B-154873, DEC. 17, 1964

B-154873: Dec 17, 1964

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YOUR REQUEST WAS FORWARDED HERE UNDER SECOND ENDORSEMENT DATED JULY 30. THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR REQUEST FOR AN ADVANCE DECISION IN THIS CASE ARE AS FOLLOWS: (1) THE SUBJECT OFFICER REPORTED FOR EXTENDED ACTIVE DUTY AS LIEUTENANT (JG). 1941. (2) HE WAS PROMOTED TO THE GRADE OF LIEUTENANT FOR TEMPORARY SERVICE JUNE 18. HE WAS RELEASED FROM ACTIVE DUTY PURSUANT TO THE FINDINGS OF A NAVAL RETIRING BOARD THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY A PHYSICAL DISABILITY WHICH EXISTED PRIOR TO HIS APPOINTMENT AND WHICH WAS NOT INCURRED IN LINE OF DUTY. (4) HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVAL RESERVE ON OCTOBER 20. NO REVIEW ACTION WAS TAKEN AT THAT TIME. (6) ON NOVEMBER 9.

B-154873, DEC. 17, 1964

TO COMMANDER M. L. CONNER, SC, USN, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE NAVY:

IN LETTER OF JULY 2, 1964, YOU REQUESTED DECISION WHETHER, AS THE RESULT OF THE CORRECTIONS MADE IN JANUARY 1963 IN THE NAVAL RECORDS OF LIEUTENANT GROVER C. STARBUCK, JR., DC, USNR, RETIRED, BY THE BOARD FOR CORRECTION OF NAVAL RECORDS UNDER AUTHORITY OF 10 U.S.C. 1552, THE SUBJECT OFFICER MAY BE PAID DISABILITY RETIREMENT PAY FOR THE PERIOD AUGUST 1, 1943, TO NOVEMBER 30, 1950, INCLUSIVE. YOUR REQUEST WAS FORWARDED HERE UNDER SECOND ENDORSEMENT DATED JULY 30, 1964, FROM THE COMPTROLLER OF THE NAVY AS DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-786.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR REQUEST FOR AN ADVANCE DECISION IN THIS CASE ARE AS FOLLOWS:

(1) THE SUBJECT OFFICER REPORTED FOR EXTENDED ACTIVE DUTY AS LIEUTENANT (JG), DC, USNR, ON SEPTEMBER 10, 1941.

(2) HE WAS PROMOTED TO THE GRADE OF LIEUTENANT FOR TEMPORARY SERVICE JUNE 18, 1942.

(3) ON JULY 31, 1943, HE WAS RELEASED FROM ACTIVE DUTY PURSUANT TO THE FINDINGS OF A NAVAL RETIRING BOARD THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE BY A PHYSICAL DISABILITY WHICH EXISTED PRIOR TO HIS APPOINTMENT AND WHICH WAS NOT INCURRED IN LINE OF DUTY.

(4) HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVAL RESERVE ON OCTOBER 20, 1943, WITHOUT DISABILITY RETIREMENT PAY.

(5) IN OCTOBER 1947 HE REQUESTED REVIEW OF HIS CASE UNDER AUTHORITY OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, CH. 268, 58 STAT. 287, AS AMENDED, 38 U.S.C. 693I (1946 ED.), NOW SECTION 1554, TITLE 10, U.S.C. NO REVIEW ACTION WAS TAKEN AT THAT TIME.

(6) ON NOVEMBER 9, 1949, A NAVAL RETIRING REVIEW BOARD (ALSO KNOWN AS A "302" BOARD) CONVENED UNDER AUTHORITY OF 38 U.S.C. 693I, FOUND THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF A PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE WHILE EMPLOYED ON ACTIVE DUTY IN EXCESS OF 30 DAYS AND WHILE SERVING IN TIME OF WAR UNDER A TEMPORARY APPOINTMENT IN THE RANK OF LIEUTENANT, UNITED STATES NAVAL RESERVE.

(7) FOLLOWING THE APPROVAL BY THE PRESIDENT ON NOVEMBER 21, 1950, OF THE ACTION OF THE "302" BOARD AND THE RECOMMENDATION OF THE SECRETARY OF THE NAVY IN THE CASE, LIEUTENANT STARBUCK WAS NOTIFIED BY THE CHIEF OF NAVAL PERSONNEL IN A COMMUNICATION DATED NOVEMBER 30, 1950, AS FOLLOWS:

"YOU ARE THEREFORE ENTITLED TO RETIRED PAY OF A LIEUTENANT IN CONFORMITY WITH THE PROVISIONS OF 34 U.S.C. 417 AND 855C-1, AS AMENDED, AND 38 U.S.C. 693I, AS AMENDED.'

IT IS STATED IN YOUR LETTER THAT IN ACCORDANCE WITH DECISION OF OCTOBER 8, 1947, 27 COMP. GEN. 186--- WHEREIN IT WAS HELD THAT THE DETERMINATION OF A "302" BOARD PROPERLY SHOULD NOT BE GIVEN ANY RETROACTIVE EFFECT FOR THE PURPOSE OF PAYING DISABILITY RETIREMENT PAY -- PAYMENT OF DISABILITY RETIREMENT PAY WAS MADE TO LIEUTENANT STARBUCK FOR THE PERIOD COMMENCING DECEMBER 1, 1950. HOWEVER, IN THE NEXT PARAGRAPH OF YOUR LETTER THERE APPEARS THE FOLLOWING STATEMENT:

"* * * ALTHOUGH HE WAS ENTITLED TO RETIRED PAY FOR THE PERIOD 1 AUGUST 1943 THROUGH 30 NOVEMBER 1950 * * * PAYMENT FOR THAT PERIOD WAS NOT MADE IN THE ABSENCE OF A CLAIM FROM HIM.'

IN ADDITION IT IS FURTHER STATED IN THE LAST PARAGRAPH OF YOUR LETTER THAT:

"SINCE LT STARBUCK WAS ENTITLED TO RETIRED PAY PRIOR TO 1 DECEMBER 1950, WITHOUT THE BENEFIT OF ACTION BY THE BOARD FOR CORRECTION OF NAVAL RECORDS, BUT PAYMENT WAS BARRED BY THE ACT OF 9 OCTOBER 1940, 54 STAT. 1061, IT APPEARS THAT (THE RULE IN) 39 COMP. GEN. 178 IS APPLICABLE.'

IT IS FURTHER STATED THAT:

"HOWEVER, DOUBT ARISES IN THIS REGARD SINCE THE ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS IN LT STARBUCK'S CASE INVOLVES A CORRECTION OF RECORDS WHEREAS THE BOARD'S ACTION IN THE CASE CONSIDERED IN 39 COMP. GEN. 178 INVOLVED A RECITAL OF FACTS IN THE EXISTING RECORD.'

THE BASIS FOR THE RETROACTIVE PAYMENT OF DISABILITY RETIREMENT PAY UNDER AN APPROVED "302" BOARD DETERMINATION RESTS IN THE DECISIONS RENDERED BY THE COURT OF CLAIMS (ALL SUBSEQUENT TO OUR DECISION OF OCTOBER 8, 1947, ABOVE REFERRED TO) IN WOMER V. UNITED STATES, 114 CT.CL. 415 (1949) AND HAMRICK V. UNITED STATES, 120 CT.CL. 17 (1951), WHICH WERE FOLLOWED AND ADHERED TO BY THE COURT IN THE RAMSEY AND THOMAS CASES DECIDED NOVEMBER 4, 1952, 123 CT.CL. 504 AND 507, RESPECTIVELY.

IN CARRYING OUT ITS DUTIES, A "302" BOARD IS VESTED BY THE EXPRESS TERMS OF THE STATUTE WITH ,THE SAME POWERS AS EXERCISED BY, OR VESTED IN, THE BOARD WHOSE FINDINGS AND DECISIONS ARE BEING REVIEWED.' IN THE CASE OF MEMBERS OF THE NAVAL RESERVE THE PERTINENT PROVISIONS OF LAW THAT WERE IN EFFECT IN 1950 WHEN THE "302" BOARD PROCEEDINGS IN LIEUTENANT STARBUCK'S CASE WERE APPROVED WERE PUBLISHED IN SECTIONS 417 AND 855C-1, TITLE 34, U.S. CODE, (1946 ED., SUPP. IV). SECTION 855C-1, TITLE 34, U.S. CODE, REFLECTED THE PROVISIONS OF SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF AUGUST 27, 1940, CH. 694, 54 STAT. 864, AS AMENDED. THOSE STATUTORY PROVISIONS WERE CONSTRUED IN DECISION OF MARCH 20, 1944, 23 COMP. GEN. 700, AS AUTHORIZING PAYMENT OF DISABILITY RETIREMENT PAY, IN AN OTHERWISE PROPER CASE, NOTWITHSTANDING THE FACT THAT THE NAVAL RESERVE OFFICER CONCERNED HAD BEEN INADVERTENTLY DISCHARGED INSTEAD OF BEING PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY.

THE PROVISIONS OF 38 U.S.C. 693I (SECTION "302" BOARDS) AND 34 U.S.C. 855C-1 WERE CONSIDERED IN DECISION OF APRIL 6, 1949, 28 COMP. GEN. 557. IN THAT CASE QUESTION NUMBER (1) PRESENTED FOR DECISION WAS:

"MAY A FORMER OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WAS ENTIRELY SEPARATED FROM THE SERVICE RECEIVE RETIRED PAY PURSUANT TO THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED (38 U.S.C. 693I/? "

THE SYLLABUS IN THAT DECISION READS IMPERTINENT PART:

"AN OFFICER OF THE NAVAL RESERVE WHO WAS RELEASED FROM ACTIVE SERVICE, WITHOUT PAY, FOR PHYSICAL DISABILITY BY REASON OF THE FINDINGS OF BOARDS OF MEDICAL SURVEY AND SUBSEQUENTLY DISCHARGED, IS ENTITLED UPON REVIEW OF SAID FINDINGS UNDER THE PROVISIONS OF SECTION 302 (A) OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, TO BE RETIRED WITH PAY IF, AS A RESULT OF SUCH REVIEW, RETIREMENT IS APPROVED BY COMPETENT AUTHORITY.'

IN DECISION OF NOVEMBER 19, 1952, 32 COMP. GEN. 242, IT WAS STATED (AT PAGE 247) THAT WHILE UNDER THE CONDITIONS STIPULATED IN 34 U.S.C. 855C-1:

"* * * MEMBERS OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO SUFFER DISABILITY SHALL BE ENTITLED, AMONG OTHER THINGS, TO RECEIVE THE SAME "RETIREMENT PAY" AS MEMBERS OF THE REGULAR NAVY OR MARINE CORPS OF CORRESPONDING GRADES AND LENGTH OF SERVICE, THE RIGHT TO SUCH RETIREMENT PAY IS NOT PREDICATED ON A "RETIRED" STATUS OR THE PLACING OF THE MEMBER'S NAME ON A RETIRED LIST. ON THE CONTRARY, THE RIGHT DEPENDS ON A COMPETENT DETERMINATION OF THE ESSENTIAL FACTS BRINGING THE MEMBER WITHIN THE STIPULATED CONDITIONS AND IT HAS BEEN LONG RECOGNIZED THAT UNDER THE SAID 1940 NAVY ACT, AS WELL AS UNDER THE SIMILAR ARMY ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C., 456, MEMBERS MEETING THE STIPULATED CONDITIONS WERE ENTITLED TO THE AUTHORIZED "RETIREMENT PAY," IN THE NATURE OF A PENSION, WITHOUT REGARD TO BEING RETIRED OR EVEN REMAINING IN THE SERVICE.'

ALSO, SEE DECISIONS OF OCTOBER 6, 1954, 34 COMP. GEN. 155 AND SEPTEMBER 24, 1957, 37 COMP. GEN. 207.

IN VIEW OF THE DECISIONS OF THE COURT OF CLAIMS AND THE DECISIONS OF THIS OFFICE, ABOVE MENTIONED, IT SEEMS CLEAR THAT WHILE LIEUTENANT STARBUCK'S NAME WAS NOT PLACED ON THE PERMANENT PHYSICAL DISABILITY RETIRED LIST OF NAVAL OFFICERS AS THE RESULT OF THE "302" BOARD ACTION IN HIS CASE HE BECAME ENTITLED IN NOVEMBER 1950, THE MONTH IN WHICH THE "302" BOARD DETERMINATION WAS APPROVED, TO RECEIVE DISABILITY RETIREMENT PAY UNDER AUTHORITY OF 34 U.S.C. 855C-1, RETROACTIVELY TO AUGUST 1, 1943, THE DATE FOLLOWING HIS RELEASE FROM ACTIVE DUTY, RATHER THAN ONLY FROM DECEMBER 1, 1950, THE DATE THAT PAYMENT TO HIM OF DISABILITY RETIREMENT PAY COMMENCED.

THE RECORD SHOWS THAT ON OCTOBER 1, 1962, THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS IN LIEUTENANT STARBUCK'S CASE WERE AS FOLLOWS:

"IT IS THE DECISION OF THIS BOARD THAT THE NAVAL RECORD OF GROVER CLEVELAND STARBUCK, JR., FORMER LIEUTENANT (DC) USNR, 114052 BE CORRECTED, WHERE APPROPRIATE, TO SHOW:

"A. THAT HE WAS NOT DISCHARGED FROM THE NAVAL SERVICE ON 20 OCTOBER 1943.

"B. THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE ON 31 JULY 1943, DATE OF RELEASE FROM ACTIVE DUTY BY REASON OF HYPERTENSION, ARTERIAL; AND THAT HIS INCAPACITY IS PERMANENT AND IS THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO 10 SEPTEMBER 1941 AND SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF THIRTY (30) DAYS; THAT THIS INCAPACITY WAS INCURRED SUBSEQUENT TO 15 JUNE 1942, THE EFFECTIVE DATE OF COMMENCEMENT OF SERVICE IN THE GRADE OF LIEUTENANT (DC), TO WHICH GRADE HE HAD BEEN APPOINTED FOR TEMPORARY SERVICE IN TIME OF WAR OR NATIONAL EMERGENCY; THAT THE INCAPACITATING DISABILITY WAS INCURRED PRIOR TO 31 JULY 1943, DATE OF RELEASE FROM ACTIVE DUTY.

"C. THAT HIS NAME WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST WITH THE RANK AND PAY OF LIEUTENANT, EFFECTIVE 1 AUGUST 1943.

"RECOMMENDATION:

"THE BOARD RECOMMENDS THAT THE DEPARTMENT OF THE NAVY PAY TO GROVER CLEVELAND STARBUCK, FORMER LIEUTENANT (DC) USNR, 114 052, OR OTHER PROPER PARTY OR PARTIES, AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD ALL MONIES LAWFULLY FOUND TO BE DUE FROM THE DEPARTMENT OF THE NAVY, LESS ANY MONIES PAID BY THE VETERANS ADMINISTRATION OR THE DEPARTMENT OF THE NAVY IN CONNECTION WITH HIS SERVICE-CONNECTED DISABILITIES AND THAT THE CHIEF OF NAVAL PERSONNEL REQUEST PETITIONER TO RETURN THE CERTIFICATE OF DISCHARGE ISSUED HIM ON 20 OCTOBER 1943 AND UPON RETURN THEREOF ALL REFERENCES THERETO DELETED FROM HIS NAVAL RECORD.'

IT APPEARS THAT THE SECRETARY OF THE NAVY, ON JANUARY 8, 1963, APPROVED THE DECISION AND RECOMMENDATION OF THE CORRECTION BOARD.

IN DECISION OF SEPTEMBER 11, 1959, 39 COMP. GEN. 178, TO WHICH YOU MAKE SPECIFIC REFERENCE, IT WAS HELD THAT THE CORRECTION OF THE RECORD OF A MILITARY OFFICER UNDER AUTHORITY OF 10 U.S.C. 1552, WHICH IS ONLY AN AFFIRMATION OF THE FACTS AS THEY ALREADY EXIST IN THE OFFICER'S MILITARY RECORD RATHER THAN THE CORRECTION OF A FACTUAL SITUATION "IS WITHOUT LEGAL SIGNIFICANCE" AND THAT:

"IF THE EXISTING RECORD STATES THE ACTUAL FACTS AND THE PURPORTED CORRECTION MERELY RECITES SUCH FACTS, NO ADDITIONAL RIGHTS CAN ACCRUE AS A RESULT OF SUCH ACTION.'

LIEUTENANT STARBUCK'S SITUATION DIFFERS FROM THAT CONSIDERED IN 39 COMP. GEN. 178 (INVOLVING A MERE RECITATION OF FACTS IN THE EXISTING RECORD) IN THAT STARBUCK'S NAVAL RECORD HAS IN FACT BEEN CHANGED (1) TO SHOW THAT HE WAS NOT DISCHARGED FROM THE NAVAL SERVICE ON OCTOBER 20, 1943, AND (2) THAT HIS NAME WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST WITH THE RANK AND PAY OF LIEUTENANT EFFECTIVE AUGUST 1, 1943.

IN DECISION OF NOVEMBER 19, 1952, 32 COMP. GEN. 242, PREVIOUSLY CITED, IT WAS POINTED OUT AT PAGE 245 THAT:

"WHETHER FAVORABLE ACTION BY A 302 BOARD ENTITLES AN OFFICER TO RETIREMENT PAY RETROACTIVELY TO THE DATE OF RELEASE FROM ACTIVE DUTY IS, QUITE OBVIOUSLY, A QUESTION OF LAW. NO JURISDICTION IS CONFERRED ON 207 BOARDS (CORRECTION OF RECORDS BOARDS AS NOW AUTHORIZED IN 10 U.S.C. 1552) TO DECIDE QUESTIONS OF LAW. IF, AS A MATTER OF EXISTING LAW, SUCH OFFICERS ARE ENTITLED TO RETROACTIVE PAYMENT (AS HELD BY THE COURT OF CLAIMS IN THE HAMRICK CASE) * * * THE ACTION OF A 207 BOARD CAN ADD NOTHING TO THAT RIGHT OR DETRACT NOTHING FROM THAT RIGHT.'

THE DECISION OF JANUARY 18, 1961, HAISLIP V. UNITED STATES, 152 CT.CL. 339, INVOLVED THE 6-YEAR PERIOD OF LIMITATION PRESCRIBED IN 28 U.S.C. 2501 FOR FILING SUITS IN THE COURT OF CLAIMS. THE COURT THERE OBSERVED THAT PLAINTIFF'S SUIT "MANIFESTLY * * * IS BARRED, UNLESS THE "DECISION" OF THE CORRECTION BOARD GAVE PLAINTIFF (HAISLIP) A RIGHT HE HAD NOT HAD BEFORE.' WHILE THAT DECISION NECESSARILY EMPHASIZED THE POINT THAT NO FACT APPEARING IN HAISLIP'S MILITARY RECORD WAS CHANGED BY THE ACTION OF THE CORRECTION BOARD, IT WILL BE NOTED THAT THE CRITICAL FACTOR UNDERLYING THE CONCLUSION REACHED BY THE COURT WAS THAT HAISLIP HAD BEEN ENTITLED ALL ALONG UNDER OTHER PROVISIONS OF LAW TO THE IDENTICAL RETIREMENT PAY RIGHTS WHICH HE WAS CLAIMING IN THAT SUIT. IN SHORT, THE COURT OF CLAIMS HELD THAT, SINCE THE ACTION OF THE CORRECTION BOARD DID NOT GIVE HAISLIP A RIGHT TO RECEIVE INCREASED RETIRED PAY WHICH HE HAD NOT HAD BEFORE, HE COULD NOT ESCAPE THE 6 YEAR PERIOD OF LIMITATION PRESCRIBED IN 28 U.S.C. 2501. THAT SAME RULE IS FOR APPLICATION IN THE PRESENT CASE WITH RESPECT TO THE PROVISIONS OF THE 10-YEAR BARRING ACT, 31 U.S.C. 71A, 237. THE CORRECTIONS MADE IN LIEUTENANT STARBUCK'S NAVAL RECORDS BY THE CORRECTION BOARD TO SHOW THAT HE WAS NOT DISCHARGED FROM THE NAVAL SERVICE IN OCTOBER 1943 AND THAT HIS NAME WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST OF NAVAL OFFICERS EFFECTIVE AUGUST 1, 1943, DID NOT CREATE A NEW RIGHT TO RECEIVE DISABILITY RETIREMENT PAY OR ONE WHICH HE DID NOT HAVE BEFORE THE CORRECTION OF HIS NAVAL RECORDS, SINCE HE HAD BECOME ENTITLED TO THE VERY SAME DISABILITY RETIREMENT PAY BENEFITS FOR THE SAME PERIOD AND UNDER THE SAME PROVISIONS OF LAW(34 U.S.C. 855C-1) UPON THE APPROVAL IN NOVEMBER 1950 OF THE SECTION "302" BOARD DETERMINATIONS AND RECOMMENDATION IN HIS CASE.

ACCORDINGLY, WHILE LIEUTENANT STARBUCK'S NAVAL RECORDS HAVE BEEN CHANGED, HIS DISABILITY RETIREMENT PAY STATUS HAS NOT BEEN AFFECTED BY THE ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS IN HIS CASE AND THEREFORE THE 10-YEAR BARRING ACT, 31 U.S.C. 71A, 237, BARS FAVORABLE ACTION IN THE MATTER.