B-157381, SEP. 9, 1965

B-157381, SEP. 9, 1965

TO MR. ROBERT J. MAASS:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR SPECIAL MEDICAL PAY FOR TWO MONTHS, PLUS PENALTY AND INTEREST, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE. REFERENCE IS MADE ALSO TO YOUR CLAIM PRESENTED TO THE POST OFFICE DEPARTMENT TO BE PAID FOR THE LOSS OF USE OF AN AIR TURBINE BECAUSE IT WAS NOT PROPERLY DELIVERED TO YOU BY MAIL.

THE RECORD SHOWS THAT DURING THE PERIOD OF YOUR ACTIVE DUTY IN THE AIR FORCE, JANUARY 6, 1955, TO JANUARY 5, 1957, YOU WERE PAID SPECIAL MEDICAL PAY OF $100 A MONTH IN ADDITION TO OTHER PAY AND ALLOWANCES; THAT YOU ACCRUED 61 DAYS' LEAVE DURING YOUR TOUR OF SERVICE; THAT YOU USED 8 DAYS' LEAVE, AND THAT UPON DISCHARGE ON JANUARY 5, 1957, YOU WERE PAID BASIC PAY AND ALLOWANCES FOR 53 DAYS' ACCRUED LEAVE. YOU CONTEND THAT SUCH PAYMENT SHOULD HAVE INCLUDED THE SPECIAL MEDICAL PAY; ALSO, THAT YOU DID NOT TAKE TERMINAL LEAVE; THAT THE DISCHARGE ON JANUARY 5, 1957, WHICH YOU SAY WAS TO FACILITATE YOUR TRANSFER TO THE RESERVE, WAS IN ERROR, AND THAT YOU SHOULD HAVE BEEN DISCHARGED AFTER THE EXPIRATION OF YOUR LEAVE.

SECTION 302 OF TITLE 37, U.S.C. AUTHORIZES SPECIAL PAY TO CERTAIN MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES FOR EACH MONTH OF ACTIVE DUTY WITH THE AMOUNT DEPENDING ON THE NUMBER OF YEARS OF ACTIVE DUTY COMPLETED IN A CATEGORY NAMED IN THAT SECTION. SECTION 101 (22) OF TITLE 10, U.S.C. DEFINES "ACTIVE DUTY" AS FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, AND INCLUDES DUTY ON THE ACTIVE LIST, FULL- TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. SINCE YOU HAVE RECEIVED SPECIAL MEDICAL PAY FOR THE PERIOD JANUARY 6, 1955, TO JANUARY 5, 1957, WHILE YOU WERE ON ACTIVE DUTY IN THE AIR FORCE, THERE IS NO AUTHORITY TO ALLOW YOU ADDITIONAL SPECIAL MEDICAL PAY FOR THIS PERIOD OF MILITARY SERVICE BY REASON OF THE FACT THAT YOU WERE PAID FOR ACCRUED LEAVE.

SECTION 501 (B) OF TITLE 37, U.S.C. PROVIDES THAT AN OFFICER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, OR COAST AND GEODETIC SURVEY WHO HAD ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE IS ENTITLED TO BE PAID IN CASH OR BY A CHECK ON THE TREASURER OF THE UNITED STATES FOR THAT LEAVE ON THE BASIS OF THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE. THE BASIC PAY OF A MEMBER OF THE UNIFORMED SERVICES IS THAT PAY AUTHORIZED FOR HIS GRADE AND THE NUMBER OF HIS YEARS OF SERVICE AND DOES NOT INCLUDE SPECIAL MEDICAL PAY. THERE IS NOTHING IN THE LAW WHICH WOULD PERMIT SPECIAL MEDICAL PAY TO BE INCLUDED IN A MEMBER'S LUMP-SUM PAYMENT FOR LEAVE WHEN HE IS DISCHARGED OR WHICH REQUIRES THAT HE BE RETAINED IN THE MILITARY SERVICE UNTIL HIS LEAVE IS USED. THEREFORE, IT IS THE PRACTICE OF THE UNIFORMED SERVICES TO DISCHARGE A MEMBER AND PAY HIM FOR ACCRUED LEAVE.

FURTHER, THERE IS NO AUTHORITY FOR THE PAYMENT OF PENALTY AND INTEREST IN A CASE SUCH AS YOURS. SPECIFICALLY, THE SUPREME COURT OF THE UNITED STATES HELD THAT THE RULE IS WELL ESTABLISHED THAT IN THE ABSENCE OF A CONTRACT OR STATUTE EVINCING A CONTRARY INTENTION, INTEREST DOES NOT RUN UPON CLAIMS AGAINST THE GOVERNMENT. SMYTH V. UNITED STATES, 302 U.S. 329, AT PAGE 353, AND CASES CITED THEREIN.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 18, 1964, DISALLOWING YOUR CLAIM FOR SPECIAL MEDICAL PAY WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR CONTENTION THAT YOU SHOULD NOT HAVE BEEN DISCHARGED UNTIL AFTER THE EXPIRATION OF YOUR LEAVE, THE ESTABLISHMENT AND ADMINISTRATION OF STANDARDS GOVERNING DISCHARGES FROM THE ARMED FORCES HAVE BEEN CONSIDERED PECULIARLY MILITARY. RESPECTING THIS, THE COURTS HERETOFORE HAVE BEEN SCRUPULOUSLY CAREFUL NOT TO INTERFERE WITH, OR INTERVENE IN, AUTHORIZED AND LEGITIMATE SERVICE MATTERS AND HAVE HELD THAT THE DISCHARGE OF A SOLDIER WAS A DISCRETIONARY ACT NOT SUBJECT TO REVIEW BY THE COURTS. NORDMANN V. WOODRING, 28 F.SUPP. 573; SCHUSTACK V. HERREN, ET. AL., 234 F.2D 134; BERNSTEIN, ET AL. V. HERREN, 141 F.SUPP. 78, AFFIRMED 234 F.2D 434, CERTIORARI DENIED, 352 U.S. 840. SEE ALSO MARSHALL V. WYMAN, ET AL., 132 F.SUPP. 169; DAVIS V. WOODRING, 111 F.2D 523. THUS, THE MATTER OF YOUR DISCHARGE FROM THE AIR FORCE IS NOT SUBJECT TO REVIEW BY THE GENERAL ACCOUNTING OFFICE.

WITH REGARD TO YOUR REQUEST THAT YOUR AIM FOR REIMBURSEMENT FOR LOSS OF USE OF AN AIR TURBINE ON ACCOUNT OF DELAY IN DELIVERY BY MAIL TO YOU BE FORWARDED TO THE HIGHEST AUTHORITIES FOR PAYMENT, YOU ARE ADVISED THAT SECTION 74 OF TITLE 31, U.S.C. PROVIDES THAT THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE SETTLEMENT OF PUBLIC ACCOUNTS SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. ASIDE FROM THE JURISDICTION OF THIS OFFICE THE COURT OF CLAIMS HAS AUTHORITY TO CONSIDER CERTAIN CLAIMS AGAINST THE UNITED STATES. 28 U.S.C. 1491 AND 2501.

SECTION 5006 OF TITLE 39, U.S.C. AUTHORIZES THE POSTMASTER GENERAL TO PROVIDE FOR THE INDEMNIFICATION, BY INSURANCE OR OTHERWISE, NOT TO EXCEED $200, FOR AN ARTICLE SENT BY THIRD OR FOURTH CLASS MAIL WHICH IS INJURED OR LOST IN THE MAIL. THERE IS NO PROVISION IN THIS SECTION NOR ANY OTHER LAW TO OUR KNOWLEDGE FOR THE REIMBURSEMENT FOR THE LOSS OF USE OF AN ARTICLE WHICH IS LOST OR DELAYED IN DELIVERY BY MAIL. THE CORRESPONDENCE FORWARDED WITH YOUR CLAIM SHOWS THAT THE POST OFFICE DEPARTMENT PAID YOU THE MAXIMUM AMOUNT ALLOWABLE FOR THE LOSS OF THE AIR TURBINE BASED ON THE INSURANCE FEE. HOWEVER, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR AN ADDITIONAL AMOUNT ON ACCOUNT OF THE LOSS OF USE OF YOUR AIR TURBINE DURING THE PERIOD INVOLVED.