B-178077, MAR 22, 1973

B-178077: Mar 22, 1973

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WREDE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 4. DATE YOU WERE RELEASED FROM ACTIVE DUTY. WHICH WAS DENIED BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS. YOU WERE RELEASED FROM ACTIVE DUTY JANUARY 31. UNDER WHICH YOU WERE RETIRED PROVIDES THAT THE SECRETARY OF THE AIR FORCE MAY. AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER. THE RECORD FURTHER SHOWS THAT YOU WERE FOUND QUALIFIED FOR SEPARATION AND RETIREMENT EFFECTIVE FEBRUARY 1. YOU WERE SEEN EARLY IN JANUARY 1971 AND SCHEDULED FOR SURGERY AT THE EARLIEST TIME ON JANUARY 26. YOU WERE HOSPITALIZED FROM JANUARY 25 THROUGH FEBRUARY 17. AT WHICH TIME YOU WERE RELEASED FROM TREATMENT.

B-178077, MAR 22, 1973

MILITARY PERSONNEL - RETIREMENT RECORD - CORRECTION BOARD'S DETERMINATION DECISION AFFIRMING DENIAL OF THE CLAIM OF MAJ. KENNETH W. WREDE, USAR, RETIRED, FOR THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY FOR A PERIOD SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY. RETIREMENT ORDERS OF A MEMBER MAY NOT BE REVOKED AFTER THE MEMBER'S RETIREMENT IN THE ABSENCE OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW OR MATHEMATICAL MISCALCULATION. SEE 40 COMP. GEN. 419 (1961). MOREOVER, GAO MAY NOT REVIEW A MILITARY RECORD CORRECTION BOARD'S DETERMINATION NOT TO CHANGE A MEMBER'S RETIREMENT DATE. 10 U.S.C. 1552(A).

TO MAJ. KENNETH W. WREDE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 4, 1973, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 29, 1973, OF OUR TRANSPORTATION AND CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY FOR A PERIOD SUBSEQUENT TO JANUARY 31, 1971, DATE YOU WERE RELEASED FROM ACTIVE DUTY, BASED UPON A REQUEST FOR CORRECTION OF YOUR RETIREMENT DATE OF FEBRUARY 1, 1971, WHICH WAS DENIED BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS.

THE RECORD SHOWS THAT BY SPECIAL ORDER NO. AC-32800, DATED OCTOBER 19, 1970, YOU WERE RELEASED FROM ACTIVE DUTY JANUARY 31, 1971, AND RETIRED EFFECTIVE FEBRUARY 1, 1971, UNDER THE PROVISIONS OF 10 U.S.C. 8911 IN THE GRADE OF MAJOR, AT WHICH TIME YOU HAD 20 YEARS AND 29 DAYS OF ACTIVE SERVICE AND SERVICE FOR BASIC PAY. THE SECTION OF THE U.S.C. UNDER WHICH YOU WERE RETIRED PROVIDES THAT THE SECRETARY OF THE AIR FORCE MAY, UPON THE OFFICER'S REQUEST RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE AIR FORCE WHO HAS AT LEAST 20 YEARS OF SERVICE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.

THE RECORD FURTHER SHOWS THAT YOU WERE FOUND QUALIFIED FOR SEPARATION AND RETIREMENT EFFECTIVE FEBRUARY 1, 1971. HOWEVER, DURING DECEMBER 1970 YOU REQUESTED SURGERY FOR HEMORRHOIDS. SUCH ELECTIVE SURGERY COULD NOT BE PERFORMED DURING THE MONTH OF DECEMBER 1970 DUE TO CURTAILMENT OF OPERATIONS IN THE SURGICAL SUITE BECAUSE OF REQUIRED MAINTENANCE. HENCE, YOU WERE SEEN EARLY IN JANUARY 1971 AND SCHEDULED FOR SURGERY AT THE EARLIEST TIME ON JANUARY 26, 1971, AND YOU WERE HOSPITALIZED FROM JANUARY 25 THROUGH FEBRUARY 17, 1971, AT WHICH TIME YOU WERE RELEASED FROM TREATMENT.

ON APRIL 12, 1971, YOU APPLIED TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS TO HAVE YOUR RETIREMENT DATE CORRECTED EITHER TO MARCH 1, 1971, OR MAY 1, 1971. IN LETTER DATED NOVEMBER 9, 1971, THE EXECUTIVE SECRETARY OF THE CORRECTION BOARD INFORMED YOU THAT THE SURGEON GENERAL IS OF THE OPINION THAT YOUR CASE WAS PROPERLY PROCESSED AND NO ERROR OR INJUSTICE WAS DETERMINED AND NO CHANGE IN THE RECORD IS WARRANTED. HENCE, IN THE ABSENCE OF RELEVANT EVIDENCE DEMONSTRATING AN ERROR OR INJUSTICE, FAVORABLE ACTION BY THE BOARD ON YOUR REQUEST WAS NOT POSSIBLE. THEREAFTER, YOU MADE CLAIM TO THIS OFFICE AND, IN EFFECT, REQUESTED THIS OFFICE TO REVIEW THE DECISION OF THE CORRECTION BOARD.

AS STATED IN THE SETTLEMENT OF JANUARY 29, 1973, UNDER THE PROVISIONS OF 10 U.S.C. 1552(A) THE SECRETARY OF A MILITARY DEPARTMENT MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE AND EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES. SINCE THE CORRECTION BOARD REFUSED TO CORRECT YOUR RECORDS IN THE MANNER REQUESTED BY YOU AND SINCE YOU HAVE BEEN PAID ALL THAT YOU ARE ENTITLED TO RECEIVE SUBSEQUENT TO JANUARY 31, 1971, ON THE PRESENT RECORD THERE IS NO ACTION WE LEGALLY MAY TAKE IN THE MATTER. HOWEVER, IT IS BELIEVED THAT WE MAY EXPLAIN YOUR SITUATION IN ORDER THAT YOU WILL UNDERSTAND THE LEGAL ASPECTS THEREOF.

IT IS WELL SETTLED THAT WHEN A MEMBER OF THE UNIFORMED SERVICES IS RETIRED AND SUCH RETIREMENT HAS BECOME LEGALLY ACCOMPLISHED, THE RETIREMENT ORDERS CANNOT BE REVOKED IN THE ABSENCE OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE OF LAW OR MATHEMATICAL MISCALCULATION. SEE 40 COMP. GEN. 419 (1961) AND 46 COMP. GEN. 671 (1967), COPIES HEREWITH.

APPLICATION FOR VOLUNTARY RETIREMENT FOR YEARS OF SERVICE MUST BE FILED AS MUCH AS 12 MONTHS IN ADVANCE OF THE DATE OF SEPARATION AND IN YOUR CASE RETIREMENT WAS APPROVED ON OCTOBER 19, 1970, OVER 3 MONTHS PRIOR TO THE DATE OF SEPARATION. YOU UNDERWENT A MEDICAL EXAMINATION AND WERE FOUND TO BE ELIGIBLE FOR RETIREMENT AND WERE WELL AWARE OF YOUR RETIREMENT ORDERS WHICH FIXED JANUARY 31, 1971, AS THE DATE OF YOUR RELEASE FROM ACTIVE DUTY. THOSE ORDERS WERE NEVER RESCINDED AND AS EVIDENCED BY YOUR APPLICATION TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS YOU WERE EQUALLY WELL AWARE THAT YOUR RETIREMENT BECAME EFFECTIVE FEBRUARY 1, 1971, AND THAT THE FIXING OF ANY OTHER DATE COULD ONLY BE ACCOMPLISHED BY A CORRECTION OF YOUR RECORDS.

YOU REFER TO PARAGRAPH 1-9 OF AIR FORCE MANUAL 35-4 (C2), JUNE 4, 1970, AS BEING APPLICABLE TO YOUR SITUATION. HOWEVER, THAT MANUAL SPECIFICALLY PRESCRIBES THE PROCEDURE FOR RETIRING, DISCHARGING OR RETAINING MEMBERS WHO, BECAUSE OF PHYSICAL DISABILITY, ARE UNFIT TO PERFORM THEIR DUTIES. YOU WERE FOUND PHYSICALLY ELIGIBLE FOR RETIREMENT FOR YEARS OF SERVICE AND THE SURGERY FOR WHICH YOU WERE HOSPITALIZED ON JANUARY 25, 1971, WAS AN ELECTIVE PROCEDURE AND NOT A DISABLING CONDITION REQUIRING A CHANGE IN YOUR RETIREMENT DATE. HENCE, PARAGRAPH 1-9, TAKEN OUT OF ITS NORMAL CONTEXT, HAS NO BEARING UPON YOUR VOLUNTARY RETIREMENT FOR YEARS OF SERVICE.

SINCE, ON THE RECORD YOU WERE RELEASED FROM ACTIVE DUTY ON JANUARY 31, 1971, AND COMPLETELY RETIRED FOR YEARS OF SERVICE EFFECTIVE FEBRUARY 1, 1971, THERE IS NO AUTHORITY FOR PAYMENT TO YOU OF ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO THAT DATE AND THE SETTLEMENT OF JANUARY 29, 1973, MUST BE SUSTAINED.