B-74279, MAY 4, 1948, 27 COMP. GEN. 665

B-74279, MAY 4, 1948, 27 COMP. GEN. 665

PAYMENTS TO MILITARY PERSONNEL BASED ON CORRECTED RECORDS THE AUTHORITY CONFERRED UPON THE SECRETARY OF THE ARMY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD, RESPECTIVELY, BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE, DOES NOT VEST IN SAID DEPARTMENT HEADS, OR IN THIS OFFICE, ANY AUTHORITY TO ORDER OR DIRECT THE ALLOWANCE OR PAYMENT OF ANY CLAIM FOR MONEY, OR TO USE APPROPRIATED FUNDS TO PAY AND CLAIM FOR MONEY, BASED ON CORRECTIONS MADE IN THE MILITARY OR NAVAL RECORDS OF AN INDIVIDUAL UNDER AUTHORITY OF SAID SECTION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, MAY 4, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 5, 1948, WITH ENCLOSURES, REQUESTING A DECISION ON CERTAIN QUESTIONS INVOLVING THE AUTHORITY FOR THE USE OF APPROPRIATED FUNDS TO MAKE PAYMENTS BASED ON CORRECTIONS MADE IN THE RECORDS OF MILITARY PERSONNEL PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, 5 U.S.C. 191 (A), WHICH PROVIDES AS FOLLOWS:

THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD, RESPECTIVELY, UNDER PROCEDURES SET UP BY THEM, AND ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS, ARE AUTHORIZED TO CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE.

YOU STATE THAT "WITH A VIEW TO MAKING EFFECTIVE THIS AUTHORITY OF LAW" (SECTION 207) THERE HAS BEEN ESTABLISHED IN THE DEPARTMENT OF THE ARMY A BOARD ON CORRECTION OF MILITARY RECORDS AND THAT:

THE BOARD HAS REVIEWED AND RECOMMENDED THE CORRECTION OF THE MILITARY RECORDS IN THE CASE OF A NUMBER OF MILITARY PERSONNEL, WHICH RECOMMENDATIONS HAVE BEEN PRESENTED FOR APPROVAL OF THE SECRETARY OF THE ARMY WITH DIRECTIVES FOR MY APPROVAL AND SIGNATURE TO THE VARIOUS INTERESTED AGENCIES OF THE DEPARTMENT OF THE ARMY TO CARRY OUT ITS RECOMMENDED ACTION, AND WHICH INVOLVE, AMONG OTHER THINGS, A DIRECTIVE FOR THE EXPENDITURE OF PUBLIC FUNDS IN PURPORTED PURSUANCE OF THE AUTHORITY OF THE STATUTE TO CORRECT ERRORS IN SUCH MILITARY RECORDS AND TO REMOVE INJUSTICES.

YOUR FIRST QUESTION RELATES TO THE CASE OF ROBERT E. LAURITZEN AND TO SIMILAR CASES, IT BEING INDICATED THAT LAURITZEN'S CASE IS ILLUSTRATIVE OF OTHERS WHICH ARE PENDING BEFORE YOU. FROM AN ENCLOSURE RECEIVED WITH YOUR LETTER, IT APPEARS THAT LAURITZEN, WHILE SERVING IN THE GRADE OF MASTER SERGEANT WITH THE 853RD BOMBARDMENT SQUADRON, 491ST BOMBARDMENT GROUP (H) IN ENGLAND, WAS TRIED BY SPECIAL COURT MARTIAL ON NOVEMBER 20, 1944, FOR VIOLATION OF THE 96TH ARTICLE OF WAR; THAT HE WAS CONVICTED AND SENTENCED TO CONFINEMENT AT HARD LABOR FOR SIX MONTHS, TO FORFEIT $22 PER MONTH AND TO BE REDUCED TO THE GRADE OF PRIVATE; AND THAT THE UNEXECUTED PORTION OF HIS SENTENCE WAS REMITTED EFFECTIVE FEBRUARY 1, 1945. ALSO, IT IS DISCLOSED THAT ON MAY 21, 1945, A FORMER OFFICER MADE A SWORN STATEMENT THAT HE HAD GIVEN FALSE TESTIMONY AT LAURITZEN'S TRIAL; THAT SUCH STATEMENT EXONERATED LAURITZEN OF THE CHARGES MADE AGAINST HIM AT THE TRIAL; THAT ON MAY 23, 1945, A SPECIAL COURT MARTIAL ORDER WAS ISSUED FOR THE PURPOSE OF RESTORING LAURITZEN TO HIS FORMER GRADE AND PAY AND REIMBURSING HIM THE AMOUNT FORFEITED DURING THE PERIOD OF CONFINEMENT BUT THAT SUCH ORDER WAS INVALIDATED AS HAVING BEEN ISSUED WITHOUT LEGAL AUTHORITY; THAT LAURITZEN WAS PROMOTED (AGAIN) TO THE GRADE OF MASTER SERGEANT ON OCTOBER, 1945; AND THAT HE WAS HONORABLY DISCHARGED ON OCTOBER 20, 1945,"WITHOUT RECEIVING REQUITAL OF THE DIFFERENCE IN PAY LOST BETWEEN THE GRADES OF PRIVATE AND MASTER SERGEANT OR OF THE PENALTY IMPOSED WHILE SERVING HIS SENTENCE.' YOUR LETTER STATES THAT THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS HAS FOUND AND HAS PREPARED FOR YOUR SIGNATURE A DIRECTIVE TO THE ADJUTANT GENERAL TO CORRECT THE MILITARY RECORDS OF LAURITZEN TO SHOW THAT HIS CONVICTION BY A SPECIAL COURT MARTIAL IN NOVEMBER 1944 WAS IN ERROR AND WAS BASED ON TESTIMONY SUBSEQUENTLY DISCOVERED TO BE FALSE; THAT HE WAS A MASTER SERGEANT FROM JUNE 15, 1944 TO OCTOBER 20, 1945; AND THAT HE LOST NO TIME UNDER THE 107TH ARTICLE OF WAR. YOUR LETTER STATES HAT:

THE RECOMMENDATION OF THE BOARD IS ALSO, AND THE SECRETARY OF THE ARMY HAS BEEN REQUESTED TO DIRECT, THAT THE CHIEF OF FINANCE PAY TO LAURITZEN THE SUM OF $1,017.60, IN FULL SATISFACTION OF HIS CLAIM AGAINST THE UNITED STATES FOR REIMBURSEMENT OF AMOUNTS PAID AS FINES, AND FOR LOSSES OF ARMY PAY RESULTING FROM HIS REDUCTION TO THE GRADE OF PRIVATE, PURSUANT TO THE SENTENCE OF A SPECIAL COURT-MARTIAL WHICH, IT WILL BE NOTED, COVERS FORFEITURES (NOT FINES) ADJUDGED AS A RESULT OF THE COURT-MARTIAL (THE SENTENCE OF WHICH HAS BEEN SET ASIDE AND MODIFIED ONLY AS TO THE UNEXECUTED PORTION THEREOF), AND AN AMOUNT OTHERWISE REPRESENTING THE DIFFERENCE IN PAY BETWEEN THAT OF MASTER SERGEANT, FROM WHICH DEMOTED, AND THAT OF PRIVATE, IN WHICH LAURITZEN SERVED FROM THE DATE OF DEMOTION UNTIL HIS DISCHARGE.

THOSE PARTS OF YOUR LETTER WHICH PRESENT THE QUESTIONS ON WHICH DECISION IS REQUESTED ARE AS FOLLOWS:

THE QUESTIONS WHICH ARISE IN CONNECTION WITH THE PROBLEM GENERALLY, AND AS RELATED TO THE LAURITZEN CASE, WHICH, AS STATED, IS BUT ILLUSTRATIVE OF OTHER CASES BEFORE, OR WHICH COME BEFORE THE BOARD, AND ON WHICH YOUR DECISION IS REQUESTED MAY BE STATED AS FOLLOWS:

(1) IN THE ABSENCE OF SPECIFIC LANGUAGE IN SECTION 207, SUPRA, GRANTING OR AUTHORIZING AN APPROPRIATION, DOES SECTION 207 AUTHORIZE THE EXPENDITURE OF PUBLIC FUNDS TO CARRY OUT THE APPROVED (BY THE SECRETARY OF THE ARMY) RECOMMENDATIONS OF THE BOARD UNDER SECTION 207- -

(A) AS TO UNREMITTED FINES AND/OR FORFEITURES WHICH HAVE BEEN ASSESSED BY COURT-MARTIAL ACTION, TO THE EXTENT THE SENTENCE OF WHICH HAS NOT BEEN SET ASIDE OR MODIFIED---

(1) WHICH HAVE NOT YET BEEN DEPOSITED TO MISCELLANEOUS RECEIPTS, AND

(2) WHICH HAVE BEEN DEPOSITED TO MISCELLANEOUS RECEIPTS;

(B) AS TO ITEMS OF FORFEITED PAY WHICH REMAINS UNEXPENDED IN THE APPROPRIATE APPROPRIATIONS, WHICH APPROPRIATIONS

(1) HAVE NOT REVERTED TO THE GENERAL FUND OF THE TREASURY, AND

(2) HAVE REVERTED TO THE GENERAL FUND OF THE TREASURY;

(C) AS TO PAY OF THE HIGHER GRADE FROM WHICH THE SOLDIER IN QUESTION WAS DEMOTED WHERE THE SOLDIER PERFORMED NO DUTY IN SAID HIGHER GRADE DURING THE PERIOD OF HIS DEMOTION BY SPECIAL COURT-MARTIAL ORDER.

IF YOUR ANSWER TO (C) ABOVE IS IN THE AFFIRMATIVE, MAY SUCH PAYMENT BE MADE OUT OF CURRENT APPROPRIATIONS WHERE THE SERVICES INVOLVED ARE FOR PERIODS COVERED BY APPROPRIATIONS WHICH HAVE LAPSED BY OPERATION OF LAW, OR MUST SUCH CLAIMS FOR PAYMENTS BE CERTIFIED TO THE GENERAL ACCOUNTING OFFICE FOR AN APPROPRIATION TO PAY THEREFOR.

(2) IF ACTION IS TAKEN BY THE BOARD AND APPROVED BY THE SECRETARY OF THE ARMY UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT, QUOTED SUPRA, TO CORRECT THE RECORDS OF MILITARY OR FORMER MILITARY PERSONNEL ERRONEOUSLY COMMISSIONED IN THE ARMY OF THE UNITED STATES AFTER COMPLETION OF TRAINING AS AN AVIATION CADET UNDER THE ARMY AVIATION CADET ACT APPROVED 3 JUNE 1941 (55 STAT. 239, 240), TO SHOW THEIR STATUS TO BE THAT OF AIR CORPS RESERVE OFFICERS, INSTEAD OF AUS OFFICERS, MAY THE $500 LUMP SUM PAYMENTS, PROVIDED BY THE ACT OF 16 JUNE 1936 (49 STAT. 1524), AS AMENDED, OTHERWISE DUE AIR CORPS RESERVE OFFICERS BE PAID FOR PERIODS DURING WHICH SUCH PERSONNEL ACTUALLY HELD COMMISSIONS IN THE ARMY OF THE UNITED STATES DUE TO ADMINISTRATIVE ERROR? IN THIS CONNECTION SEE 25 COMP. GEN. 512.

(3) IF ACTION IS TAKEN BY THE BOARD, AND APPROVED BY THE SECRETARY OF THE ARMY, TO CORRECT THE RECORD OF DEPARTMENT OF THE ARMY PERSONNEL FROM A DISCHARGE TO RELEASE FROM ACTIVE DUTY, OR TO SHOW THAT THE FINDING OF INCAPACITY, RESULTING IN DISCHARGE FROM THE SERVICE, CONSTITUTES A FINDING THAT SUCH PERSONNEL WERE DISABLED IN LINE OF DUTY, OR TO SHOW THAT THE FINDING OF INCAPACITY, RESULTING IN DISCHARGE FROM THE SERVICE, CONSTITUTES A FINDING THAT SUCH PERSONNEL WERE DISABLED IN LINE OF DUTY, MAY SUCH PERSONNEL BE PAID RETIRED PAY RETROACTIVELY UNDER THE PROVISIONS OF LAW RELATING TO RETIREMENT FOR DISABILITY OF MILITARY PERSONNEL? SEE IN THIS CONNECTION YOUR DECISION B-64080 OF 9 DECEMBER 1947 IN THE CASE OF 2D LT. HELEN M. YORK, AS ILLUSTRATIVE GENERALLY OF THE TYPE OF CASE WITHIN THE PURVIEW OF THIS QUESTION.

IN CONNECTION WITH QUESTION (1) (A) (1) AND (2) ABOVE, ATTENTION IS INVITED TO THE ITEMS APPEARING IN THE MILITARY APPROPRIATION ACT FOR 1948, APPROVED 30 JULY 1947, UNDER " FINANCE SERVICE, ARMY" AUTHORIZING THE "REPAYMENT OF AMOUNTS DETERMINED BY THE SECRETARY OF WAR, OR OFFICERS DESIGNATED BY HIM, TO HAVE ERRONEOUSLY COLLECTED FROM MILITARY AND CIVILIAN PERSONNEL IN AND UNDER THE MILITARY ESTABLISHMENT," THE QUESTION ARISING IN CONNECTION WITH SAID APPROPRIATION ACT ITEM WHETHER IT CONSTITUTES AUTHORITY TO REFUND OUT OF THAT APPROPRIATION ( FINANCE SERVICE, ARMY) ANY FINES AND/OR FORFEITURES WHICH MAY HAVE BEEN CARRIED INTO, AND FOR DEPOSIT TO MISCELLANEOUS RECEIPTS, OR OTHERWISE, ASSUMING THAT SECTION 207 CITED SUPRA IS CONSTRUED TO AUTHORIZED THE EXPENDITURE OF PUBLIC FUNDS TO CARRY OUT ITS OBJECTS AND PURPOSES. AS TO QUESTION (1) (C) ABOVE, ATTENTION IS INVITED TO THE DECISION OF YOUR OFFICE B-60997 OF 2 APRIL 1947.

IN THE EVENT YOUR DECISION IS THAT SECTION 207 CONTAINS AUTHORITY TO EXPEND PUBLIC FUNDS TO CARRY OUT ITS PURPOSES, BUT YOUR ANSWER TO QUESTION (1) (A) (2) AND (B) (2) IS IN THE NEGATIVE BECAUSE SUCH FUNDS ARE NO LONGER AVAILABLE FOR EXPENDITURE BY ADMINISTRATIVE AGENCIES WITHOUT ADDITIONAL APPROPRIATION AUTHORITY, MAY CLAIMS, BASED ON APPROPRIATE ACTION TAKEN ON THE BOARD'S RECOMMENDATION BE FORWARDED TO YOUR OFFICE FOR CERTIFICATION TO CONGRESS AS APPROVED AND AUDITED CLAIMS BASED ON APPROPRIATE ACTION TAKEN ON THE BOARD'S RECOMMENDATION BE FORWARDED TO YOUR OFFICE FOR CERTIFICATION TO CONGRESS AS APPROVED AND AUDITED CLAIMS, OR FOR CONSIDERATION OF THE CONGRESS UNDER THE ACT OF 10 APRIL 1928 (45 STAT. 413; 31 U.S.C. 236), OR FOR OTHER ACTION.

THERE WERE RECEIVED WITH YOUR LETTER THE FOLLOWING ENCLOSURES: COPY OF WAR DEPARTMENTS MEMORANDUM NO. 400-20-2, DATED APRIL 17, 1947, RELATING TO THE PURPOSE, JURISDICTION AND PROCEDURES OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS, AND COPY OF CHANGES NO. 1 THERETO, DATED AUGUST 13, 1947; COPY OF OPINION OF THE ATTORNEY GENERAL, DATED FEBRUARY 24, 1947, 40 OP. ATTY. GEN.--- ( OPIN. NO. 119), RELATING TO THE SCOPE OF SECTION 207, SUPRA; COPY OF MEMORANDUM FOR THE SECRETARY OF THE ARMY FROM THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS, DATED OCTOBER 8, 1947, RELATING TO THE CASE OF ROBERT E. LAURITZEN; AND OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, DATED JANUARY 16, 1948, WITH REFERENCE TO THE CASE OF LAURITZEN. THE OPINION OF JUDGE ADVOCATE GENERAL IS IN PART AS FOLLOWS:

2. ARTICLE OF WAR 50 AUTHORIZES THE MITIGATION OR REMISSION OF ANY UNEXECUTED PORTION OF A SENTENCE ADJUDGED BY A COURT-MARTIAL AND FURTHER PROVIDES THAT THE POWER OF REMISSION AND MITIGATION SHALL EXTEND TO ALL UNCOLLECTED FORFEITURES. THE OPINIONS OF THE JUDGE ADVOCATE GENERAL, RECOGNIZED BY THE CHIEF OF FINANCE (SEE PAR. 4, AR 35-2460, 21 MAY 1942) ARE TO THE EFFECT THAT REIMBURSEMENT SHOULD BE MADE TO A SOLDIER WHOSE PAY HAS BEEN WITHHELD UNDER AN ILLEGAL SENTENCE. THE ATTORNEY GENERAL, INTERPRETING SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 ( PUBLIC LAW 601, 79TH CONGRESS), HOLDS THAT ALTHOUGH UNDER THE AUTHORITY OF THE CITED ACT CASES INVOLVING COURTS-MARTIAL SENTENCES OF DISHONORABLE DISCHARGE ARE WITHIN THE JURISDICTION OF THE BOARD THEREIN CREATED, THE LANGUAGE OF THE ACT CANNOT BE CONSTRUED AS PERMITTING THE REOPENING OF THE PROCEEDINGS, FINDINGS, AND JUDGMENTS OF COURTS-MARTIAL SO AS TO DISTURB THE CONCLUSIVENESS OF SUCH JUDGMENTS WHICH HAS LONG BEEN RECOGNIZED BY THE COURTS.

3. ASSUMING (THE RECORD OF TRIAL IN THE INSTANT CASE HAS NOT BEEN EXAMINED IN THIS OFFICE) THAT THERE WAS ADJUDGED AND PROMULGATED A LEGAL AND VALID SENTENCE TO FORFEITURE OF PAY, WHICH SENTENCE HAS SINCE BEEN DULY EXECUTED, THERE WOULD THEREFORE SEEM TO BE NO AUTHORITY TO REIMBURSE THE CONVICTED SOLDIER FOR THE AMOUNT FORFEITED, EVEN THOUGH THE BOARD APPOINTED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT, AND THE SECRETARY OF THE ARMY HAVE DETERMINED THAT THE RECORDS OF THE SOLDIER BE CORRECTED SO AS TO SHOW HIS STATUS AFTER TRIAL TO BE THE SAME AS THOUGH NO CONVICTION HAD BEEN HAD.

4. INSOFAR AS THERE IS CONCERNED THE PAY OF THE SOLDIER AFTER HIS CONVICTION AND WHILE SERVING IN A LOWER GRADE PURSUANT TO THE SENTENCE OF REDUCTION, THE COMPTROLLER GENERAL THUS FAR APPEARS TO CONSIDER THE GRADE IN WHICH THE SOLDIER SERVES AND IS REGARDED ADMINISTRATIVELY AS DETERMINATIVE OF THE PAY TO WHICH HE IS ENTITLED.

SECTION 207, SUPRA, TO BE CONSTRUED PROPERLY, MUST BE READ IN CONJUNCTION WITH SECTION 131 OF THE ACT, 60 STAT. 831, WHICH PROVIDES AS FOLLOWS:

NO PRIVATE BILL OR RESOLUTION (INCLUDING SO-CALLED OMNIBUS CLAIMS OR PENSION BILLS), AND NO AMENDMENT TO ANY BILL OR RESOLUTION, AUTHORIZING OR DIRECTING (1) THE PAYMENT OF MONEY FOR PROPERTY DAMAGES, FOR PERSONAL INJURIES OR DEATH FOR WHICH SUIT MAY BE INSTITUTED UNDER THE FEDERAL TORT CLAIMS ACT, OR FOR A PENSION (OTHER THAN TO CARRY OUT A PROVISION OF LAW OR TREATY STIPULATION); (2) THE CONSTRUCTION OF A BRIDGE ACROSS A NAVIGABLE STREAM; OR (3) THE CORRECTION OF MILITARY OR NAVAL RECORD, SHALL BE RECEIVED OR CONSIDERED IN EITHER THE SENATE OR THE HOUSE OF REPRESENTATIVES. NOTHING HAS BEEN FOUND IN THE HEARINGS, REPORTS, OR DEBATES ON THE BILL WHICH BECAME THE LEGISLATIVE REORGANIZATION ACT OF 1946 RELATING TO THE INTENDED SCOPE OF SECTIONS 131 AND 207 OF THAT ACT BUT SUCH SECTIONS, WHEN READ TOGETHER, SEEM TO EVIDENCE AN INTENTION ON THE PART OF THE CONGRESS TO FREE ITSELF OF THE BURDEN OF CONSIDERING PRIVATE BILLS IN CASES INVOLVING ALLEGED ERRORS OR DEFICIENCIES IN INDIVIDUAL MILITARY OR NAVAL RECORDS AND TO CONFER UPON THE SPECIFIED DEPARTMENT HEADS THE AUTHORITY TO "CORRECT" ANY MILITARY OR NAVAL RECORD WHERE DEEMED APPROPRIATE TO EITHER CORRECT AN ERROR OR REMOVE AN INJUSTICE. THAT IS, SUCH SECTIONS WOULD SEEM TO INDICATE THAT, WITH RESPECT TO THE MATTER OF CORRECTING MILITARY OR NAVAL RECORDS THE CONGRESS INTENDED TO VEST IN THE SPECIFIED DEPARTMENT HEADS THE AUTHORITY GENERALLY TO ACCOMPLISH BY DEPARTMENTAL ACTION WHAT THERETOFORE HAD BEEN ACCOMPLISHED BY LEGISLATIVE ACTION OR PRIVATE RELIEF BILLS. HOWEVER, SECTION 207 DOES NOT EXPRESSLY VEST IN ANYONE THE AUTHORITY TO ORDER OR DIRECT ANY PAYMENT BASED ON CORRECTION MADE UNDER ITS PROVISIONS OR TO USE APPROPRIATED FUNDS FOR PAYMENTS BASED ON SUCH CORRECTIONS AND THIS OFFICE IS NOT AWARE OF ANY OTHER STATUTORY PROVISION EXPRESSLY AUTHORIZING SUCH PAYMENTS. MOREOVER, FOR REASONS INDICATED HEREINAFTER, IT SEEMS DOUBTFUL THAT AUTHORITY TO USE APPROPRIATED FUNDS TO MAKE PAYMENTS (NOT OTHERWISE AUTHORIZED) PROPERLY MAY BE IMPLIED FROM THE PROVISIONS OF SECTIONS 131 AND 207, SUPRA.

IT WILL BE NOTED THAT SECTION 131, SUPRA, PLACES A BAN ON LEGISLATIVE CONSIDERATION OF OTHER CLASSES OF PRIVATE BILLS OR RESOLUTIONS--- IN ADDITION TO THOSE RELATING TO THE CORRECTION OF MILITARY OR NAVAL RECORDS- -- AND THAT AMONG SUCH OTHER CLASSES ARE BILLS AUTHORIZING OR DIRECTING ,THE PAYMENT OF MONEY FOR PROPERTY DAMAGES, FOR PERSONAL INJURIES OR DEATH FOR WHICH SUIT MAY BE INSTITUTED UNDER THE FEDERAL TORT CLAIMS ACT.' TITLE IV (SECTIONS 401 424) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 842, IS DENOMINATED " FEDERAL TORT CLAIMS ACT.' SUCH TITLE CONTAINS DETAILED PROVISIONS RESPECTING THE ADJUDICATION AND THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES FOR PROPERTY DAMAGES, PERSONAL INJURIES OR DEATH, AND SECTION 403 THEREOF, 60 STAT. 843, EXPRESSLY CONFERS "UPON THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THE PURPOSE, ACTING ON BEHALF OF THE UNITED STATES," AUTHORITY "TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE ANY CLAIM AGAINST THE UNITED STATES FOR MONEY ONLY, ACCRUING ON AND AFTER JANUARY 1, 1945, ON ACCOUNT OF DAMAGE TO OR LOSS OF PROPERTY OR ON ACCOUNT OF PERSONAL INJURY OR DEATH, WHERE THE TOTAL AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000" AND WHERE CERTAIN OTHER CIRCUMSTANCES AND CONDITIONS EXIST, APPROPRIATIONS TO PAY SUCH CLAIMS BEING EXPRESSLY AUTHORIZED. WHILE BILLS TO CORRECT MILITARY AND NAVAL RECORDS DIFFER VASTLY IN NATURE FROM BILLS TO AUTHORIZE PAYMENT OF TORT CLAIMS, IT SEEMS SIGNIFICANT, NEVERTHELESS, THAT THE STATUTE, AFTER BANNING LEGISLATIVE CONSIDERATION OF THE TWO CLASSES OF BILLS IN SECTION 131, CONTAINS ELABORATE PROVISIONS FOR THE SETTLEMENT OF CLAIMS ARISING AS A RESULT OF TORTIOUS ACTS AND SPECIFICALLY AUTHORIZES APPROPRIATIONS FOR THE PAYMENT OF SUCH CLAIMS, WHEREAS NO PROVISION WHATEVER WAS INCLUDED RESPECTING SETTLEMENT OR PAYMENT OF ANY CLAIM ARISING AS A RESULT OF CORRECTIONS IN MILITARY OR NAVAL RECORDS. IN OTHER WORDS, THE FACT THAT THE CONGRESS SAW FIT TO MAKE EXPRESS AND DETAILED PROVISIONS FOR PAYMENT OF CLAIMS OF THE ONE CLASS (TORT CLAIMS) AND TO MAKE NO PROVISION FOR PAYMENT OF CLAIMS OF THE OTHER CLASS (THOSE BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS) WOULD SEEM TO BE AT LEAST A STRONG INDICATION THAT SECTION 207 WAS NOT INTENDED AS CONFERRING ANY IMPLIED AUTHORITY TO DIRECT OR MAKE PAYMENTS NOT AUTHORIZED BY OTHER PROVISIONS OF LAW.

DURING THE 79TH CONGRESS ONLY A SMALL NUMBER OF PRIVATE ACTS WERE PASSED WHICH CONCEIVABLY MIGHT BE SAID TO RELATE TO THE CORRECTION OF MILITARY OR NAVAL RECORDS. SEE PRIVATE LAW 296, DECEMBER 3, 1945, 59 STAT. 806; PRIVATE LAW 463, APRIL 20, 1946, 60 STAT. 1144; PRIVATE LAW 581, JUNE 11, 1946, 60 STAT. 1195; PRIVATE LAW 646, JUNE 13, 1946, 60 STAT. 1222; PRIVATE LAW 653, JUNE 14, 1946, 60 STAT. 1225; PRIVATE LAW 677, JUNE 21, 1946, 60 STAT. 1235; AND PRIVATE LAW 701, JUNE 25, 1946, 60 STAT. 1244. TWO OF THE CITED ACTS AUTHORIZE THE PAYMENT OF SPECIFIED SUMS "OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED" AND THREE OF SUCH ACTS PROVIDE THAT NO BACK PAY, ALLOWANCES OR OTHER EMOLUMENTS SHALL BE HELD TO HAVE ACCRUED (TO THE PERSON NAMED IN THE ACT) PRIOR TO THE PASSAGE OF THE ACT. SINCE ONLY THE CONGRESS IS AUTHORIZED TO MAKE APPROPRIATIONS "OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED," SINCE SECTION 207 OBVIOUSLY DOES NOT AUTHORIZE OR MAKE ANY APPROPRIATION OF MONEY, AND SINCE IT APPEARS EVIDENT THAT NOTHING IN SECTION 207 REASONABLY COULD BE CONSTRUED AS AUTHORIZING THE DEPARTMENT HEADS SPECIFIED THEREIN TO PLACE CONDITIONS OR LIMITATIONS ON ANY PAYMENTS--- SUCH AS THE LIMITATIONS RELATING TO BACK PAY AND ALLOWANCES AND OTHER SIMILAR LIMITATIONS CUSTOMARILY INCLUDED BY THE CONGRESS IN PRIVATE RELIEF ACTS -- IT SEEMS QUITE CLEAR THAT SECTION 207 DOES NOT VEST IN THE SPECIFIED DEPARTMENT HEADS, EITHER EXPRESSLY OR BY IMPLICATION, AUTHORITY, WITH RESPECT TO PAYMENTS, APPROXIMATELY COEXTENSIVE WITH, OR COMPARABLE TO, THE POWER HERETOFORE EXERCISED BY THE CONGRESS IN PASSING RELIEF ACTS SUCH AS THOSE CITED ABOVE.

MOREOVER, RESPECTING THE ABOVE-MENTIONED CASE OF LAURITZEN, IT PARTICULARLY IS TO BE NOTED THAT ON APRIL 12, 1948, SUBSEQUENT TO YOUR SUBMISSION OF THE QUESTION TO THIS OFFICE, THE SENATE PASSED A BILL (S. 314) ENTITLED "A BILL FOR THE RELIEF OF ROBERT E. LAURITZEN," PROVIDING AS FOLLOWS:

THAT THE SECRETARY OF THE ARMY IS AUTHORIZED AND DIRECTED TO PAY TO ROBERT E. LAURITZEN, OF PACIFIC GROVE, CALIFORNIA, OUT OF ANY FUNDS AVAILABLE FOR THE PAY OF THE ARMY, THE SUM OF $1,017.60, IN FULL SATISFACTION OF HIS CLAIMS AGAINST THE UNITED STATES FOR REIMBURSEMENT OR AMOUNTS PAID AS FINES, AND FOR LOSSES OF ARMY PAY RESULTING FROM HIS REDUCTION TO THE GRADE OF PRIVATE, PURSUANT TO THE SENTENCE OF COURT MARTIAL, SUCH SENTENCE HAVING BEEN SET ASIDE PURSUANT TO THE ORDER OF THE SECRETARY OF THE ARMY DATED NOVEMBER 21, 1947, AS FOLLOWS:

1. HAVING RECEIVED AND APPROVED THE RECOMMENDATIONS OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS IN THE CASE OF ROBERT E. LAURITZEN, ARMY SERIAL NUMBER 39130813, DATED NOVEMBER 17, 1847, AND UNDER THE AUTHORITY VESTED IN ME BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 ( PUBLIC LAW 601, SEVENTY-NINTH CONGRESS), THE ADJUTANT GENERAL IS DIRECTED TO CORRECT THE MILITARY RECORDS OF ROBERT E. LAURITZEN, ARMY SERIAL NUMBER 39130803, TO SHOW---

A. THAT HIS CONVICTION BY SPECIAL COURT MARTIAL ON NOVEMBER 17, 1944, WAS IN ERROR AND BASED ON TESTIMONY SUBSEQUENTLY DISCOVERED TO BE FALSE:

B. THAT THE APPLICANT WAS A MASTER SERGEANT FROM JUNE 15, 1944, UNTIL OCTOBER 20, 1945;

C. THAT THE APPLICANT LOST NO TIME UNDER ARTICLE OF WAR 107.

2. THE ADJUTANT GENERAL IS FURTHER DIRECTED TO ISSUE THE APPLICANT AN HONORABLE DISCHARGE IN ACCORDANCE WITH THE RECORD AS CORRECTED.

IN REPORTING SUCH BILL FAVORABLY TO THE SENATE, THE COMMITTEE ON THE JUDICIARY STATED (QUOTING FROM REPORT NO. 1108, 80TH CONGRESS, 2D SESSION, DATED APRIL 7, 1948):

WHEN IT BECAME APPARENT THAT LAURITZEN'S CONVICTION WAS A MISCARRIAGE OF JUSTICE, VARIOUS ATTEMPTS WERE MADE THROUGH ADMINISTRATIVE PROCEDURES TO RESTORE HIM TO THE STATUTE QUO ANTE. HOWEVER, BECAUSE OF TECHNICALITIES AND ARMY REGULATIONS, IT WAS IMPOSSIBLE FOR THE ARMY TO MAKE HIM WHOLE BY THIS METHOD AND ACCORDINGLY, HIS CASE WAS REFERRED TO THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS (ESTABLISHED PURSUANT TO SEC. 207, PUBLIC LAW 601, 79TH CONG.) ON NOVEMBER 21, 1947. SUBSEQUENTLY AND PURSUANT TO A RECOMMENDATION OF THIS BOARD, THE SECRETARY OF THE ARMY ISSUED AN ORDER TO THE ADJUTANT GENERAL DIRECTING HIM TO CLEAR SERGEANT LAURITZEN'S RECORD OF THE CONVICTION AND RESTORING HIM TO HIS FORMER RANK.

HOWEVER, NEITHER THE BOARD, NOR THE SECRETARY OF THE ARMY HAS AUTHORITY TO REIMBURSE SERGEANT LAURITZEN IN THE AMOUNT OF THE FINE WRONGFULLY ASSESSED AGAINST HIM NOR IS IT POSSIBLE TO PAY HIM THE DIFFERENCE BETWEEN HIS SALARY AS A PRIVATE AND THAT OF A MASTER SERGEANT FOR THE PERIOD IN WHICH HE WAS REDUCED IN RANK. (ITALICS SUPPLIED.)

IT THUS APPEARS THAT THE SENATE COMMITTEE ON THE JUDICIARY WAS OF THE OPINION THAT THE CORRECTION OF RECORDS UNDER SECTION 207 DOES NOT CARRY WITH IT A RIGHT TO PAYMENT AND THAT, NOTWITHSTANDING THE CORRECTION OF THE RECORDS OF LAURITZEN UNDER THE AUTHORITY OF THE SAID SECTION, IT WAS NECESSARY FOR THE CONGRESS TO PASS LEGISLATION AUTHORIZING THE PAYMENT OF HIS CLAIM AND TO MAKE OR DESIGNATE AN APPROPRIATION FOR THAT PURPOSE BEFORE SUCH CLAIM LEGALLY COULD BE PAID. SUCH UNEQUIVOCAL POSITION OF THE SENATE COMMITTEE ON THE JUDICIARY, APPARENTLY AGREED TO BY THE SENATE IN PASSING THE BILL, IS ALL THE MORE SIGNIFICANT IN VIEW OF THE CIRCUMSTANCES, SHOWN BY THE SAID REPORT ON THE BILL, THAT IT WAS TAKEN BY THE COMMITTEE DESPITE A PRIOR RECOMMENDATION BY THE ATTORNEY GENERAL CONCURRING IN A RECOMMENDATION BY THE SECRETARY OF THE ARMY THAT ACTION ON THE BILL BE HELD IN ABEYANCE PENDING A DECISION BY THIS OFFICE ON THE MATTER WHICH MIGHT OBVIATE ANY NECESSITY FOR ENACTMENT OF THE BILL.

IN THE CONSIDERATION OF YOUR QUESTIONS, THERE HAS NOT BEEN OVERLOOKED THE FACT THAT MANY PRIVATE ACTS, HERETOFORE PASSED BY THE CONGRESS, WHICH RELATE TO THE CORRECTION OF MILITARY OR NAVAL RECORDS, HAVE AUTHORIZED OR DIRECTED THE PAYMENT OF SOME MONEY. THAT FACT FORMS SOME BASIS FOR THE VIEW THAT PART OF THE PURPOSE OF SECTION 207 WAS TO PERMIT THE MAKING OF PAYMENT WITHOUT FURTHER ACTION BY THE CONGRESS AND THAT TO HOLD THAT SECTION 207 DOES NOT PROVIDE AUTHORITY FOR PAYMENTS (NOT OTHERWISE AUTHORIZED) WOULD BE TO LEAVE TO THE CONGRESS A SUBSTANTIAL SHARE OF THE BURDEN OF CONSIDERING CASES INVOLVING ALLEGED ERRORS IN MILITARY OR NAVAL RECORDS. HOWEVER, IT IS THE OPINION OF THIS OFFICE THAT THE REASONS FOR HOLDING THAT SECTION 207 DOES NOT IMPLIEDLY AUTHORIZE ANY PAYMENTS FAR OUTWEIGH ANY REASONS WHICH MIGHT BE ADVANCED FOR HOLDING TO THE CONTRARY AND THAT IF THE CONGRESS HAD INTENDED THAT THE DEPARTMENT HEADS SPECIFIED IN SUCH SECTION SHOULD HAVE AUTHORITY, RESPECTING CLAIMS BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS, TO ORDER PAYMENTS OF SUCH CLAIMS (COVERING ANY PAST OR FUTURE PERIOD AND IN ANY AMOUNT WITHOUT LIMITATION), IT WOULD HAVE USED CLEAR AND UNMISTAKABLE TERMS TO EXPRESS SUCH INTENTION.

FOR SUCH REASONS, I FEEL OBLIGED TO RESOLVE WHATEVER DOUBT THERE MAY BE IN THE MATTER IN FAVOR OF THE CONCLUSION THAT THE SAID SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 DOES NOT VEST IN THE HEADS OF THE SPECIFIED DEPARTMENTS OR IN THIS OFFICE ANY AUTHORITY TO ORDER OR DIRECT THE ALLOWANCE OR PAYMENT OF ANY CLAIM FOR MONEY, OR TO USE APPROPRIATED FUNDS TO PAY ANY CLAIM FOR MONEY, BASED ON CORRECTIONS MADE IN THE MILITARY OR NAVAL RECORDS OF AN INDIVIDUAL UNDER THE AUTHORITY OF THAT SECTION.