B-156476, MAR. 13, 1969

B-156476: Mar 13, 1969

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FC: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 6. BASED ON HIS DISABILITIES INCURRED WHILE ON ACTIVE DUTY WHICH WERE RATED AT 90 PERCENT WHILE HE WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST. THE CLAIM WAS PREDICATED ON THE PREMISE THAT THE FINDINGS AND RECOMMENDATIONS OF THE VARIOUS BOARDS INVOLVED THAT HE WAS FIT FOR ACTIVE MILITARY DUTY WHICH RESULTED IN HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND HIS HONORABLE DISCHARGE ON AUGUST 31. WERE ARBITRARY. THE CASE WAS REFERRED TO A TRIAL COMMISSIONER WITH DIRECTIONS TO MAKE FINDINGS OF FACT AND RECOMMENDATION FOR CONCLUSIONS OF LAW. THE COMMISSIONER FOUND THAT "IT HAS BEEN CLEARLY ESTABLISHED THAT WE ARE CONSIDERING CHRONIC.

B-156476, MAR. 13, 1969

TO LIEUTENANT COLONEL M. T. BRADLEY, FC:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 6, 1969, CONCERNING THE CASE OF SERGEANT CHARLES A. BROZIK, JR., RA 17 253 878, RETIRED.

ON MARCH 29, 1965, SERGEANT BROZIK FILED A PETITION (NO. 97-65) IN THE COURT OF CLAIMS FOR DISABILITY RETIREMENT PAY FROM AUGUST 31, 1963, BASED ON HIS DISABILITIES INCURRED WHILE ON ACTIVE DUTY WHICH WERE RATED AT 90 PERCENT WHILE HE WAS CARRIED ON THE TEMPORARY DISABILITY RETIRED LIST. THE CLAIM WAS PREDICATED ON THE PREMISE THAT THE FINDINGS AND RECOMMENDATIONS OF THE VARIOUS BOARDS INVOLVED THAT HE WAS FIT FOR ACTIVE MILITARY DUTY WHICH RESULTED IN HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND HIS HONORABLE DISCHARGE ON AUGUST 31, 1963, WERE ARBITRARY, CAPRICIOUS, CONTRARY TO LAW AND WITHOUT SUBSTANTIAL EVIDENTIARY SUPPORT.

THE CASE WAS REFERRED TO A TRIAL COMMISSIONER WITH DIRECTIONS TO MAKE FINDINGS OF FACT AND RECOMMENDATION FOR CONCLUSIONS OF LAW. THE COMMISSIONER FOUND THAT "IT HAS BEEN CLEARLY ESTABLISHED THAT WE ARE CONSIDERING CHRONIC, PERMANENT DISABILITIES WHICH WARRANT THE ASSIGNMENT OF PERCENTAGE RATINGS FAR IN EXCESS OF 30 PERCENT.' THE COURT ADOPTED THE COMMISSIONER'S OPINION, WITH ITS MODIFICATIONS, AND ON JUNE 9, 1967 (180 CT. CL. 546) DECIDED THAT "PLAINTIFF IS ENTITLED TO PERMANENT DISABILITY RETIREMENT PAY BASED ON HIS OFFICE AND GRADE IN THE REGULAR ARMY AT THE TIME OF HIS DISCHARGE, LESS AMOUNTS RECEIVED AS DISABILITY COMPENSATION FROM THE V.A.'

BY LETTER DATED OCTOBER 9, 1967, THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, REQUESTED THAT WE FURNISH A COMPUTATION OF THE PLAINTIFF'S ENTITLEMENT UNDER A STIPULATION PROPOSED BY THE ATTORNEY FOR THE PLAINTIFF BASED ON 75 PERCENT OF THE PAY OF A SERGEANT, E-5, WITH 14 YEARS OF SERVICE FROM AUGUST 31, 1963, THROUGH SEPTEMBER 30, 1967, LESS COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION, OR A NET AMOUNT OF $7,632.86.

ON JANUARY 12, 1968, WE FURNISHED OUR COMPUTATION BASED ON 75 PERCENT OF THE ACTIVE DUTY PAY OF A SERGEANT, E-5, WITH OVER 11 YEARS OF SERVICE FOR THE PERIOD SEPTEMBER 1, 1963, THROUGH DATE OF JUDGMENT, JUNE 9, 1967, LESS DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION DURING THAT PEROD, OR A NET AMOUNT OF $5,836.84, AS SET FORTH IN DETAIL IN LETTER OF JANUARY 17, 1968, ENCLOSED WITH YOUR LETTER, IN WHICH THE ASSISTANT ATTORNEY GENERAL PROPOSED A STIPULATION BASED ON THAT COMPUTATION.

THEREAFTER, ON FEBRUARY 2, 1968, THE COURT, IN ACCORDANCE WITH ITS OPINION OF JUNE 9, 1967, AND THE STIPULATION OF THE PARTIES, ENTERED JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $5,836.84. THAT JUDGMENT WAS PAID PURSUANT TO SETTLEMENT OF OUR CLAIMS DIVISION DATED MARCH 1, 1968.

YOU SAY THAT LATER SERGEANT BROZIK'S MILITARY RECORDS WERE CORRECTED TO SHOW HE WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 31, 1963, AND PERMANENTLY RETIRED ON SEPTEMBER 1, 1963, WITH 50 PERCENT DISABILITY AND THAT THEREFORE HE IS ENTITLED TO RETIRED PAY COMPUTED AT THE RATE OF 50 PERCENT OF THE ACTIVE DUTY PAY OF A SERGEANT, E-5, WITH OVER 11 YEARS OF CREDITABLE SERVICE FOR PAY PURPOSES AT THE RATE IN EFFECT ON AUGUST 31, 1963, WITH PERCENTAGE INCREASES AS PROVIDED IN SUBSEQUENT PAY RAISE LEGISLATION. SINCE HE RECEIVED RETIRED PAY COMPUTED AT THE RATE OF 75 PERCENT FOR THE PERIOD SEPTEMBER 1, 1963, THROUGH JUNE 9, 1967, UNDER THE COURT'S DECISION, YOU REQUEST TO BE INFORMED WHETHER AN OVERPAYMENT EXISTS WHICH SHOULD BE RECOVERED FROM RETIRED PAY DUE HIM UNDER THE RECORD CORRECTION SUBSEQUENT TO THE DATE OF THE JUDGMENT.

UNDER THE COURT'S DECISION OF JUNE 9, 1967, SERGEANT BROZIK BECAME ENTITLED TO A MONEY JUDGMENT FOR RETIRED PAY FOR THE PERIOD FROM THE DAY AFTER HIS DISCHARGE TO THE DATE OF JUDGMENT AS AGREED TO BY THE PARTIES AND APPROVED BY THE COURT. THE COURT'S DECISION DID NOT, AND COULD NOT, BESTOW ON HIM ANY STATUS IN THE ARMY BUT SIMPLY ALLOWED HIM A SUM OF MONEY IN THE NATURE OF MONEY DAMAGES. SEE 43 COMP. GEN. 242 AND CASES CITED THEREIN.

HAVING BEEN COMPLETELY SEPARATED FROM MILITARY SERVICE BY DISCHARGE ON AUGUST 31, 1963, SERGEANT BROZIK WAS NOT ENTITLED TO ANY AMOUNT SUBSEQUENT TO THE DATE OF THE COURT'S DECISION IN THE ABSENCE OF CORRECTIVE ACTION BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. WHILE UNDER 10 U.S.C. 1552 HIS RECORD COULD BE CORRECTED IN ANY WAY CONSIDERED NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE" SUCH CORRECTION COULD NOT ALTER THE COURT'S DECISION OR REDUCE THE AMOUNT OF ITS JUDGMENT. THUS, THE RULE OF RES JUDICATA AS IT RELATES TO THE JUDGMENT OF JUNE 9, 1967, CLEARLY COVERS THE PERIOD SEPTEMBER 1, 1963, THROUGH JUNE 9, 1967, AND THERE IS NO BASIS FOR QUESTIONING HIS RIGHT TO RETAIN THE AMOUNT PAID TO HIM IN SATISFACTION OF THAT JUDGMENT. SEE 44 COMP. GEN. 821. COMPARE 45 COMP. GEN. 819.

ACCORDINGLY, NO OVERPAYMENT OF RETIRED PAY EXISTS FOR THE PERIOD SEPTEMBER 1, 1963, THROUGH JUNE 9, 1967, AND PAYMENT OF THE AMOUNT OF RETIRED PAY DUE UNDER THE RECORD CORRECTION, LESS COMPENSATION PAID BY THE VETERANS ADMINISTRATION, IS AUTHORIZED FOR THE PERIOD COMMENCING JUNE 10, 1967, WITHOUT REGARD TO THE AMOUNT ALLOWED BY THE COURT DECISION OF JUNE 9, 1967.