B-154721, OCTOBER 8, 1964, 44 COMP. GEN. 190

B-154721: Oct 8, 1964

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WHO IS SHOWN TO HAVE RECEIVED A PAYROLL COMPUTING FORM INDICATING THAT HIS TAXABLE RETIRED PAY WAS BASED ON NON-DISABILITY RETIREMENT MAY HAVE THE PAYROLL INFORMATION REGARDED AS OF SUCH CHARACTER AS TO MISLEAD THE MEMBER INTO INACTION RESPECTING THE ELECTION SIMILAR TO THE RULE IN AKOL. WILL BE CONSIDERED AN ELECTION. FOR BENEFITS UNDER SECTION 402 OF THE ACT AND ADJUSTMENT IN THE RETIRED PAY WILL BE MADE UPON RECEIPT OF A PERCENTAGE OF DISABILITY DETERMINATION FROM THE DEPARTMENT OF THE NAVY. 1964: REFERENCE IS MADE TO THE REQUEST YOUR ATTORNEYS UNDER DATE OF JUNE 12. FOR REVIEW OF YOUR CLAIM WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION ON JUNE 23. FOR AN INCREASE IN RETIRED PAY AND A MOTION TO DISMISS THAT SUIT WAS DELIVERED TO THE DEPARTMENT OF JUSTICE BY YOUR ATTORNEYS IN MARCH 1960.

B-154721, OCTOBER 8, 1964, 44 COMP. GEN. 190

PAY - RETIRED - DISABILITY - RE-RETIREMENT - ELECTION REQUIREMENT - GENERAL RULE A RETIRED NAVY MEMBER WHO DID NOT ELECT DISABILITY RETIRED PAY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, WITHIN THE 5-YEAR PERIOD FOR SUCH ELECTIONS BY MEMBERS FOUND PHYSICALLY DISABLED AT THE TIME OF RELEASE FROM ACTIVE DUTY AFTER RETIREMENT, BUT WHO IS SHOWN TO HAVE RECEIVED A PAYROLL COMPUTING FORM INDICATING THAT HIS TAXABLE RETIRED PAY WAS BASED ON NON-DISABILITY RETIREMENT MAY HAVE THE PAYROLL INFORMATION REGARDED AS OF SUCH CHARACTER AS TO MISLEAD THE MEMBER INTO INACTION RESPECTING THE ELECTION SIMILAR TO THE RULE IN AKOL, ET AL. V. UNITED STATES CT.CL. NO. 564-57, DECIDED MAY 15, 1964, AND, THEREFORE, THE INCREASED RETIRED PAY CLAIM SUBMITTED ON BEHALF OF THE WIDOW OF THE DECEASED MEMBER ON JUNE 12, 1950, WILL BE CONSIDERED AN ELECTION, WITHIN A REASONABLE TIME AFTER THE MISINFORMATION, FOR BENEFITS UNDER SECTION 402 OF THE ACT AND ADJUSTMENT IN THE RETIRED PAY WILL BE MADE UPON RECEIPT OF A PERCENTAGE OF DISABILITY DETERMINATION FROM THE DEPARTMENT OF THE NAVY.

TO CARRIE N. COBB, OCTOBER 8, 1964:

REFERENCE IS MADE TO THE REQUEST YOUR ATTORNEYS UNDER DATE OF JUNE 12, 1964, FOR REVIEW OF YOUR CLAIM WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION ON JUNE 23, 1960, FOR INCREASED RETIRED PAY IN THE CASE OF YOUR HUSBAND, THE LATE RUSH C. COBB, USN, RETIRED, BASED ON DECISIONS IN THE CASES OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), TRAVIS V. UNITED STATES, 137 CT.CL. 148 (1957), AND BAILEY V. UNITED STATES, 134 CT.CL. 471 (1956).

THE DECEDENT FILED IN THE COURT OF CLAIMS A PETITION, RUSH C. COBB, ET AL. V. UNITED STATES, CT.CL. NO. 430-56, FOR AN INCREASE IN RETIRED PAY AND A MOTION TO DISMISS THAT SUIT WAS DELIVERED TO THE DEPARTMENT OF JUSTICE BY YOUR ATTORNEYS IN MARCH 1960, TO BE HELD IN ESCROW PENDING SATISFACTORY SETTLEMENT OF THE CLAIM FILED IN YOUR BEHALF IN OUR OFFICE. WE ARE ADVISED BY YOUR ATTORNEYS THAT THE MOTION TO DISMISS IS STILL BEING HELD BY THE DEPARTMENT OF JUSTICE.

THE ADJUSTMENT IN RETIRED PAY CLAIMED WAS AUTHORIZED ONLY FOR PERSONS WHO WERE RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, AND ACCRUED ON THE BASIS OF AN ELECTION FILED BY THE RETIRED MEMBER PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, 823, 37 U.S.C. 281 (1952 ED.). YOUR CLAIM, RECEIVED HERE JUNE 12, 1959, FOR RETIRED PAY UNDER SECTIONS 202 (37 U.S.C. 233), 402 (37 U.S.C. 272 (1952 ED.) (, AND 411 OF THE CAREER COMPENSATION ACT WAS DISALLOWED FOR THE REASON THAT THE OFFICIAL RECORDS SHOWED THAT MR. COBB HAD NOT BEEN RETIRED FOR PHYSICAL DISABILITY BUT THAT HE HAD BEEN TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE NAVY ON MAY 1, 1940, UPON COMPLETION OF 30 YEARS OF SERVICE, ACTIVE AND INACTIVE, IN ACCORDANCE WITH THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1175, 34 U.S.C. 854C (1952 ED.).

IN THE LETTER OF JUNE 12, 1964, YOUR CLAIM WAS RESTATED AS BEING FOUNDED UPON THE ,RE-RETIREMENT" DOCTRINE SET FORTH IN THE CASE OF WILSON V. UNITED STATES, 159 CT.CL. 80, BY REASON OF THE DECEDENT'S ARTHRITIC CONDITION. IN SUPPORT OF THAT THEORY THERE WAS FURNISHED A COPY OF THE REPORT OF MEDICAL SURVEY DATED AUGUST 20, 1943, WHEREIN THE BOARD CONSIDERING MR. COBB'S PHYSICAL CONDITION FOUND HIM UNFIT FOR SERVICE BY REASON OF ARTHRITIS AND RECOMMENDED HIS RELEASE TO AN INACTIVE STATUS. WAS RELEASED ON SEPTEMBER 23, 1943, AND RETURNED TO THE RETIRED LIST OF THE NAVY. IT IS FURTHER CONTENDED THAT THE DECEDENT WAS MISADVISED BY THE DEPARTMENT OF THE NAVY WITH RESPECT TO HIS RIGHTS AS A MEMBER WHO HAD BEEN "RE-RETIRED" FOR PHYSICAL DISABILITY AND THAT UNDER THE DECISION OF MAY 15, 1964, IN THE CASE OF AKOL, ET AL. (BRAYTON W. MANDIGO, PLAINTIFF NO. 16) V. UNITED STATES, CT.CL. NO. 564-57,"THE DECEDENT IS NOW ENTITLED TO AN OPPORTUNITY TO ELECT TO RECEIVE DISABILITY RETIRED PAY * * *.'

IN SUPPORT OF YOUR CONTENTION THAT THE DECEDENT WAS MISADVISED THERE WAS FURNISHED A COPY OF A PAYROLL COMPUTING FORM DATED OCTOBER 18, 1951, SHOWING THAT HIS RETIRED PAY WAS SUBJECT TO DEDUCTION FOR FEDERAL INCOME TAX BECAUSE HE WAS NOT PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY. IN THE AKOL CASE, THE PLAINTIFF, MANDIGO, RECEIVED A SIMILAR PAYROLL COMPUTING FORM SHOWING TAXABLE RETIRED PAY BASED ON NONDISABILITY RETIREMENT. SINCE HE, LIKE MR. COBB, HAD BEEN FOUND TO BE SUFFERING FROM A PHYSICAL DISABILITY AT THE TIME OF HIS RELEASE FROM A TOUR OF ACTIVE DUTY AFTER RETIREMENT, HE WAS REGARDED BY THE COURT AS "RE-RETIRED" FOR PHYSICAL DISABILITY AND THUS ENTITLED TO MAKE AN ELECTION UNDER SECTION 411 OF THE CAREER COMPENSATION ACT.

THE STATUTORY PERIOD FOR THE FILING OF A SECTION 411 ELECTION ENDED OCTOBER 1, 1954, 5 YEARS AFTER THE EFFECTIVE DATE OF THE ACT. IN THE CASE OF PHELAN, ET AL. (EARL E. COX, PLAINTIFF NO. 7) V. UNITED STATES 146 CT.CL. 218, 222 (1959), THE COURT HELD THAT COX HAD BEEN MISADVISED BY THE DEPARTMENT OF THE ARMY AS TO THE CORRECT RATES OF DISABILITY RETIRED PAY HE WOULD BE ENTITLED TO RECEIVE UNDER A SECTION 411 ELECTION AND, BECAUSE OF THAT ERRONEOUS INFORMATION, HIS FAILURE TO ELECT WITHIN THE 5-YEAR PERIOD WOULD NOT BAR HIM FROM RECEIVING THE BENEFITS OF THE CAREER COMPENSATION ACT. SIMILARLY IN THE CASE OF AKOL, ET AL. (CLINTON M. STANFORD, PLAINTIFF NO. 27) V. UNITED STATES, CT.CL. NO. 564-57, DECIDED APRIL 17, 1964, THE COURT HELD THAT THE PLAINTIFF WAS NOT BARRED BY THE 5- YEAR LIMITATIONS BECAUSE THE SERVICE HAD FURNISHED HIM WITH POSITIVE MISINFORMATION CONCERNING HIS ELECTION RIGHTS.

IN THE AKOL (MANDIGO) DECISION OF MAY 15, 1964, 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 WILL FOLLOW THE RULING IN THE AKOL (MANDIGO) CASE IN THE SETTLEMENT OF SIMILAR CLAIMS WHEREIN THE MEMBER, WITHIN A REASONABLE TIME AFTER RECEIPT OF THE MISINFORMATION, ELECTED SECTION 402 BENEFITS. COMPARE B-110493 DATED TODAY.

IN BOTH THE MANDIGO AND STANFORD DECISIONS THE COURT SPECIFIED THAT A REASONABLE TIME SHOULD BE ALLOWED TO PERMIT THE PLAINTIFF 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 "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 SECTION 414 OF THE CAREER COMPENSATION ACT, 10 U.S.C. 1216), 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 THE MEMBER'S (OR IN YOUR CASE, THE DECEDENT-S) DISABILITY AT THE TIME OF HIS LAST RELEASE OR "RE- RETIREMENT.'

SINCE YOUR CLAIM RECEIVED HERE ON JUNE 12, 1959, MAY BE CONSIDERED TO BE AN ELECTION THE BENEFITS OF SECTION 402 OF THE CAREER COMPENSATION ACT, OUR CLAIMS DIVISION IS BEING INSTRUCTED TODAY THAT UPON RECEIPT FROM YOU OR FROM THE DEPARTMENT OF THE NAVY OF THE NECESSARY INFORMATION SHOWING MR. COBB'S PERCENTAGE OF DISABILITY AS OF SEPTEMBER 23, 1943, AND AN ELECTION FILED BY YOU ON BEHALF OF THE DECEDENT UNDER SECTION 402 SHOWING WHETHER CLAIM IS MADE ON A YEARS OF SERVICE OR PERCENTAGE OF DISABILITY BASIS, THE ADJUSTMENT IN RETIRED PAY CLAIMED FOR THE PERIOD OCTOBER 1, 1949, THROUGH JANUARY 18, 1957, THE DATE OF YOUR HUSBAND'S DEATH, MAY BE ALLOWED, IF ACCEPTABLE TO YOU, FOR THE PROPER AMOUNT FOUND DUE.