B-201947.OM, NOV 16, 1981

B-201947.OM: Nov 16, 1981

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DIGEST: A MILITARY RESERVIST WHOSE CLAIM FOR BACK RETIRED PAY BEGINNING IN 1965 WAS FIRST RECEIVED IN GAO IN 1978. WHOSE CLAIM WAS PARTIALLY DENIED BASED ON THE 6-YEAR BARRING ACT (31 U.S.C. IS ENTITLED TO PAYMENT BECAUSE THE CLAIM FIRST ACCRUED WHEN FACTS IN HIS MILITARY RECORD WERE CHANGED BY THE BOARD FOR CORRECTION OF MILITARY RECORDS IN 1973. WAS A FACTUAL CHANGE IN THE RECORD WHICH GAVE RISE TO THE CLAIM AS OF THE DATE OF THE CORRECTION ACTION. AFMD - CLAIMS GROUP (ROOM 5858): RETURNED IS CLAIM FILE Z-2818409 PERTAINING TO THE CLAIM OF MAJOR DOUGLAS D. THE CLAIMS DIVISION ADVISED MAJOR JETER THAT PAYMENT ON HIS CLAIM FOR RETIRED PAY FOR THIS PERIOD WAS BARRED BY THE BARRING ACT OF OCTOBER 9.

B-201947.OM, NOV 16, 1981

SUBJECT: MAJOR DOUGLAS D. JETER'S CLAIM FOR RETIRED PAY - B-201947-O.M. DIGEST: A MILITARY RESERVIST WHOSE CLAIM FOR BACK RETIRED PAY BEGINNING IN 1965 WAS FIRST RECEIVED IN GAO IN 1978, AND WHOSE CLAIM WAS PARTIALLY DENIED BASED ON THE 6-YEAR BARRING ACT (31 U.S.C. SEC. 71A), IS ENTITLED TO PAYMENT BECAUSE THE CLAIM FIRST ACCRUED WHEN FACTS IN HIS MILITARY RECORD WERE CHANGED BY THE BOARD FOR CORRECTION OF MILITARY RECORDS IN 1973. THE CORRECTION OF HIS RECORDS GAVE HIM THE 20 YEARS OF QUALIFYING SERVICE HE NEEDED TO RECEIVE RETIRED PAY, AND THUS, WAS A FACTUAL CHANGE IN THE RECORD WHICH GAVE RISE TO THE CLAIM AS OF THE DATE OF THE CORRECTION ACTION.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS CLAIM FILE Z-2818409 PERTAINING TO THE CLAIM OF MAJOR DOUGLAS D. JETER, AUS, RETIRED, FOR RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1965, TO AUGUST 31, 1972. BY LETTER DATED NOVEMBER 26, 1979, THE CLAIMS DIVISION ADVISED MAJOR JETER THAT PAYMENT ON HIS CLAIM FOR RETIRED PAY FOR THIS PERIOD WAS BARRED BY THE BARRING ACT OF OCTOBER 9, 1940, AS AMENDED (31 U.S.C. SEC. 71A), ON THE BASIS THAT IT WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE MORE THAN 6 YEARS FROM THE DATE IT FIRST ACCRUED.

MAJOR JETER HAS APPEALED THAT DETERMINATION, AND IN VIEW OF NEW INFORMATION NOW OF RECORD, WE FIND THAT HIS CLAIM FOR RETIRED PAY FOR THIS PERIOD IS NOT BARRED BY 31 U.S.C. SEC. 71A AND MAY BE PAID.

IN CONSIDERING MAJOR JETER'S APPEAL WE OBTAINED ADDITIONAL INFORMATION CONCERNING HIS CASE FROM THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. THE INFORMATION NOW OF RECORD SHOWS THAT ON DECEMBER 29, 1950, MAJOR JETER WAS DISCHARGED FROM HIS COMMISSION IN THE OFFICERS RESERVE CORPS, WITH A GENERAL DISCHARGE UNDER HONORABLE CONDITIONS AS A RESULT OF HIS UNSATISFACTORY CONDUCT DURING ANNUAL TRAINING DUTY BETWEEN AUGUST 6 AND 15, 1950. ON JANUARY 22, 1953, THE ARMY DISCHARGE REVIEW BOARD DENIED HIS REQUEST FOR A CHANGE IN THE CHARACTER OF HIS DISCHARGE. ON MARCH 19, 1953, THE ADJUTANT GENERAL ADVISED MAJOR JETER THAT FOR PURPOSES OF RETIREMENT, UNDER THE PROVISIONS OF 10 U.S.C. SECS. 1331-1337 (FORMERLY TITLE III, ACT OF JUNE 29, 1948, CH. 708), HE HAD 19 YEARS, 8 MONTHS, AND 5 DAYS OF SATISFACTORY FEDERAL SERVICE. THIS WAS NOT A SUFFICIENT AMOUNT TO MEET THE REQUIREMENT OF 20 YEARS OF SERVICE FOR ENTITLEMENT TO RETIRED PAY.

YEARS LATER MAJOR JETER PETITIONED THE BOARD FOR CORRECTION OF MILITARY RECORDS UNDER THE PROVISIONS OF 10 U.S.C. SEC. 1552. SECTION 1552 PROVIDES IN PERTINENT PART THAT:

"THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. *** EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES."

HE REQUESTED THAT HIS RECORDS BE CORRECTED TO SHOW EITHER THAT HIS COMMISSION WAS REINSTATED, OR THAT HE BE GIVEN AN HONORABLE DISCHARGE, OR THAT HE BE GIVEN CREDIT FOR 20 YEARS OF QUALIFYING SERVICE FOR RESERVE RETIREMENT BENEFITS.

THE UNDER SECRETARY OF THE ARMY, ON MARCH 29, 1973, APPROVED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE BOARD AND DIRECTED THAT THE RECORDS OF DOUGLAS D. JETER BE CORRECTED TO SHOW THAT HE WAS TRANSFERRED TO THE RETIRED RESERVE ON OCTOBER 25, 1950, UPON COMPLETION OF 20 YEARS OF QUALIFYING FEDERAL SERVICE. THE CLAIMANT WAS NOTIFIED IN A LETTER DATED APRIL 30, 1973, THAT THE SECRETARY OF THE ARMY HAD APPROVED THE CORRECTION OF RECORDS. THE LETTER ALSO EXPLAINED THE APPLICATION PROCEDURE FOR RECEIVING RETIREMENT BENEFITS.

THE CLAIMANT FILED A CLAIM FOR HIS RETIRED PAY WHICH WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 4, 1978. HE WAS FOUND TO HAVE BECOME ENTITLED TO RETIRED PAY EFFECTIVE NOVEMBER 1, 1965, UPON REACHING THE REQUIRED AGE 60 AT THAT TIME AND, PURSUANT TO THE CORRECTION OF HIS RECORDS, HAVING THE REQUIRED 20 YEARS OF SERVICE. 10 U.S.C. SEC. 1331. AS A RESULT, CURRENT MONTHLY RETIRED PAY PAYMENTS WERE BEGUN AND HE WAS PAID RETIRED BACKPAY DUE FOR THE 6 YEARS PRIOR TO RECEIPT OF HIS CLAIM IN OUR OFFICE (AUGUST 4, 1972, THROUGH AUGUST 4, 1978). HOWEVER, THE BACK RETIRED PAY DUE FOR THE PERIOD NOVEMBER 1965 THROUGH AUGUST 3, 1972, WAS DETERMINED TO BE BARRED BY 31 U.S.C. SEC. 71A AS HAVING ACCRUED MORE THAN 6 YEARS PRIOR TO RECEIPT OF THE CLAIM IN OUR OFFICE.

THE CLAIMANT NOW REQUESTS RECONSIDERATION OF THAT DETERMINATION.

THE QUESTION IN THIS CASE IS WHEN DID MAJOR JETER'S CLAIM FOR RETIRED PAY FIRST ACCRUE FOR THE PURPOSES OF THE BARRING ACT: IN NOVEMBER 1965, EACH MONTH THEREAFTER, OR WHEN THE CORRECTION BOARD ACTION WAS APPROVED IN MARCH 1973.

CASES INTERPRETING CORRECTIONS OF RECORDS UNDER 10 U.S.C. SEC. 1552 HAVE HELD THAT IN ORDER TO GIVE THE CLAIMANT A NEW CLAIM (ONE FIRST ACCRUING UPON THE CORRECTION BOARD'S ACTION), THE CORRECTION MADE BY THE CORRECTION BOARD MUST BE AN ACTUAL CHANGE IN THE FACTS SET OUT IN THE RECORD, WHICH CHANGE GIVES RISE TO THE ADDITIONAL PAYMENT. A CORRECTION WHICH RESULTS FROM A CHANGE IN A LAW OR A SHIFT IN AGENCY INTERPRETATION DOES NOT GIVE THE INDIVIDUAL A NEW CLAIM. SEE B-191650, MAY 18, 1978; B-179467, MAY 2, 1974. ALSO, AN AFFIRMATION OF FACTS ALREADY IN A MILITARY RECORD DOES NOT CONSTITUTE A CHANGE IN THE RECORD WHICH GIVES RISE TO A NEW CLAIM. SEE 39 COMP.GEN. 178 (1959); 45 COMP.GEN. 538 (1966); AND 50 COMP.GEN. 125, 127 (1970).

FROM THE RECORDS BEFORE US IT IS NOT ENTIRELY CLEAR WHAT MAJOR JETER'S STATUS WAS DURING THE PERIOD JULY 1, THROUGH DECEMBER 29, 1950. HE WAS APPARENTLY ON ANNUAL TRAINING DUTY DURING AUGUST 6-15, 1950, BUT, IN VIEW OF HIS ALLEGED MISCONDUCT, IT MAY BE THAT THE ARMY DID NOT CONSIDER THAT PERIOD AS QUALFYING FOR RETIREMENT CREDIT. HOWEVER, IT IS CLEAR THAT PRIOR TO THE CORRECTION BOARD ACTION THE ARMY DID NOT REGARD HIM AS HAVING COMPLETED 20 YEARS OF SERVICE FOR RETIREMENT PURPOSES. IN THE CIRCUMSTANCES OF THIS CASE, IT IS OUR VIEW THAT THE CORRECTION BOARD'S ACTION CHANGING MAJOR JETER'S MILITARY RECORD TO SHOW THAT HE HAD EARNED SUFFICIENT RETIREMENT CREDIT TO QUALIFY FOR RETIRED PAY MAY BE CONSIDERED A FACTUAL CHANGE ENTITLING HIM TO RETIRED PAY UPON REACHING AGE 60.

THUS, HIS CLAIM MAY BE CONSIDERED TO HAVE ACCRUED ON THE DATE OF APPROVAL OF THE CORRECTION BOARD'S ACTION, MARCH 29, 1973. SINCE HIS CLAIM WAS RECEIVED IN OUR OFFICE ON AUGUST 4, 1978, MAJOR JETER'S CLAIM IS NOT BARRED, AND HE SHOULD BE PAID THE FULL UNPAID RETIRED PAY WHICH ACCRUED ON OR AFTER NOVEMBER 1, 1965.