B-157183, SEP. 15, 1965, 45 COMP. GEN. 140

B-157183: Sep 15, 1965

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THE GENERAL PURPOSE OF WHICH IS "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. " AND TO AUTHORIZE PAYMENT OF ALL AMOUNTS "WHICH ARE FOUND TO BE DUE" ON ACCOUNT OF A RECORD CORRECTION. THE RECORD INDICATES THAT THERE WAS DUE LIEUTENANT MILLER THE SUM OF $2. 786.68 INCIDENT TO THE CORRECTION OF HIS RECORD WHICH WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON JUNE 20. HE WAS PAID ONLY $1. LATER IT WAS DETERMINED THAT HE SHOULD HAVE BEEN PAID THE ADDITIONAL SUM OF $811.13. WHICH WAS PAID TO HIM IN 1962. EXCEPTION WAS TAKEN TO THAT PAYMENT AND THE PAYEE OBJECTS ON THE BASIS THAT RECOVERY IS NOT PROPER. THE LEGALITY OF THAT ADDITIONAL PAYMENT IS NOW IN QUESTION. THAT PROVISION IS A CODIFICATION OF THE PROVISION CONTAINED IN SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946.

B-157183, SEP. 15, 1965, 45 COMP. GEN. 140

MILITARY PERSONNEL - RECORD CORRECTION - PAYMENT RESULTING FROM CORRECTION - ACCEPTANCE EFFECT THE ACCEPTANCE BY AN OFFICER OF THE UNIFORMED SERVICES OF AN AMOUNT LESS THAN THE FULL AMOUNT DUE, OCCASIONED BY AN ERROR IN COMPUTING THE PAYMENT MADE INCIDENT TO THE CORRECTION OF HIS MILITARY RECORDS UNDER 10 U.S.C. 1552, THE GENERAL PURPOSE OF WHICH IS "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE," AND TO AUTHORIZE PAYMENT OF ALL AMOUNTS "WHICH ARE FOUND TO BE DUE" ON ACCOUNT OF A RECORD CORRECTION, DOES NOT CONSTITUTE THE RELEASE CONTEMPLATED BY THE ACT OF OCTOBER 25, 1951, NOW COVERED BY SECTION 1552, THAT OF FORECLOSING QUESTIONING THE BASIS OF A RECORD CORRECTION AFTER SETTLEMENT; THEREFORE, ABSENT AN INTENT TO PAY OR ACCEPT LESS THAN THE AMOUNT DUE ON ACCOUNT OF A RECORD CORRECTION, AND AUTHORITY EXISTING FOR REFORMING RELEASES TO CORRECT MUTUAL MISTAKES AND GIVE EFFECT TO THE INTENT OF THE PARTIES, THE RELEASE CLAUSE CONTAINED IN THE 1951 ACT DOES NOT PRECLUDE RECALCULATION OF PAYMENTS TO CORRECT AN UNDISPUTED ERROR, AND THE ADDITIONAL PAYMENT TO THE OFFICER TO CORRECT THE ERROR IN COMPUTING THE SUM DUE HIM ON ACCOUNT OF THE RECORD CORRECTION MAY BE RETAINED BY HIM. OVERRULES 34 COMP. GEN. 188; 40 ID. 116.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 15, 1965:

THE LEGALITY OF A PAYMENT MADE TO LIEUTENANT ARNOLD MILLER, USNR, 617 594, PURSUANT TO A CORRECTION OF HIS NAVAL RECORDS BASED ON ACTION TAKEN BY THE BOARD FOR THE CORRECTION OF NAVAL RECORDS HAS BEEN CONSIDERED. THE RECORD INDICATES THAT THERE WAS DUE LIEUTENANT MILLER THE SUM OF $2,786.68 INCIDENT TO THE CORRECTION OF HIS RECORD WHICH WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON JUNE 20, 1960, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1552. HOWEVER, HE WAS PAID ONLY $1,975.55 IN 1960 INCIDENT TO THAT CORRECTION. LATER IT WAS DETERMINED THAT HE SHOULD HAVE BEEN PAID THE ADDITIONAL SUM OF $811.13, WHICH WAS PAID TO HIM IN 1962. EXCEPTION WAS TAKEN TO THAT PAYMENT AND THE PAYEE OBJECTS ON THE BASIS THAT RECOVERY IS NOT PROPER. THE LEGALITY OF THAT ADDITIONAL PAYMENT IS NOW IN QUESTION.

SECTION 1552 OF TITLE 10, U.S. CODE, AUTHORIZES THE CORRECTION OF MILITARY AND NAVAL RECORDS TO CORRECT AN ERROR OR REMOVE AN INJUSTICE AND AUTHORIZES PAYMENT OF A CLAIM FOR PAY AND ALLOWANCES FOUND TO BE DUE AS THE RESULT OF SUCH RECORD CORRECTION, BUT ALSO PROVIDES THAT:

A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED.

THAT PROVISION IS A CODIFICATION OF THE PROVISION CONTAINED IN SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, APPROVED AUGUST 2, 1946, CH. 753, 60 STAT. 937, AS ADDED BY SECTION 1 OF THE ACT OF OCTOBER 25, 1951, CH. 588, 65 STAT. 656, 5 U.S.C. 191A (C), WHICH READS AS FOLLOWS:

THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO * * * THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.

IN THE PAST THIS OFFICE HAS GIVEN A STRICT INTERPRETATION TO THOSE PROVISIONS AND HAS CONCLUDED THAT THE ACCEPTANCE OF AN AMOUNT THAT WAS LESS THAN THE FULL AMOUNT DUE UNDER THE LAW BASED ON THE CORRECTED RECORD WAS A RELEASE BY THE CLAIMANT OF HIS CLAIM AGAINST THE UNITED STATES. COMP. GEN. 188; 40 COMP. GEN. 116. CF. 34 COMP. GEN. 456. HOWEVER, THE COURT OF CLAIMS HAS TAKEN A LESS STRICT VIEW OF THOSE PROVISIONS (SEE HIETT V. UNITED STATES, 131 CT.CL. 585) AND SINCE OUR INTERPRETATION OF THOSE PROVISIONS MAY HAVE RESULTED IN A CONCLUSION INCONSISTENT WITH THE BASIC GENERAL PURPOSE OF THE STATUTE "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE" THE EFFECT OF ACCEPTANCE OF A PAYMENT UNDER THAT STATUTE HAS BEEN RE-EXAMINED.

IT WILL BE NOTED THAT THE STATUTE DOES NOT SPECIFICALLY PROVIDE THAT THE GOVERNMENT MAY NOT MAKE A SECOND PAYMENT IF THE FIRST PAYMENT ACCEPTED PURSUANT TO THE RECORD CORRECTION IS LESS THAN THE FULL AMOUNT DUE UNDER THAT RECORD CORRECTION. THE LANGUAGE OF THE 1951 STATUTE STATED THAT ACCEPTANCE OF A SETTLEMENT CONSTITUTES A COMPLETE "RELEASE.' IN CODIFYING THAT PROVISION OF LAW IN TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 117, 10 U.S.C. 1552 (C), THE LANGUAGE WAS CHANGED TO READ THAT ACCEPTANCE OF A SETTLEMENTFULLY SATISFIES THE CLAIM. SINCE THERE WAS NO INTENTION TO SUBSTANTIALLY CHANGE THE LAW IN THAT CODIFICATION (SEE SECTION 49 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640) AND THE REVISERS MERELY STATED THAT THE LANGUAGE IN THE CODIFICATION "IS SUBSTITUTED" FOR THAT IN THE ORIGINAL LAW, RESORT TO THE 1951 ACT TO DETERMINE THE MEANING OF THE TERMS USED IS PERMISSIBLE.

IN THE HIETT CASE (1955), WHERE THE CORRECTED RECORD SHOWED DISABILITY RETIREMENT AND PAYMENT OF RETIRED PAY FOR THE CURRENT PERIOD 1951-1953 IN AMOUNT OF $2,538.25 WAS ACCEPTED AND A RELEASE SIGNED, THE COURT OF CLAIMS SAID THAT THERE WAS NO INTENTION TO SURRENDER THE CLAIM FOR SOME $9,000 PENDING IN THE COURT OF CLAIMS FOR THE PERIOD 1947-1951 WHEN THE PLAINTIFF SIGNED THE RELEASE AND ACCEPTED THE FIRST PAYMENT. THE COURT OF CLAIMS REJECTED THE GOVERNMENT'S ARGUMENT THAT,"REGARDLESS OF THE INTENTION OF THE PARTIES, THE RELEASE GIVEN BY THE PLAINTIFF HAS, BY THE MANDATE OF THE STATUTE, THE DEVASTATING EFFECT WHICH IS CLAIMED FOR IT.' POINTING OUT THAT THE PURPOSE OF THE STATUTE WAS "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE," THE COURT SAID:

WE SEE NOTHING IN THE LANGUAGE OF THIS STATUTE TO INDICATE THAT CONGRESS INTENDED, WHEN IT SET OUT TO EASE THE PATH OF MILITARY PERSONNEL IN OBTAINING JUSTICE, TO SET A TRAP FOR THE UNWARY SOLDIER WHOSE RECORDS NEEDED CORRECTION IN MORE THAN ONE RESPECT, AND WHO HAD FILED SEPARATE APPLICATIONS FOR THOSE CORRECTIONS.

THE LEGISLATIVE HEARINGS ON THE 1951 ACT (SEE PAGES 359-363 OF THE HEARINGS BEFORE SUBCOMMITTEE NO. 3, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES ON H.R. 1181, 82D CONG., WHICH BECAME THE ACT OF OCTOBER 25, 1951) INDICATE AN INTEREST ON THE PART OF MEMBERS OF THE SUBCOMMITTEE IN THE EFFECT OF THE RELEASE AND A CONCERN THAT IT NOT PREVENT CORRECTION OF MUTUAL MISTAKES. THERE APPEARS TO HAVE BEEN LITTLE THOUGHT THAT AN ERROR MIGHT OCCUR IN THE CALCULATION BY THE FINANCE OFFICERS BECAUSE THE DISCUSSION SEEMS TO RELATE TO CORRECTIONS OF MUTUAL MISTAKES BY THE BOARD AND THE PRINCIPAL CONCERN IS TO ELIMINATE REVIEWS AND APPEALS TO OTHER AGENCIES. THE EXPLANATIONS OFFERED LEND SUPPORT TO THE VIEW THAT THE PROVISION WAS INTENDED TO FORECLOSE A CLAIMANT, AFTER ACCEPTING SETTLEMENT, FROM DISPUTING THE RECORD CORRECTION ON WHICH IT WAS BASED.

IT SHOULD ALSO BE NOTED THAT THE STATUTE DIRECTED PAYMENT OF ALL AMOUNTS "WHICH ARE FOUND TO BE DUE" ON ACCOUNT OF THE RECORD CORRECTION. THAT IS THE AMOUNT WHICH THE FINANCE OFFICER WAS AUTHORIZED TO PAY, AND PRESUMABLY INTENDED TO PAY, AND IT WAS EITHER ERROR OR MISREPRESENTATION TO HOLD OUT A LESSER AMOUNT AS THE AMOUNT LAWFULLY DUE. THERE IS NOTHING TO INDICATE THAT THE FINANCE OFFICER INTENDED TO PAY LIEUTENANT MILLER LESS THAN THE AMOUNT DUE HIM UNDER THE CORRECTION OF HIS NAVAL RECORD, OR THAT HE INTENDED TO ACCEPT ANY AMOUNT LESS THAN THE FULL AMOUNT DUE HIM. PRESUMABLY HE MADE CLAIM FOR THE AMOUNT DUE HIM ON A FORM PROVIDED BY THE NAVY FINANCE CENTER, WHICH READS THAT "CLAIM IS HEREBY SUBMITTED FOR ALL MONETARY BENEFITS DUE BY REASON OF CORRECTION OF NAVAL RECORD * * * PURSUANT TO APPROVED ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS * * *.' HE ACCEPTED THE PAYMENT PROFFERED TO HIM IN 1960 IN THE BELIEF THAT IT WAS THE FULL AMOUNT DUE HIM UNDER HIS NAVAL RECORD CORRECTION. UNDER SUCH CIRCUMSTANCES AND, SINCE THERE IS WELL-ESTABLISHED AUTHORITY FOR REFORMING RELEASES TO CORRECT MUTUAL MISTAKES AND TO GIVE EFFECT TO THE INTENT OF THE PARTIES (SEE 30 COMP. GEN. 335), IT MAY REASONABLY BE CONCLUDED THAT THE RELEASE CLAUSE CONTAINED IN THE 1951 ACT WAS NOT INTENDED TO PRECLUDE RECALCULATION OF PAYMENTS TO CORRECT AN UNDISPUTED ERROR IN COMPUTATION WHICH WAS MADE IN ATTEMPTING TO FOLLOW THE DIRECTIVES OF THE MILITARY AND NAVAL CORRECTION BOARDS.

ACCORDINGLY, IT IS CONCLUDED THAT THE PAYMENT IN THE AMOUNT OF $811.13 TO MR. MILLER WHICH HE RECEIVED IN 1962 INCIDENT TO HIS RECORD CORRECTION AND TO WHICH HE WAS ENTITLED AS A RESULT OF SUCH ACTION MAY BE RETAINED BY HIM. INSOFAR AS THE DECISIONS CITED ABOVE ARE INCONSISTENT WITH THAT CONCLUSION, THEY NO LONGER WILL BE FOLLOWED.