B-154509, OCT. 8, 1964

B-154509: Oct 8, 1964

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CLARENCE WILSON: REFERENCE IS MADE TO THE LETTER OF JUNE 15. ON WHICH YOU WERE ALLOWED $28.56. 137 CT.CL. 710 (1957) WAS DISALLOWED FOR THE REASON THAT THE DISABILITY FOR WHICH YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST ON JANUARY 1. WAS NOT INCURRED WHILE YOU WERE SERVING ON ACTIVE DUTY. THE REQUEST FOR RECONSIDERATION IS BASED ON THE THEORY THAT YOUR RELEASE ON APRIL 19. IN SUPPORT OF THESE CONTENTIONS THERE WAS FURNISHED A COPY OF A REPORT OF MEDICAL SURVEY DATED FEBRUARY 8. SHOWING THAT YOU WERE UNFIT FOR SERVICE BY REASON OF ASTHMA INCURRED IN LINE OF DUTY AND A COPY OF A LETTER ADDRESSED TO YOU FROM THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF SEPTEMBER 28. STATING THAT YOU WERE NOT ELIGIBLE TO ELECT DISABILITY RETIRED PAY UNDER SECTION 411.

B-154509, OCT. 8, 1964

TO MR. CLARENCE WILSON:

REFERENCE IS MADE TO THE LETTER OF JUNE 15, 1964, FROM YOUR ATTORNEYS REQUESTING RECONSIDERATION OF THE SETTLEMENT VOUCHER ISSUED IN YOUR FAVOR BY OUR CLAIMS DIVISION ON JANUARY 12, 1962, ON WHICH YOU WERE ALLOWED $28.56, REPRESENTING AN ADJUSTMENT IN RETIRED PAY FOR THE PERIOD JULY 13, 1957, TO DECEMBER 31, 1957, INCLUSIVE, BASED ON THE COURT OF CLAIMS DECISION OF MAY 4, 1960, IN THE CASE OF FAGAN,ET AL. (GOVER) V. UNITED STATES, 149 CT.CL. 716. ON THAT SETTLEMENT YOUR ALTERNATIVE CLAIM FOR ADJUSTMENT IN RETIRED PAY BASED ON THE DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957) WAS DISALLOWED FOR THE REASON THAT THE DISABILITY FOR WHICH YOU WERE TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST ON JANUARY 1, 1940, WAS NOT INCURRED WHILE YOU WERE SERVING ON ACTIVE DUTY.

THE REQUEST FOR RECONSIDERATION IS BASED ON THE THEORY THAT YOUR RELEASE ON APRIL 19, 1945, FROM A TOUR OF ACTIVE DUTY AFTER RETIREMENT CONSTITUTED A "RE-RETIREMENT" FOR PHYSICAL DISABILITY INCURRED DURING THAT TOUR OF ACTIVE DUTY AND THAT YOU DID NOT FILE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 823, WITHIN THE STATUTORY 5-YEAR PERIOD BECAUSE OF ERRONEOUS INFORMATION FURNISHED YOU BY THE DEPARTMENT OF THE NAVY. IN SUPPORT OF THESE CONTENTIONS THERE WAS FURNISHED A COPY OF A REPORT OF MEDICAL SURVEY DATED FEBRUARY 8, 1945, APPROVED BY THE BUREAU OF MEDICINE AND SURGERY ON FEBRUARY 24, 1945, SHOWING THAT YOU WERE UNFIT FOR SERVICE BY REASON OF ASTHMA INCURRED IN LINE OF DUTY AND A COPY OF A LETTER ADDRESSED TO YOU FROM THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF SEPTEMBER 28, 1951, STATING THAT YOU WERE NOT ELIGIBLE TO ELECT DISABILITY RETIRED PAY UNDER SECTION 411.

IN VIEW OF THE EVIDENCE FURNISHED WITH THE LETTER OF JUNE 15, 1964, IT APPEARS THAT YOUR SITUATION COMES WITHIN THE PURVIEW OF THE COURT OF CLAIMS DECISION OF NOVEMBER 7, 1962, IN THE CASES OF AFLAGUE, ET AL. (FORSTER) V. UNITED STATES, CT.CL. NO. 212-56, COBB, ET AL. (ELLIS) V. UNITED STATES, CT.CL. NO. 430-56, AND WILSON V. UNITED STATES, CT.CL. NO. 465-59, AS A MEMBER WHO WAS "RE-RETIRED" ON APRIL 19, 1945, FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY AND WAS ELIGIBLE TO ELECT UNDER SECTION 411 OF THE CAREER COMPENSATION ACT. SEE 43 COMP. GEN. 6. YOUR REQUEST FOR RECONSIDERATION IS BASED ON THE DECISION OF MAY 15, 1964, IN THE CASE OF AKOL, ET AL. (MANDIGO) V. UNITED STATES, CT.CL. NO. 564-57, IN WHICH THE COURT EXPANDED ITS PREVIOUS DECISIONS BY HOLDING THAT THE MISINFORMATION, WHICH RELIEVES A MEMBER OF THE REQUIREMENT FOR FILING A SECTION 411 ELECTION WITHIN THE STATUTORY PERIOD, NEED NOT BE FURNISHED BY THE DEPARTMENT IN CONNECTION WITH AN ELECTION, BUT IT IS SUFFICIENT IF THE INFORMATION WAS INCORRECT AND WAS OF SUCH CHARACTER AS TO MISLEAD THE MEMBER INTO INACTION BY CAUSING HIM TO CONCLUDE THAT HE HAD NO RIGHT TO ELECT. OUR OFFICE IS FOLLOWING THE RULING IN THE AKOL (MANDIGO) CASE. SEE B-154721, DATED TODAY.

IN THE MANDIGO DECISION THE COURT DIRECTED THAT THE PLAINTIFF BE ALLOWED A REASONABLE TIME TO APPLY TO THE PROPER BOARD OR AGENCY FOR A DETERMINATION OF THE PERCENTAGE OF HIS DISABILITY AS OF THE DATE HE WAS LAST RELEASED OR "RE-RETIRED.' IT HAS BEEN SUGGESTED BY YOUR ATTORNEYS THAT A CONFERENCE WITH OUR OFFICE BE ARRANGED TO DISCUSS THE PROCEDURE TO BE EMPLOYED IN OBTAINING THE DISABILITY PERCENTAGE RATING IN CASES OF THIS TYPE. HOWEVER, SINCE JURISDICTION OVER DETERMINING PERCENTAGE OF DISABILITY IS GIVEN EXCLUSIVELY TO THE SECRETARY OF THE DEPARTMENT CONCERNED (SEE SECTIONS 402 AND 414 OF THE CAREER COMPENSATION ACT), IT APPEARS THAT ANY ACTION ON OUR PART IN THIS REGARD WOULD BE UNNECESSARY. AN APPLICATION TO THE SECRETARY OF THE NAVY FILED BY OR ON BEHALF OF THE CLAIMANT IN EACH CASE SHOULD RESULT IN A DETERMINATION OF THE PERCENTAGE OF HIS DISABILITY AT THE TIME OF HIS LAST RELEASE OR "RE-RETIREMENT.'

THE MISINFORMATION WAS FURNISHED TO YOU UNDER DATE OF SEPTEMBER 28, 1951, AND A CLAIM FILED ON YOUR BEHALF FOR SECTION 402 RETIREMENT BENEFITS WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 8, 1961, WITHIN TEN YEARS AFTER RECEIPT OF SUCH MISINFORMATION. COMPARE DECISION OF TODAY, B- 110493, IN THE CASE OF JOHN SILAS UPTON. OUR CLAIMS DIVISION IS BEING INSTRUCTED TODAY THAT UPON RECEIPT FROM YOU OR FROM THE DEPARTMENT OF THE NAVY OF INFORMATION SHOWING A DETERMINATION AS TO YOUR PERCENTAGE OF DISABILITY AS OF APRIL 19, 1945, AND AN ELECTION FILED BY YOU UNDER SECTION 402 SHOWING WHETHER CLAIM IS MADE ON A YEARS OF SERVICE OR PERCENTAGE OF DISABILITY BASIS, A SETTLEMENT MAY BE ISSUED IN YOUR FAVOR FOR THE DIFFERENCE BETWEEN THE ADJUSTMENT IN RETIRED PAY CLAIMED UNDER THE SELIGA DECISION FOR THE PERIOD JULY 13, 1957, TO DECEMBER 31, 1957, INCLUSIVE, AND THE $28.56 PREVIOUSLY ALLOWED.