B-159709, AUG. 17, 1966

B-159709: Aug 17, 1966

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STEWART: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19. TYDINGS AND REPRESENTATIVE ADAM CLAYTON POWELL HAVE CONTACTED US REGARDING YOUR CLAIM. YOU WERE DIRECTED TO STAND DETACHED FROM YOUR STATION AND DUTIES ON SEPTEMBER 28. YOU WERE PAID FOR TRAVEL TO THERE FROM QUANTICO. YOU WERE DISCHARGED FROM THE MARINE CORPS WITH SEVERANCE PAY BY REASON OF PHYSICAL DISABILITY ON OCTOBER 12. NO TRAVEL WAS PERFORMED BY YOU OR YOUR DEPENDENTS INCIDENT TO THIS SEPARATION. THE BOARD FOR CORRECTION OF NAVAL RECORDS INFORMED YOU THAT THE SECRETARY OF THE NAVY HAD APPROVED ITS DECISION THAT YOUR RECORDS BE CORRECTED TO SHOW THAT YOU WERE NOT DISCHARGED WITH SEVERANCE PAY BUT THAT THE SECRETARY OF THE NAVY PLACED YOUR NAME ON THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS ON OCTOBER 12.

B-159709, AUG. 17, 1966

TO MR. DUNBAR H. STEWART:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1966, REQUESTING REVIEW OF THE SETTLEMENT DATED JULY 13, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM WASHINGTON, D.C., TO PASADENA, CALIFORNIA, IN MAY 1966 INCIDENT TO THE CORRECTION OF YOUR MILITARY RECORDS TO SHOW YOUR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OF THE UNITED STATES MARINE CORPS ON OCTOBER 12, 1962. SENATOR JOSEPH D. TYDINGS AND REPRESENTATIVE ADAM CLAYTON POWELL HAVE CONTACTED US REGARDING YOUR CLAIM.

BY ORDERS DATED SEPTEMBER 25, 1962, ISSUED BY HEADQUARTERS, MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA, YOU WERE DIRECTED TO STAND DETACHED FROM YOUR STATION AND DUTIES ON SEPTEMBER 28, 1962, AND TO PROCEED TO YOUR HOME OR SUCH OTHER PLACE AS YOU MAY ELECT AND AWAIT ORDERS PENDING ACTION OF THE PHYSICAL EVALUATION BOARD ON YOUR CASE. THESE ORDERS STATE THAT YOU ELECTED TO PROCEED TO YOUR CURRENT ADDRESS IN WASHINGTON, D.C., YOUR HOME OF RECORD AND PERMANENT MAILING ADDRESS. YOU WERE PAID FOR TRAVEL TO THERE FROM QUANTICO, VIRGINIA, ON SEPTEMBER 28, 1962, BY MEANS OF A PAY RECORD CREDIT. YOU WERE DISCHARGED FROM THE MARINE CORPS WITH SEVERANCE PAY BY REASON OF PHYSICAL DISABILITY ON OCTOBER 12, 1962, FOLLOWING MORE THAN 8 YEARS' CONTINUOUS ACTIVE DUTY. NO TRAVEL WAS PERFORMED BY YOU OR YOUR DEPENDENTS INCIDENT TO THIS SEPARATION.

BY LETTER DATED MAY 25, 1965, THE BOARD FOR CORRECTION OF NAVAL RECORDS INFORMED YOU THAT THE SECRETARY OF THE NAVY HAD APPROVED ITS DECISION THAT YOUR RECORDS BE CORRECTED TO SHOW THAT YOU WERE NOT DISCHARGED WITH SEVERANCE PAY BUT THAT THE SECRETARY OF THE NAVY PLACED YOUR NAME ON THE TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS ON OCTOBER 12, 1962, BY REASON OF PHYSICAL DISABILITY. YOU SAY IN YOUR LETTER OF JULY 19, 1966, THAT THE TRANSPORTATION OFFICE OF THE MARINE CORPS HEADQUARTERS ADVISED YOU IN VIEW OF THIS DECISION BY THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT YOU WOULD BE ENTITLED TO REIMBURSEMENT FOR COSTS OF TRAVEL AND TRANSPORTATION TO THE PLACE SELECTED AS YOUR HOME, AFTER YOUR TRAVEL THERETO, AND AS A CONSEQUENCE, YOU SELECTED PASADENA, CALIFORNIA, AND PERFORMED THE TRAVEL TO PASADENA. YOU URGE THAT IN SUCH CIRCUMSTANCES YOU SHOULD BE PAID FOR THAT TRAVEL.

UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF A MILITARY DEPARTMENT, ACTING THROUGH A BOARD, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUBPARAGRAPH (C) THEREOF PROVIDES IN PERTINENT PART THAT THE DEPARTMENT CONCERNED MAY PAY FROM APPLICABLE CURRENT APPROPRIATIONS A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS OR OTHER PECUNIARY BENEFITS IF, AS A RESULT OF CORRECTING A RECORD, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS SERVICE IN THE ARMY, NAVY, AIR FORCE, MARINE CORPS OR COAST GUARD, AS THE CASE MAY BE. SECTIONS 404 (C) AND 406 (G) OF TITLE 37 OF THE UNITED STATES CODE PROVIDE IN PERTINENT PART THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO IS RETIRED, PLACED ON THE TEMPORARY DISABILITY LIST, RETIRED WITH PAY UNDER ANY OTHER LAW, OR, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS, IS DISCHARGED WITH SEVERANCE PAY, MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED IN SECTION 404 (A) AND ALSO IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME SELECTED UNDER 37 U.S.C. 404 (C).

PARAGRAPHS M4158-1A, M7010-1A AND M8260-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C.404 AND 406, PROVIDE IN PERTINENT PART THAT A MEMBER MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCE AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS THERETO, WHEN HE IS RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (WITHOUT REGARD TO LENGTH OF SERVICE) OR, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY (WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS), IS DISCHARGED WITH SEVERANCE PAY. EXCEPT WHEN SUCH MEMBER WAS UNDERGOING HOSPITALIZATION OR MEDICAL TREATMENT AT GOVERNMENT EXPENSE ON THE DATE OF TERMINATION OF ACTIVE DUTY THE TRAVEL OF THE MEMBER AND TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS MUST BE COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPHS M4158-2, M7010-2 AND M8260-4 OF THE REGULATIONS PROVIDE THAT WHERE A MEMBER IS CONFINED IN, OR UNDERGOING TREATMENT AT, A GOVERNMENT HOSPITAL (OR A CIVILIAN HOSPITAL AT GOVERNMENT EXPENSE) ON THE DATE OF TERMINATION OF ACTIVE DUTY, HE MAY SELECT A HOME, TRAVEL THERETO, AND TRANSPORT HIS DEPENDENTS AND HOUSEHOLD GOODS TO THE SELECTED PLACE WITHIN ONE YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR TERMINATION OF SUCH TREATMENT, OR 2 YEARS AFTER DATE OF TERMINATION OF ACTIVE DUTY, WHICHEVER IS EARLIER. FURTHER EXTENSION OF THIS TIME LIMIT MAY BE APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE.

AS YOU WERE ADVISED IN THE SETTLEMENT OF JULY 13, 1966, IT IS WELL SETTLED THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY RECORD IS CORRECTED PURSUANT TO 10 U.S.C 1552 BECOMES ENTITLED UNDER SUBSECTION (C) THEREOF TO PAY, ALLOWANCES OR OTHER BENEFITS WHICH ARE DUE ON THE BASIS OF THE FACTS AS SHOWN IN THE CORRECTED RECORD. THE MEMBER'S RIGHTS ARE DETERMINED UNDER APPLICABLE LAW AND REGULATIONS IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. SEE 40 COMP. GEN. 502-504; 42 COMP. GEN. 582. IN YOUR CASE, HAD THE ORIGINAL RECORDS SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS, YOU WOULD HAVE BEEN ENTITLED ON OCTOBER 12, 1962, TO SELECT YOUR HOME AND RECEIVE TRAVEL ALLOWANCES FOR YOUR TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS THERETO UPON COMPLETION OF SUCH TRAVEL AND TRANSPORTATION WITHIN THE PRESCRIBED PERIOD. HOWEVER, YOU HAD THIS ENTITLEMENT PRIOR TO THE CORRECTION OF YOUR RECORDS BY VIRTUE OF YOUR DISCHARGE ON OCTOBER 12, 1962, WITH SEVERANCE PAY, SINCE YOU HAD OVER 8 YEARS' CONTINUOUS ACTIVE SERVICE AT THAT TIME. THEREFORE, THE CORRECTION OF YOUR RECORDS ON MAY 25, 1965, PROVIDED NO NEW OR ADDITIONAL BENEFITS WITH RESPECT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES. IN OTHER WORDS, THE CORRECTION DID NOT GIVE RISE TO ANY RIGHT TO TRAVEL AND TRANSPORTATION THAT YOU DID NOT HAVE ON OCTOBER 12, 1962, AND CONSEQUENTLY IT DID NOT TOLL THE RUNNING OF, OR OTHERWISE AFFECT THE MEASURING OF, THE ONE-YEAR PERIOD FROM OCTOBER 12, 1962, THE DATE YOUR ACTIVE DUTY STATUS WAS TERMINATED. SEE 43 COMP. GEN. 715.

WHILE THE RECORD DOES NOT SHOW WHETHER YOU WERE UNDERGOING MEDICAL TREATMENT AT GOVERNMENT EXPENSE ON THE DATE OF TERMINATION OF YOUR ACTIVE DUTY, YOU DO NOT COME WITHIN THE PROVISIONS OF THE REGULATIONS WITH RESPECT TO AN EXTENSION OF THE ONE-YEAR LIMITATION IN VIEW OF THE TIME ELAPSED BETWEEN THE DATE OF YOUR DISCHARGE AND THE TIME YOU MOVED FROM WASHINGTON, D.C., TO PASADENA, CALIFORNIA. IT APPEARS THAT YOU REMAINED IN WASHINGTON, D.C., FROM SEPTEMBER 28, 1962, WHEN YOU WENT THERE TO AWAIT ACTION OF THE PHYSICAL EVALUATION BOARD ON YOUR CASE UNTIL MAY 1966, WHEN YOU AND YOUR DEPENDENTS MOVED TO PASADENA, CALIFORNIA. THEREFORE, SINCE YOU DID NOT TRAVEL TO YOUR HOME OF SELECTION WITHIN ONE YEAR FROM OCTOBER 12, 1962, OR 2 YEARS IF YOU WERE UNDERGOING MEDICAL TREATMENT AT GOVERNMENT EXPENSE, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

A CAREFUL REVIEW OF THE FACTS IN YOUR CASE AND THE PERTINENT STATUTORY PROVISIONS FAILS TO DISCLOSE ANY MATERIAL DIFFERENCE BETWEEN YOUR CASE AND THE CASE CONSIDERED IN THE DECISION REPORTED AT 43 COMP. GEN. 715. WILL BE NOTED THAT SUCH DECISION--- ISSUED TO THE SECRETARY OF THE NAVY IN A MARINE CORPS CASE--- WAS RENDERED ON MAY 4, 1964. THUS, IT BECAME A BINDING PRECEDENT FOR THE MARINE CORPS AND THE OTHER MILITARY SERVICES MORE THAN A YEAR BEFORE THE DATE OF THE CORRECTION OF YOUR RECORD. CONSEQUENTLY, ANY ADVICE GIVEN YOU BY MARINE CORPS OFFICIALS AFTER THE CORRECTION OF YOUR RECORD, TO THE EFFECT THAT YOU AND YOUR FAMILY WERE THEN ENTITLED TO TRAVEL TO A HOME OF SELECTION AT GOVERNMENT EXPENSE WAS ERRONEOUS. HOWEVER, IN THE SETTLEMENT OF CLAIMS WE MUST COMPLY WITH THE LAW AND REGULATIONS AND IN THE ABSENCE OF SOME STATUTE SO PROVIDING ERRONEOUS ACTS OF OFFICERS, AGENTS OR EMPLOYEES OF THE UNITED STATES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES, DO NOT AFFORD A BASIS UPON WHICH WE MAY GIVE FAVORABLE CONSIDERATION TO CLAIMS. WE ARE NOT AWARE OF ANY LAW WHICH WOULD AUTHORIZE US TO FAVORABLY CONSIDER YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JULY 13, 1966, WAS CORRECT AND WE MUST SUSTAIN IT. ..END :