B-79629, DECEMBER 10, 1948, 28 COMP. GEN. 357

B-79629: Dec 10, 1948

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TO SHOW THAT THE EFFECTIVE DATE OF VOLUNTARY RETIREMENT WAS A DATE LATER THAN THE ONE ON WHICH THE PRESIDENT APPROVED THE OFFICER'S RETIREMENT DOES NOT AUTHORIZE THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES FOR ANY PERIOD AFTER THE DATE ORIGINALLY FIXED FOR THE OFFICER'S TRANSFER TO THE RETIRED LIST. 1948: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16. THE ABOVE-NAMED OFFICER WAS DIRECTED TO REGARD HIMSELF DETACHED FROM ALL DUTIES WHEN DIRECTED BY THE COMMANDANT. IN THE SAID ORDERS HE WAS ADVISED THAT A LETTER FROM THE SECRETARY OF THE NAVY FORMALLY PLACING HIM ON THE RETIRED LIST AS OF JANUARY 1. SUCH ORDER WERE MODIFIED BY BUREAU OF NAVAL PERSONNEL DESPATCH NUMBER 271617Z OF NOVEMBER 1946.

B-79629, DECEMBER 10, 1948, 28 COMP. GEN. 357

PAY - ACTIVE DUTY - ENTITLEMENT OF RETIRED OFFICERS ON BASIS OF CORRECTION OF RECORDS THE CORRECTION OF A NAVY OFFICER'S RECORDS, PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, TO SHOW THAT THE EFFECTIVE DATE OF VOLUNTARY RETIREMENT WAS A DATE LATER THAN THE ONE ON WHICH THE PRESIDENT APPROVED THE OFFICER'S RETIREMENT DOES NOT AUTHORIZE THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES FOR ANY PERIOD AFTER THE DATE ORIGINALLY FIXED FOR THE OFFICER'S TRANSFER TO THE RETIRED LIST. THE ACTION OF THE PRESIDENT IN PROSPECTIVELY CHANGING THE EFFECTIVE DATE OF RETIREMENT OF A NAVY OFFICER MORE THAN A YEAR AFTER THE OFFICER'S RETIREMENT HAD BEEN ACCOMPLISHED, IN ORDER TO EFFECTUATE A CORRECTION OF THE OFFICER'S RECORDS UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, MAY NOT BE REGARDED AS CONFERRING ON THE OFFICER ANY RIGHT TO PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES FOR A PERIOD SUBSEQUENT TO THE DATE ORIGINALLY FIXED FOR THE OFFICER'S RETIREMENT. 18 COMP. DEC. 676, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 10, 1948:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1948, ENCLOSING A LETTER DATED JULY 14, 1948, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS (TOGETHER WITH COPIES OF PERTINENT ORDERS AND LETTERS) AND REQUESTING DECISION AS TO WHETHER LIEUTENANT COMMANDER (T) CHARLES E. BELL, U.S. NAVY, RETIRED, LEGALLY MAY BE PAID THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY FOR THE PERIOD JANUARY 1 TO 31, 1947, ON THE BASIS OF THE CHANGE IN THE EFFECTIVE DATE OF HIS RETIREMENT FROM JANUARY 1, 1947, TO FEBRUARY 1, 1947, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSURES.

IT APPEARS THAT BY ORDERS DATED SEPTEMBER 25, 1946, FROM THE CHIEF OF NAVAL PERSONNEL, THE ABOVE-NAMED OFFICER WAS DIRECTED TO REGARD HIMSELF DETACHED FROM ALL DUTIES WHEN DIRECTED BY THE COMMANDANT, THIRD NAVAL DISTRICT, ON NOVEMBER 1, 1946, TO AWAIT ORDERS PENDING RETIREMENT, AND TO REGARD HIMSELF RELIEVED OF ALL ACTIVE DUTY IN THE U.S. NAVY ON JANUARY 1, 1947. AND IN THE SAID ORDERS HE WAS ADVISED THAT A LETTER FROM THE SECRETARY OF THE NAVY FORMALLY PLACING HIM ON THE RETIRED LIST AS OF JANUARY 1, 1947, WOULD BE FORWARDED TO HIM SHORTLY THEREAFTER. SUCH ORDER WERE MODIFIED BY BUREAU OF NAVAL PERSONNEL DESPATCH NUMBER 271617Z OF NOVEMBER 1946, SO AS TO CHANGE THE DETACHMENT DATE FROM NOVEMBER 1, 1946, TO DECEMBER 2, 1946, AND THE DATE OF RELIEF FROM ACTIVE DUTY FROM JANUARY 1, 1947, TO FEBRUARY 1, 1947. BY LETTER DATED JANUARY 7, 1947, FROM THE ACTING SECRETARY OF THE NAVY, THE OFFICER WAS NOTIFIED THAT HIS REQUEST TO BE TRANSFERRED TO THE RETIRED LIST, AFTER THE COMPLETION OF TWENTY YEARS' SERVICE, HAD BEEN APPROVED BY THE PRESIDENT EFFECTIVE JANUARY 1, 1947, AND THAT ON JANUARY 1, 1947, HE HAD BEEN TRANSFERRED TO HE RETIRED LIST WITH THE RANK OF LIEUTENANT COMMANDER AND WITH THE RETIRED PAY OF THAT RANK, PURSUANT TO THE PROVISIONS OF SECTIONS 410B AND 410C OF TITLE 34, U.S.C. THEREAFTER, ON JANUARY 13, 1947, THE OFFICER REQUESTED THAT THE EFFECTIVE DATE OF HIS RETIREMENT BE CHANGED FROM JANUARY 1, 1947, TO FEBRUARY 1, 1947, AND IN RESPONSE TO SUCH REQUEST HE WAS ADVISED BY LETTER DATED FEBRUARY 25, 1947, FROM THE CHIEF OF NAVAL PERSONNEL, THAT:

2. THROUGH AN ADMINISTRATIVE ERROR YOUR REQUEST FOR RETIREMENT WAS APPROVED BY THE PRESIDENT AS INDICATED IN REFERENCE (B) ( SECRETARY OF THE NAVY LETTER OF 7 JANUARY 1947). HAVING NOW BEEN APPROVED AND DULY EXECUTED THERE IS NO PROVISION OF LAW BY WHICH IT CAN SUBSEQUENTLY BE CHANGED. RECOGNIZING THAT YOU HAVE INADVERTENTLY BEEN DEPRIVED OF 30 DAYS OF YOUR TERMINAL LEAVE, HOWEVER, YOUR REQUEST HAS BEEN FORWARDED TO THE SECRETARY OF THE NAVY FOR CONSIDERATION BY THE BOARD CREATED PURSUANT TO THE PROVISIONS OF REFERENCE (C) ( LEGISLATIVE REORGANIZATION ACT OF 1946), WHICH BOARD HAS POWER TO CHANGE A NAVAL RECORD WHERE IN ITS JUDGMENT SUCH ACTION APPEARS NECESSARY "TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE.'

IT APPEARS THAT, IN ACCORDANCE WITHN THE ABOVE-QUOTED LETTER, THE OFFICER'S REQUEST WAS REFERRED TO THE SECRETARY OF THE NAVY FOR CONSIDERATION BY THE BOARD CREATED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, WHICH SECTION AUTHORIZES THE SECRETARY OF THE NAVY TO CHANGE A NAVAL RECORD WHEN IN HIS JUDGMENT SUCH ACTION APPEARS NECESSARY "TO CORRECT AN ERROR OR TO REMOVE AN INJUSTICE.' IT FURTHER APPEARS THAT SUCH BOARD CONSIDERED THE CASE AND CONCLUDED THAT, THROUGH ADMINISTRATIVE ERROR WITH RESPECT TO THE EFFECTIVE DATE OF HIS RETIREMENT, THE OFFICER WAS DEPRIVED OF THE BENEFIT OF THE TERMINAL LEAVE POLICY APPLIED GENERALLY THROUGHOUT THE NAVY AND THAT HE THEREBY SUFFERED AN INJUSTICE. THE BOARD RECOMMENDED TO THE SECRETARY OF THE NAVY THAT A LETTER AMENDING THE EFFECTIVE DATE OF THE OFFICER'S VOLUNTARY RETIREMENT FROM JANUARY 1, 1947, TO FEBRUARY 1, 1947, BE FORWARDED TO THE PRESIDENT FOR SIGNATURE, AND THAT, UPON SUCH SIGNATURE, THE OFFICER'S RECORDS BE AMENDED TO SHOW THAT THE EFFECTIVE DATE OF HIS RETIREMENT WAS FEBRUARY 1, 1947. SUCH RECOMMENDATION WAS APPROVED BY THE SECRETARY OF THE NAVY AND BY LETTER DATED FEBRUARY 13, 1948, THE SECRETARY ADVISED THE OFFICER, IN PART, AS FOLLOWS:

THE PRESIDENT OF THE UNITED STATES ON 22 JANUARY 1948 APPROVED THE RECOMMENDATION OF THE SECRETARY OF THE NAVY THAT THE RECORDS OF THE DEPARTMENT BE AMENDED TO SHOW THE EFFECTIVE DATE OF YOUR RETIREMENT TO BE 1 FEBRUARY 1947.

SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, IS 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.

WITH RESPECT TO THE PAYMENT OF PAY AND ALLOWANCES BASED UPON A CORRECTION OF RECORD MADE PURSUANT TO THE ABOVE-QUOTED PROVISION, IN A DECISION OF MAY 4, 1948, 27 COMP. GEN. 665, TO THE SECRETARY OF THE ARMY, IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT:

THE AUTHORITY CONFERRED UP 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 ANY CLAIM FOR MONEY, BASED ON CORRECTIONS MADE IN THE MILITARY OR NAVAL RECORDS OF AN INDIVIDUAL UNDER AUTHORITY OF SAID SECTION.

APPLYING THE PRINCIPLE OF THAT DECISION, IT MUST BE HELD THAT THE CORRECTION OF COMMANDER BELL'S RECORDS UNDER THE AUTHORITY OF SECTION 207, SUPRA, DID NOT CONFER UPON SUCH OFFICER ANY RIGHT TO PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES AFTER DECEMBER 31, 1946.

THERE REMAINS FOR CONSIDERATION THE QUESTION OF THE EFFECT, IF ANY, ON THE OFFICER'S PAY RIGHTS OF THE ACTION OF THE PRESIDENT RESPECTING THE EFFECTIVE DATE OF THE RETIREMENT IN QUESTION. IT HAS BEEN HELD THAT THE POWER OF THE PRESIDENT WITH RESPECT TO THE RETIREMENT OF OFFICERS IS NOT A CONTINUING POWER, BUT IS PERFORMED TO THE EXTENT OF ITS EXISTENCE BY THE ONE ACT OF THE PRESIDENT AND HE CANNOT THEREAFTER REVIEW HIS ACTION OR CORRECT AN ERROR OF JUDGMENT. MCBLAIR V. UNITED STATES, 19 C.1CLS. 528, 538. CF. MIMMACK V. UNITED STATES, 10 C.1CLS. 584, 97 U.S. 426, 437; CORSON V. UNITED STATES, 17 C.1CLS. 344, 114 U.S. 619; BLAKE V. UNITED STATES, 14 C.1CLS. 462, 103 U.S. 227, 237, MILLER V. UNITED STATES, 19 C.1CLS. 338; UNITED STATES V. BURCHARD, 425 U.S. 176, 179-180; 19 OP. ATTY. GEN. 202; 30 ID. 457.

IN THE DECISION OF THE COMPTROLLER OF THE TREASURY DATED MARCH 6, 1912, 18 COMP. DEC. 676, CITED IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, THERE WAS INVOLVED A CASE IN WHICH THE PRESIDENT, THROUGH INADVERTENCE AND MISTAKE OF FACT RELATING TO A MATTER OF RECORD THEN BEFORE HIM, AND NOT INTENDING TO DO SO, HAD APPROVED THE FINDINGS AND RECOMMENDATIONS OF A NAVAL EXAMINING BOARD DISCHARGING AN OFFICER WITH ONE YEAR'S PAY, AND SOON THEREAFTER, UPON DISCOVERY OF HIS MISTAKE, CANCELLED HIS APPROVAL OF THE RECOMMENDATION OF A NAVAL EXAMINING BOARD DISCHARGING AN OFFICER WITH ONE YEAR'S PAY, AND SOON THEREAFTER, UPON DISCOVERY OF HIS MISTAKE, CANCELLED HIS APPROVAL OF THE RECOMMENDATION OF THE BOARD AND THE ORDER DIRECTING THE DISCHARGE OF THE OFFICER AND REMITTED THE CASE FOR THE CONSIDERATION OF ANOTHER BOARD. IN THAT CASE IT WAS HELD THAT, SINCE THE PRESIDENT'S ACTION IN SIGNING THE RECOMMENDATION WAS INADVERTENT AND RESULTED FROM A MISTAKE OF FACT, CANCELLATION OF SUCH APPROVAL WAS AUTHORIZED. HOWEVER, IN THE CASE HERE INVOLVED, THERE IS NOTHING TO INDICATE THAT THE PRESIDENT ACTED INADVERTENTLY OR UNDER ANY MISTAKE OF FACT IN APPROVING COMMANDER BELL'S RETIREMENT EFFECTIVE JANUARY 1, 1947, AND, ACCORDINGLY, THE PRINCIPLE OF THE SAID DECISION OF MARCH 6, 1912, APPEARS TO HAVE NO APPLICATION IN THIS CASE.

THE RETIREMENT OF AN OFFICER HAS BEEN REGARDED AS EFFECTING A COMPLETE SEVERANCE FROM ACTIVE SERVICE AND AN OFFICER'S RIGHTS, PRIVILEGES AND BENEFITS AS AN OFFICER ON THE ACTIVE LIST TERMINATE ON THE EFFECTIVE DATE OF HIS RETIREMENT. AFTER THE EFFECTIVE DATE OF HIS RETIREMENT AN OFFICER IS NOT ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES IN THE ABSENCE OF ORDERS DEFINITELY ASSIGNING HIM TO ACTIVE DUTY. 24 COMP. GEN. 291; HOLLAND V. UNITED STATES, 83 C.1CLS. 376, 380. THERE HAS NOT BEEN BROUGHT TO ATTENTION ANY AUTHORITATIVE PRECEDENT WHICH WOULD BE A PROPER BASIS FOR AUTHORIZING THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES AFTER DECEMBER 31, 1946, IN THE CIRCUMSTANCES HERE INVOLVED AND THIS OFFICE IS NOT AWARE OF ANY. AND IN VIEW OF THE ABOVE-CITED AUTHORITIES, THIS OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE CHANGE BY THE PRESIDENT IN THE EFFECTIVE DATE OF COMMANDER BELL'S RETIREMENT, MORE THAN A YEAR AFTER SUCH RETIREMENT HAD BEEN ACCOMPLISHED, HAD THE EFFECT OF CONFERRING ON THE OFFICER ANY RIGHT TO THE PAYMENT OF ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD JANUARY 1 TO 31, 1947. IT FOLLOWS THAT YOUR QUESTION MUST BE ANSWERED IN THE NEGATIVE.