 29, 1959.

ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.