B-159931, NOV. 16, 1966

B-159931, NOV. 16, 1966

TO FINANCE AND ACCOUNTING OFFICER DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1966, REQUESTING DECISION AS TO THE EFFECT ON THE RETIRED PAY STATUS OF TECHNICAL SERGEANT THOMAS MASON, R 747 330, UNITED STATES ARMY, RETIRED, OF THE CORRECTION OF HIS MILITARY RECORDS UNDER THE PROVISIONS OF 10 U.S.C. 1552. YOUR REQUEST, TOGETHER WITH A VOUCHER STATED IN FAVOR OF SERGEANT MASON, REPRESENTING ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1966, INCLUSIVE, WAS FORWARDED HERE AUGUST 22, 1966, BY THE OFFICE OF THE CHIEF OF FINANCE UNDER D.O. NUMBER A-922, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT SERGEANT MASON WAS PLACED ON THE DISABILITY RETIRED LIST ON FEBRUARY 28, 1946, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 30, 1941, CH. 263, 55 STAT. 394. UNDER SECTION 3 OF THAT ACT AS IN EFFECT ON FEBRUARY 28, 1946 (SEE THE SECOND PARAGRAPH OF SECTION 19 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 369), HE BECAME ENTITLED TO RECEIVE RETIRED PAY COMPUTED AT THE RATE OF 75 PER CENTUM OF THE AVERAGE PAY HE HAD RECEIVED DURING THE SIX-MONTH PERIOD PRIOR TO HIS RETIREMENT. IT IS STATED THAT PAYMENT OF RETIREMENT PAY WAS ESTABLISHED MARCH 1, 1946, AT $119.70 PER MONTH AND AT $141.75 PER MONTH EFFECTIVE JULY 1, 1946, COMPUTED ON THE APPLICABLE RATES OF ACTIVE DUTY PAY. IT IS FURTHER STATED THAT RETIRED PAY HAS BEEN COMPUTED CONTINUOUSLY THROUGH JUNE 30, 1966, ON THE BASIS OF THE PROVISIONS OF LAW THAT WERE IN EFFECT PRIOR TO OCTOBER 1, 1949 (THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802), PLUS THE PERCENTAGE INCREASES AUTHORIZED BY SUBSEQUENT LEGISLATION. THE FIGURES SHOWN ARE $147.42 PER MONTH EFFECTIVE MAY 1, 1952; $156.27 PER MONTH EFFECTIVE APRIL 1, 1955; $165.64 PER MONTH EFFECTIVE JUNE 1, 1958; $173.92 PER MONTH EFFECTIVE OCTOBER 1, 1963, AND $181.57 PER MONTH EFFECTIVE SEPTEMBER 1, 1965.

YOUR LETTER INDICATES THAT SERGEANT MASON WAS GIVEN AN OPPORTUNITY TO EXERCISE THE ELECTION PRESCRIBED IN SECTION 411 OF THE 1949 ACT. UNDER OPTION (A) OF SECTION 411 HE COULD HAVE ELECTED TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THE 1949 LAW AND, DEPENDENT UPON HIS QUALIFICATION, RECEIVE DISABILITY RETIREMENT PAY AS PRESCRIBED IN SECTION 402 (D) OF THE ACT OR, UNDER OPTION (B), TO RECEIVE RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THAT LAW. IT IS STATED THAT THE JUNE 21, 1950, ELECTION FORM MAILED TO HIM SET FORTH HIS ENTITLEMENT UNDER SECTION 411 EFFECTIVE OCTOBER 1, 1949, AS FOLLOWS:

(1) $141.75 PER MONTH UNDER THE LAWS IN FORCE ON SEPTEMBER 30, 1949,

(2) $149.94 PER MONTH BASED ON A 60 PERCENTUM DISABILITY RATING, AND

(3) $162.44 PER MONTH BASED ON HIS YEARS OF SERVICE.

ITEMS (2) AND (3) ABOVE REPRESENT DISABILITY RETIREMENT PAY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) OF THE 1949 ACT. THE RIGHT TO RECEIVE SUCH DISABILITY RETIREMENT PAY WAS DEPENDENT UPON AN EFFECTIVE AND VALID ELECTION OF OPTION (A) UNDER SECTION 411 WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THE 1949 LAW. SUCH FIVE- YEAR PERIOD EXPIRED AT MIDNIGHT ON OCTOBER 1, 1954. YOUR LETTER FURTHER DISCLOSES THAT IN THE ABSENCE OF EVIDENCE THAT SERGEANT MASON HAD FILED A TIMELY AND VALID ELECTION WITHIN THE FIVE-YEAR PERIOD, HIS DISABILITY RETIREMENT PAY CONTINUED TO BE COMPUTED UNDER THE PROVISIONS OF LAW THAT WERE IN FORCE ON SEPTEMBER 30, 1949.

ON NOVEMBER 2, 1965, THE SECRETARY OF THE ARMY, ACTING UNDER AUTHORITY OF 10 U.S.C. 1552, DIRECTED AS FOLLOWS IN A MEMORANDUM ADDRESSED TO THE ADJUTANT GENERAL:

"1. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF THOMAS MASON BE CORRECTED TO SHOW THAT PRIOR TO 1 OCTOBER 1954, THE APPLICANT ELECTED TO HAVE HIS RETIRED PAY COMPUTED UPON HIS YEARS OF SERVICE, UNDER THE PROVISIONS OF SECTION 411, PUBLIC LAW 351, 81ST CONGRESS (CAREER COMPENSATION ACT OF 1949).'

A COPY OF THE PROCEEDINGS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS DATED SEPTEMBER 29, 1965, IN THIS CASE (ENCLOSURE NO. 5 RECEIVED WITH YOUR LETTER), SHOWS THAT THE BOARD WAS INFLUENCED BY THE FACT "THAT THE APPLICANT RELATES DISCOVERY OF THE ERROR OR INJUSTICE TO INFORMATION OBTAINED IN SEPTEMBER 1965.' THE BOARD CONCLUDED, IN PERTINENT PART:

"2. THAT IT IS OBVIOUS THAT A TIMELY ELECTION BY THE APPLICANT TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIS OF HIS YEARS OF SERVICE WOULD HAVE BEEN TO HIS BENEFIT.

"3. THAT THE APPLICANT'S FAILURE TO TIMELY ELECT THE HIGHEST AVAILABLE RATE OF RETIRED PAY, RESULTING IN HIS RETENTION OF THE LOWEST RATE OF RETIRED PAY, WAS AN ACTION CONTRARY TO HIS BEST INTERESTS AND INDICATES EITHER NONRECEIPT OF THE ELECTION FORM LETTER OR INABILITY TO UNDERSTAND THE MONETARY ADVANTAGES ACCRUING TO PROPER AND TIMELY ELECTION.

"4. THAT IN CONSIDERATION OF THE FOREGOING, FAILURE OF THE APPLICANT TO OBTAIN COMPUTATION OF HIS RETIRED PAY IN THE AMOUNT MOST ADVANTAGEOUS TO HIM HAS RESULTED IN AN INJUSTICE.'

IT IS APPARENT THAT SERGEANT MASON DID NOT EXERCISE A VALID AND TIMELY ELECTION OF OPTION (A) UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. AS A CONSEQUENCE, HIS SECTION 411 DISABILITY RETIREMENT PAY STATUS IS ENTIRELY DEPENDENT UPON THE LEGAL EFFECT OF THE CORRECTIONS MADE IN HIS MILITARY RECORDS PURSUANT TO THE SECRETARY'S DIRECTIVE OF NOVEMBER 2, 1965.

AFTER REFERRING TO SEVERAL DECISIONS OF THIS OFFICE RELATING TO THE LEGAL CONSEQUENCES WHICH FLOWED FROM THE CORRECTIONS OF THE MILITARY RECORDS IN THOSE PARTICULAR CASES, YOU SUMMARIZE THE SITUATION CONCERNING SERGEANT MASON AND STATE THAT EVEN THOUGH IT HAS BEEN WELL ESTABLISHED THAT THE CORRECTION BOARD HAS THE AUTHORITY TO CHANGE THE FACTS IN A MILITARY RECORD:

"* * * IT SEEMS THAT CORRECTION ACTION OF THIS NATURE IN BEHALF OF A MEMBER WHO FAILED TO SUBMIT A SIGNED ELECTION WITHIN THE FIVE-YEAR PERIOD, FOR NO OTHER REASONS THAN A CLAIM OF NON-RECEIPT OF THE ELECTION FORM LETTER OR LACK OF UNDERSTANDING, IS AN ATTEMPT TO CIRCUMVENT THE FIVE-YEAR PERIOD FOR MAKING ELECTIONS AS PRESCRIBED IN SECTION 411.'

ACCORDINGLY, YOU EXPRESS DOUBT AS TO WHETHER THE CORRECTION ACTION TAKEN TO SHOW THAT PRIOR TO OCTOBER 1, 1954, SERGEANT MASON MADE AN OPTION (A) ELECTION UNDER SECTION 411 OF THE 1949 LAW TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED UPON HIS YEARS OF SERVICE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) OF THAT LAW IS PROPER, OR WHETHER SUCH ACTION IS WITHIN THE BROAD AUTHORITY GRANTED TO THE SECRETARY OF THE ARMY IN 10 U.S.C. 1552.

UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED IS AUTHORIZED TO CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUCH A CORRECTION AUTHORIZED BY THE STATUTE IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES, EXCEPT WHEN PROCURED BY FRAUD. THE CONCLUSION OF THE CORRECTION BOARD THAT THE FAILURE OF SERGEANT MASON TO OBTAIN COMPUTATION OF HIS DISABILITY RETIREMENT PAY IN THE AMOUNT MOST ADVANTAGEOUS TO HIM "HAS RESULTED IN AN INJUSTICE" WAS APPROVED BY THE SECRETARY OF WAR IN HIS DIRECTIVE OF NOVEMBER 2, 1965. UNDER THE BROAD POWERS CONFERRED UPON THE SECRETARY OF WAR IN 10 U.S.C. 1552 TO CORRECT ANY MILITARY RECORD IN HIS DEPARTMENT WHEN "HE CONSIDERS IT NECESSARY * * * TO REMOVE AN INJUSTICE" THERE CAN BE NO DOUBT THAT THE SECRETARY HAD THE AUTHORITY TO DIRECT THE CORRECTION OF SERGEANT MASON'S MILITARY RECORDS TO SHOW AN ELECTION PRIOR TO OCTOBER 1, 1954, OF OPTION (A) UNDER SECTION 411 OF THE 1949 LAW, EVEN THOUGH THE EFFECT OF SUCH CORRECTION IS TO CIRCUMVENT THE FIVE-YEAR LIMITATION PERIOD PRESCRIBED IN SECTION 411.

UPON A PROPER CORRECTION OF HIS RECORD A MEMBER IS ENTITLED TO ALL PAY WHICH WOULD OTHERWISE HAVE BECOME DUE UNDER APPLICABLE PROVISIONS OF LAW ON THE BASIS OF THE FACTS REFLECTED IN THE RECORD AS CORRECTED. WE HELD IN 34 COMP. GEN. 7 THAT THE RIGHTS OF A MEMBER WHOSE RECORD HAS BEEN CHANGED BY CORRECTION BOARD ACTION ARE FOR DETERMINATION SOLELY ON THE BASIS OF THE PROPER APPLICATION OF THE STATUTES TO THE FACTS AS SHOWN BY THE CORRECTED RECORD. SEE 40 COMP. GEN. 502, 504.

IN SERGEANT MASON'S CASE THE ACTION OF THE CORRECTION BOARD, AS APPROVED BY THE SECRETARY OF THE ARMY, ESTABLISHED A FACT WHICH DID NOT EXIST BEFORE THE CORRECTION WAS MADE. HENCE, UPON THE CORRECTION OF HIS MILITARY RECORDS SERGEANT MASON'S STATUS, WITH RESPECT TO THE PROVISIONS OF 10 U.S.C. 1552, CAME SQUARELY WITHIN THE SCOPE OF THE RULE STATED IN DECISION OF AUGUST 3, 1965, B-157236 (45 COMP. GEN. 57), ALSO CITED IN YOUR LETTER. THE IMPORTANT FACTOR IS THAT THE CORRECTION OF RECORD RESULTS IN A CHANGE OF FACTS AS FOUND IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF, SOME OF SUCH FACTS (AS DISTINGUISHED FROM A MERE RECITAL OR AFFIRMATION OF THE FACTS ALREADY IN THE MILITARY RECORD) AND THAT SUCH CHANGE, ADDITION, ELC., RESULTS IN A CHANGE IN HIS PAY RIGHTS UNDER THE LAW.

SINCE SERGEANT MASON'S MILITARY RECORD HAS BEEN CORRECTED UNDER THE AUTHORITY OF 10 U.S.C. 1552 TO SHOW THAT PRIOR TO OCTOBER 1, 1954, HE ELECTED UNDER OPTION (A) OF SECTION 411 OF THE 1949 ACT TO HAVE HIS DISABILITY RETIREMENT PAY COMPUTED AS PRESCRIBED IN SECTION 402 (D) OF THAT ACT ON THE BASIS OF HIS YEARS OF SERVICE, PAYMENT OF THE VOUCHER (RETURNED WITH SUPPORTING PAPERS) STATED IN HIS FAVOR FOR SUCH ADDITIONAL RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO JUNE 30, 1966, INCLUSIVE, IS AUTHORIZED IF OTHERWISE CORRECT.