B-151296, NOV. 9, 1964

B-151296, NOV. 9, 1964

TO KING AND KING:

BY LETTER DATED JUNE 9, 1964, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF MAY 9, 1963, B-151296, IN THE CASE OF FLOYD PARKS, A RETIRED ENLISTED MAN OF THE UNITED STATES NAVY. THE DECISION OF MAY 9, 1963, SUSTAINED THE ACTION TAKEN IN CLAIMS DIVISION SETTLEMENT DATED APRIL 2, 1963, DISALLOWING THE SUBJECT MAN'S CLAIM WHICH HAD BEEN PRESENTED HERE IN YOUR LETTER OF JANUARY 29, 1963, FOR INCREASED RETIRED PAY COMMENCING JANUARY 1, 1953, COMPUTED IN ACCORDANCE WITH THE HOLDING IN SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957).

IN YOUR LETTER OF JUNE 9, 1964, YOU AGAIN REFER TO THE "RETIREMENT" CONCEPT REFLECTED IN THE COURT OF CLAIMS DECISION IN THE CASE OF FRANK BRIGGS WILSON V. UNITED STATES, CT.CL. NO. 465-59, DECIDED NOVEMBER 7, 1962. YOU EXPRESS THE VIEW THAT MR. PARKS WAS "RE-RETIRED" UPON HIS RELEASE FROM ACTIVE DUTY SEPTEMBER 15, 1945, FOR PHYSICAL DISABILITY AND HENCE IS TO BE CONSIDERED AS WITHIN THE SCOPE OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823, 37 U.S.C. 281 (1946 ED., SUPP. III).

THE RECORD WITH RESPECT TO MR. PARKS (COPY OF BUREAU OF MEDICINE AND SURGERY LETTER OF APRIL 8, 1946, FORWARDED AS AN ENCLOSURE WITH YOUR LETTER OF APRIL 5, 1963) ESTABLISHES THAT HE WAS RELEASED TO INACTIVE DUTY SEPTEMBER 15, 1945, AS "PERMANENTLY UNFIT FOR FURTHER SERVICE BY REASON OF PHYSICAL DISABILITY.' PARKS' RETIRED STATUS THEREFORE PROPERLY MAY BE VIEWED AS COMING UNDER THE RULE OF THE WILSON CASE INSOFAR AS PLACING HIM WITHIN THE PURVIEW OF SECTION 411OF THE 1949 LAW IS CONCERNED.

THE RECORD FURTHER DISCLOSES THAT PARKS DID NOT MAKE AN ELECTION OF OPTIONS BEFORE MIDNIGHT OCTOBER 1, 1954, THE EXPIRATION OF THE 5-YEAR PERIOD OF LIMITATION PRESCRIBED IN SECTION 411. IT IS YOUR CONTENTION IN THIS RESPECT THAT PARKS' FAILURE TO MAKE SUCH AN ELECTION WAS BECAUSE HE WAS "MISADVISED" BY THE DEPARTMENT OF THE NAVY AS TO HIS SECTION 411 RETIRED STATUS. IN THAT CONNECTION YOU ENCLOSED WITH YOUR LETTER OF JUNE 9, 1964, A COPY OF A PAYROLL COMPUTATION FORM DATED OCTOBER 20, 1951, ADDRESSED TO MR. PARKS IN WHICH HE WAS ADVISED THAT HE HAD NOT BEEN PLACED ON THE RETIRED LIST "FOR PHYSICAL DISABILITY INCURRED AS A RESULT OF ACTIVE SERVICE.' AS TO SUCH INFORMATION YOU REFER TO THE DECISION RENDERED BY THE COURT OF CLAIMS MAY 15, 1964, IN THE CASE OF MANDIGO, PLAINTIFF NO. 16, IN AKOL. ET AL. V. UNITED STATES, CT.CL. NO. 564-57, WHEREIN IT WAS HELD, SOLELY ON THE BASIS OF SIMILAR INFORMATION ALSO APPEARING ON A PAYROLL COMPUTATION FORM THAT HAD BEEN FURNISHED TO MANDIGO, THAT SUCH INFORMATION HAD MISLED HIM INTO INACTION BY CAUSING HIM TO CONCLUDE THAT HE HAD NO RIGHT TO A SECTION 411 ELECTION. OUR OFFICE IS FOLLOWING THE RULE IN THE AKOL (MANDIGO) CASE. SEE B-154721, OCTOBER 8, 1964, IN THE CASE OF RUSH C. COBB.

IT APPEARS THAT UNDER AKOL (MANDIGO) DECISION PARKS WAS "MISINFORMED" BY THE INFORMATION STATED IN THE PAYROLL COMPUTATION FORM DATED OCTOBER 20, 1951. AS PREVIOUSLY MENTIONED, HIS CLAIM FOR INCREASED RETIRED PAY UNDER THE SELIGA RULE WAS FIRST PRESENTED TO THIS OFFICE IN YOUR LETTER OF JANUARY 29, 1963. IN DECISION OF OCTOBER 8, 1964, B-110493, IN THE CASE OF JOHN SILAS UPTON, YOU WERE ADVISED IN PERTINENT PART, AS FOLLOWS:

"THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, GENERALLY BARS CONSIDERATION OF CLAIMS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. IN THE ABSENCE OF A PRECEDENT ESTABLISHING A DEFINITE PERIOD FOR TAKING ACTION TO ESTABLISH A PROPER ELECTION, A SIMILAR 10-YEAR PERIOD WILL BE APPLIED BY THIS OFFICE AS A REASONABLE LENGTH OF TIME AFTER RECEIPT OF MISINFORMATION DURING WHICH ELECTIONS MAY BE FILED. UNDER THE THEORY ADOPTED BY THE COURT, THE INFORMATION FURNISHED IN OCTOBER 1951 EXEMPTED YOU FOR THE REQUIREMENT OF MAKING AN ELECTION BY OCTOBER 1, 1954. YOUR RIGHT TO MAKE AN ELECTION BASED ON THE FACT THAT THE INFORMATION FURNISHED YOU WERE ERRONEOUS ACCRUED IN OCTOBER 1951 AND IT APPEARS THAT YOU HAD NOT EXERCISED YOUR RIGHT TO FILE AN ELECTION WITH THE DEPARTMENT OF THE NAVY OF THE SECTION 402 BENEFITS YOU NOW CLAIM PRIOR TO JANUARY 28, 1963, THE DATE OF YOUR ATTORNEY'S LETTER TO THIS OFFICE. SINCE MORE THAN 10 YEARS AFTER THE RIGHT TO MAKE THAT ELECTION ACCRUED HAD EXPIRED BEFORE JANUARY 28, 1963, WE CONCLUDE THAT YOU DID NOT FILE A TIMELY ELECTION OF SECTION 402 BENEFITS.'

THE RULE ABOVE STATED IN THE UPTON CASE IS APPLICABLE HERE. SINCE MORE THAN 10 YEARS AFTER PARKS' RIGHT TO MAKE THAT ELECTION ACCRUED HAD EXPIRED BEFORE JANUARY 29, 1963, WE MUST CONCLUDE THAT THERE HAS NOT BEEN A TIMELY ELECTION UNDER SECTION 411 OF THE 1949 LAW. ACCORDINGLY, THE SETTLEMENT OF APRIL 2, 1963, DISALLOWING PARKS' CLAIM IS AGAIN SUSTAINED.