B-117367, JULY 7, 1954, 34 COMP. GEN. 7

B-117367, JULY 7, 1954, 34 COMP. GEN. 7

RECORDS - MILITARY, NAVAL, ETC. - CORRECTION - PAY RIGHTS THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE AND TREASURY ARE NOT VESTED WITH ANY DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATURE REORGANIZATION ACT OF 1946, AS AMENDED, AND THEREFORE THE AMOUNTS AUTHORIZED TO BE PAID UNDER SECTION 207 (B) OF THE ACT DEPEND SOLELY UPON A PROPER APPLICATION OF THE STATUTES TO THE FACTS AS SHOWN BY THE CORRECTED RECORD IN EACH PARTICULAR CASE.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, JULY 7, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1954, REQUESTING RECONSIDERATION OF THE RULE FOLLOWED IN SEVERAL DECISIONS OF THIS OFFICE, INCLUDING B-117367, NOVEMBER 4, 1953 ( KIMBROUGH CASE), TO THE EFFECT THAT PAYMENTS BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS EFFECTED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, ARE REQUIRED TO BE MADE IN THE AMOUNTS ASCERTAINED OR DETERMINED TO BE DUE BY APPLYING PERTINENT LAWS AND REGULATIONS TO ALL MATERIAL FACTS SHOWN BY THE RECORDS AS SO CORRECTED AND THAT THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE AND TREASURY DO NOT HAVE DISCRETIONARY AUTHORITY TO LIMIT OR REDUCE THE AMOUNTS SO PAYABLE UNDER THE LAW.

IN YOUR LETTER IT IS STATED THAT:

SINCE THE DECISION OF YOUR OFFICE WITH REGARD TO THE KIMBROUGH AND SIMILAR CASES WOULD APPEAR TO NULLIFY THE AUTHORITY OF THE SECRETARIES OF THE MILITARY DEPARTMENTS AND THE SECRETARY OF THE TREASURY TO GRANT FULL AND ADEQUATE RELIEF UNDER SECTION 207 WITHOUT GRANTING UNWARRANTED BENEFITS, AND THUS THWART THEIR USE OF JUDGMENT IN DETERMINING THE RELIEF TO BE GRANTED ON THE MERITS OF EACH INDIVIDUAL CASE, IT IS RESPECTFULLY REQUESTED THAT THE RULE LAID DOWN BY YOUR OFFICE IN SUCH CASES BE RECONSIDERED AND THAT THE DEPARTMENT OF THE ARMY BE FURNISHED ADVICE FOR USE IN DETERMINING FUTURE ACTION IN SIMILAR CASES. YOUR EARLY CONSIDERATION OF THIS MATTER WOULD BE GREATLY APPRECIATED, SINCE IT IS ESTIMATED THAT FULL RETROACTIVE PAYMENTS IN ALL DISABILITY RETIREMENT CASES MAY AMOUNT TO $20,000,000 OR MORE.

THE SAID SECTION 207, AS AMENDED, 65 STAT. 655, IS, IN PERTINENT PART, AS FOLLOWS:

SEC. 207. (A) THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE 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 REMOVE AN INJUSTICE, AND CORRECTIONS SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT EXCEPT WHEN PROCURED BY MEANS OF FRAUD: PROVIDED, THAT PROCEDURES SET UP BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE IN ACCORDANCE WITH THIS SUBSECTION SHALL BE APPROVED BY THE SECRETARY OF DEFENSE * * *.

(B) THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION * * *

(C) THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.

AS ORIGINALLY ENACTED, SECTION 207 PROVIDED NO AUTHORITY FOR MAKING PAYMENTS ON THE BASIS OF RECORD CORRECTIONS MADE THEREUNDER AND THIS OFFICE SO HELD IN DECISION OF MAY 4, 1948, 27 COMP. GEN. 665, TO THE SECRETARY OF THE ARMY, AND IN DECISION OF MAY 20, 1948, 27 COMP. GEN. 709, TO THE SECRETARY OF THE NAVY. THE LEGISLATIVE HISTORY OF THE SAID 1951 AMENDING ACT INDICATES THAT THE PRIMARY PURPOSE OF SUCH ACT WAS TO PROVIDE THE PAYMENT AUTHORITY WHICH SUCH DECISIONS HELD TO BE LACKING.

IT WILL BE NOTED THAT SUBSECTION (A) OF THE ABOVE-QUOTED SECTION 207, AS AMENDED, EXPRESSLY GRANTS AUTHORITY TO THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE AND TREASURY, ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS, TO CORRECT MILITARY OR NAVAL RECORDS AND PROVIDES THAT "CORRECTIONS" SO MADE SHALL BE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT. IT WILL BE NOTED, ALSO, THAT SUBSECTION (B) OF THE SAID SECTION DOES NOT EXPRESSLY GRANT AUTHORITY TO, OR MENTION, ANY SECRETARY OR ANY BOARD BUT USES QUITE DIFFERENT TERMS TO AUTHORIZE " THE DEPARTMENT CONCERNED" TO PAY CLAIMS FOR AMOUNTS "WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION.' WHEN SUCH DIFFERENCE IN LANGUAGE IS CONSIDERED IN CONJUNCTION WITH THE HISTORY OF THE AMENDMENT OF SECTION 207 AND THE STATE OF AFFAIRS WHICH CONGRESS SOUGHT TO CHANGE BY SUCH AMENDMENT, IT SEEMS REASONABLY CLEAR THAT, IN ENACTING THE SAID SUBSECTION (B), ALL THE CONGRESS INTENDED TO ACCOMPLISH WAS TO PROVIDE AUTHORITY, WHERE NONE HAD EXISTED, TO PAY CLAIMS FOR AMOUNTS DUE UNDER THE APPLICABLE LAW ON THE BASIS OF THE FACTS AS THEY APPEAR FROM THE CORRECTED RECORD. IF CONGRESS HAD INTENDED THAT THE SECRETARIES, ACTING THROUGH CORRECTION BOARDS OR INDEPENDENTLY OF SUCH BOARDS, SHOULD HAVE DISCRETIONARY AUTHORITY IN EACH CASE INVOLVING A CORRECTION OF RECORDS TO GRANT OR WITHHOLD, IN WHOLE OR IN PART, THE PAYMENTS OTHERWISE AUTHORIZED BY LAW ON THE BASIS OF THE RECORD AS CORRECTED, IT DOUBTLESS WOULD HAVE USED PLAIN TERMS IN THE SAID SUBSECTION (B) TO EXPRESS THAT INTENT. SUCH INTENT MAY NOT BE INFERRED FROM THE LANGUAGE ACTUALLY USED IN SUBSECTION (B), PARTICULARLY SINCE SUCH SUBSECTION IN THE BILL H.R. 1181, WHICH BECAME THE SAID ACT OF OCTOBER 25, 1951, WAS AMENDED BY COMMITTEE AMENDMENT ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES TO SUBSTITUTE THE WORDS " THE DEPARTMENT CONCERNED IS AUTHORIZED TO (PAY)" FOR THE WORDS " THE SECRETARY CONCERNED, OR HIS DESIGNEE FOR THE PURPOSE, IS AUTHORIZED TO SETTLE AND (PAY).' SEE CONGRESSIONAL RECORD FOR JULY 2, 1951, PAGE 7765. AT THE SAME TIME AND IN THE SAME MANNER, SUBSECTION (C) IN H. R. 1181 WAS AMENDED BY STRIKING THEREFROM A PHRASE WHICH WOULD HAVE MADE ANY SETTLEMENT UNDER SUBSECTION (B) FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT IN THE ABSENCE OF FRAUD. CONGRESS, BY THUS CHANGING THE LANGUAGE OF SUBSECTIONS (B) AND (C) SO AS TO NEGATIVE "SETTLEMENT" OF THE CLAIMS INVOLVED BY " THE SECRETARY CONCERNED, OR HIS DESIGNEE FOR THE PURPOSE" AND BY THUS STRIKING THE PROVISION I SUBSECTION (C) FOR FINALITY AND CONCLUSIVENESS OF ANY "SETTLEMENT" MADE PURSUANT TO SUBSECTION (B), LEFT LITTLE OR NOTHING IN THE LANGUAGE OF SUBSECTION (B) UPON WHICH THERE REASONABLY MIGHT BE BASED A HOLDING THAT THE SECRETARY CONCERNED OR THE DEPARTMENT CONCERNED HAS PLENARY POWER TO GRANT OR WITHHOLD MONETARY BENEFITS WHICH, IN THE ABSENCE OF SUCH POWER, WOULD ACCRUE TO A PERSON AS A MATTER OF LAW ON THE BASIS OF THE MATTERS OF FACT OR PURPORTED FACT SHOWN IN HIS CORRECTED RECORD.

IT IS ARGUED THAT SINCE THE AFORESAID SUBSECTION (B) REFERS TO AMOUNTS WHICH ARE "FOUND" TO BE DUE, IT CONTAINS IMPLIED AUTHORITY FOR THE SECRETARIES, ACTING THROUGH THE CORRECTION BOARDS, TO MAKE CONCLUSIVE FINDINGS OF AMOUNTS DUE PERSONS WHOSE RECORDS HAVE BEEN CORRECTED UNDER SUBSECTION (A), EVEN THOUGH SUCH FINDINGS MAY BE INCONSISTENT WITH OR DIRECTLY CONTRARY TO THE "FACTS" AS THEY APPEAR FROM THE CORRECTED RECORD. SUCH ARGUMENT SEEMS SINGULARLY UNPERSUASIVE WHEN CONSIDERED IN CONJUNCTION WITH THE DELIBERATE CHANGES, DISCUSSED ABOVE, WHICH CONGRESS MADE IN THE LANGUAGE OF SUBSECTIONS (B) AND (C). MOREOVER, THE WORD "FOUND" MAY BE USED IN SEVERAL DIFFERENT SENSES AND THERE IS NOTHING IN ITS CONTEXT IN SUBSECTION (B), OR IN THE LEGISLATIVE HISTORY OF SUCH SUBSECTION, WHICH FURNISHES ANY SOUND BASIS FOR CONCLUDING THAT THE WORD WAS USED IN THE SAID SUBSECTION TO MEAN ANYTHING OTHER THAN "ASCERTAINED" OR "DISCOVERED," UNDER EXISTING LAWS AND REGULATIONS, BY ADMINISTRATIVE OR DISBURSING PERSONNEL ACTING IN THEIR USUAL MANNER UNDER ESTABLISHED PROCEDURES.

THE SUGGESTION IS MADE THAT " IF THE PAYMENTS UNDER SUBSECTION (B) ARE PURELY AUTOMATIC, IT WOULD APPEAR THAT SUBSECTION (C) WOULD BE UNNECESSARY.' RESPECTING SUCH SUGGESTION, IT IS THE VIEW OF THIS OFFICE THAT SUBSECTION (C) CONTEMPLATES (1) THAT A CLAIMANT MAY ACCEPT OR REJECT THE PAYMENT TENDERED BY THE " DEPARTMENT CONCERNED" UNDER SUBSECTION (B); (2) THAT IF HE ACCEPTS THE PAYMENT SO TENDERED HIS ACTION SHALL CONSTITUTE A RELEASE OF ANY CLAIM HE MAY HAVE AGAINST THE UNITED STATES BASED ON THE FACTS INDICATED BY THE CORRECTIVE ACTION INVOLVED; AND (3) THAT IF HE REJECTS THE PAYMENT SO TENDERED HE THEN MAY LOOK TO THE COURT OF CLAIMS OR TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT OF HIS CLAIM AGAINST THE UNITED STATES. IF THAT WERE NOT SO, THE CLAIMANT WOULD HAVE NO REMEDY AND NO PRACTICAL ALTERNATIVE OTHER THEN TO ACCEPT ANY PROFFERED SETTLEMENT, NOTWITHSTANDING THAT THE SUBSECTION CLEARLY CONTEMPLATES THAT HE MAY REJECT THE OFFER AND, PRESUMABLY, SEEK SOME OTHER REMEDY. IF CLAIMANTS WERE TO HAVE NO RECOURSE OTHER THAN TO ACCEPT PROFFERED SETTLEMENTS, THEN THE PROVISION THAT ACCEPTANCE SHALL CONSTITUTE A COMPLETE RELEASE WOULD INDEED BE UNNECESSARY AND SURPLUSAGE. UNDER BASIC CANONS OF STATUTORY INTERPRETATION, THAT RESULT IS NOT TO BE ADMITTED, IF REASONABLE EFFECT CAN BE GIVEN THE LANGUAGE. UNDER GENERAL LAW A CLAIMANT WHO REJECTS SUCH PROFFERED ADMINISTRATIVE SETTLEMENT IS ENTITLED TO HAVE HIS CLAIM CONSIDERED BY THIS OFFICE. SEE SECTION 236 OF THE REVISED STATUTES, AS AMENDED, 31 U.S.C. 71, WHICH AUTHORIZES THE GENERAL ACCOUNTING OFFICE TO SETTLE AND ADJUST " ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT.' IT IS THE VIEW OF THIS OFFICE, ALSO, THAT IF IT IS THUS PRESENTED WITH A CLAIM BASED ON A CORRECTION OF RECORD MADE UNDER SUBSECTION (A) OF SECTION 207, AS AMENDED, IT IS REQUIRED BY LAW TO SETTLE THE CLAIM BY APPLYING EXISTING LAWS AND REGULATIONS TO ALL THE MATERIAL FACTS SHOWN BY THE PERTINENT MILITARY RECORD AS SO CORRECTED. ANY OTHER COURSE OF ACTION WOULD TEND TO CREATE ERRORS AND INJUSTICES OF THE TYPE WHICH CONGRESS, IN ENACTING THE SAID SECTION, WAS SEEKING TO CORRECT OR REMOVE.

IN YOUR LETTER IT IS STATED THAT " IN MANY CASES, IT HAS BEEN THE JUDGMENT OF THE SECRETARY OF THE ARMY THAT FULL AND ADEQUATE JUSTICE IS AFFORDED BY GRANTING PROSPECTIVE, OR LESS THAN COMPLETELY RETROACTIVE BENEFITS" AND THAT " IN OTHER CASES THE SECRETARY HAS DETERMINED THAT FULL AND ADEQUATE JUSTICE WILL BE SERVED ONLY BY LIMITING THE PURPOSES FOR WHICH THE CORRECTION OF A MILITARY RECORD IS EFFECTIVE.' RESPECTING THOSE STATEMENTS, IT IS DESIRED TO EMPHASIZE THE PROPOSITION THAT, AS VIEWED BY THIS OFFICE, THE STATUTE MAY NOT REASONABLY BE CONSTRUED TO VEST SUCH SWEEPING AND UNUSUAL POWERS IN AN OFFICER WHOSE TITLE IS NOT EVEN MENTIONED IN THE SUBSECTION WHICH IS SAID TO GRANT HIM SUCH AUTHORITY BY IMPLICATION. IT SEEMS APPROPRIATE TO MENTION, IN SUCH CONNECTION, A DISSERTATION APPEARING IN THE GEORGETOWN LAW JOURNAL ( JANUARY 1954), VOLUME 42, NUMBER 2, WRITTEN BY A " FORMER NEW YORK CITY MAGISTRATE" WHEREIN IT IS CONCLUDED THAT THE ABOVE-QUOTED SECTION 207, AS AMENDED,"IS INVALID (UNCONSTITUTIONAL) AND WILL BE DECLARED SO IF IT EVER REACHES A COURT.' THE BASIS FOR SUCH CONCLUSION APPEARS TO BE THAT THE STATUTE "PURPORTS TO GRANT TO THE BOARD A DISCRETION TO ACT WHICH BECAUSE OF LACK OF DEFINITION IS PRACTICALLY UNLIMITED AND SO AMOUNTS TO A DELEGATION OF LEGISLATIVE POWER.' WHILE THIS OFFICE DOES NOT PROPOSE TO PASS UPON THE CONSTITUTIONALITY OF THE STATUTE, IT NEVERTHELESS IS PROPER FOR IT TO GIVE SERIOUS CONSIDERATION TO THE MATTER OF THE STATUTE'S CONSTITUTIONALITY FOR THE PURPOSE OF AVOIDING, IF POSSIBLE, AN INTERPRETATION OF SUCH STATUTE WHICH WOULD MAKE IT HIGHLY VULNERABLE TO ATTACK ON CONSTITUTIONAL GROUNDS. IF THE STATUTE WERE GIVEN THE INTERPRETATION WHICH THE DEPARTMENT OF THE ARMY WOULD GIVE, IT SEEMS OBVIOUS THAT THERE WOULD BE MUCH GREATER DOUBT AS TO ITS CONSTITUTIONALITY THAN THERE COULD BE UNDER THE INTERPRETATION APPLIED BY THIS OFFICE.

THE STATEMENTS MADE BY MEMBERS OF THE HOUSE COMMITTEE ON ARMED SERVICES, AND BY OTHERS, TO WHICH SPECIFIC REFERENCE IS MADE IN YOUR LETTER, WERE DULY CONSIDERED BY THIS OFFICE IN ESTABLISHING THE RULE APPLIED IN THE KIMBROUGH CASE AND IT MAY BE STATED THAT THERE WAS NOT OVERLOOKED THE VERY CONSEQUENTIAL INCREASE IN GOVERNMENT EXPENDITURES WHICH MAY RESULT FROM SUCH RULE. HOWEVER THAT MAY BE, THE STATUTE IS REQUIRED TO BE CONSTRUED IN ACCORDANCE WITH ITS SPECIFIC TERMS AND IN A MANNER CONSISTENT WITH THE INTENT OF THE CONGRESS. IT IS BELIEVED THAT INSOFAR AS THE PRESENT MATTER IS CONCERNED, SUCH INTENT IS PLAIN FROM WHAT HAS BEEN SAID ABOVE BUT, IN ADDITION, YOUR ATTENTION IS INVITED TO THE STATEMENTS APPEARING IN THE LEGISLATIVE HISTORY OF THE 1951 AMENDMENT WHICH ARE SET FORTH BELOW. HOUSE OF REPRESENTATIVES REPORT NO. 449, DATED MAY 15, 1951, IT IS STATED BY THE COMMITTEE ON ARMED SERVICES THAT THE COMMITTEE "DID NOT FEEL THAT THE CONGRESS INTENDED TO GRANT THE AUTHORITY (IN SECTION 207, 60 STAT. 837, OF THE 1946 ACT) TO CORRECT THE RECORDS AND DENY THE AUTHORITY TO MAKE MONETARY PAYMENTS WHICH ACCRUED AS A RESULT OF THE CORRECTION.' THE SAME REPORT THE COMMITTEE FURTHER STATED THAT WHILE IT WAS NOT "OBLIVIOUS OF ITS RESPONSIBILITIES IN CONNECTION WITH FEDERAL EXPENDITURES COMING WITHIN ITS COGNIZANCE, IT TAKES THE POSITION THAT IF MILITARY AND NAVAL PERSONNEL HAVE BEEN UNJUSTLY AND IMPROPERLY AGGRIEVED AS A RESULT OF AN ERROR BEYOND THEIR CONTROL, THE PAYMENT OF ANY SUMS OF MONEY, REGARDLESS OF THE AMOUNT, IS MERELY COLLATERAL TO THE CORRECTION OF THE INJUSTICE.' AND IN THE CONGRESSIONAL RECORD--- HOUSE, JULY 2, 1951, PAGE 7766, IT IS STATED THAT " IN MANY CASES, THE CORRECTION OF THE RECORD ENTITLED THE APPLICANT TO RECEIVE MONETARY BENEFITS WHICH HAD BEEN IMPROPERLY DENIED THEM; " THAT THE PROPOSED LEGISLATION WOULD AMEND SECTION 207 SO AS TO AUTHORIZE "PAYMENT OF ANY MONEYS WHICH MAY BE FOUND DUE AS A RESULT OF A CORRECTION OF RECORDS; " AND, THAT THE COST THEREOF "WILL ONLY INVOLVE THOSE SUMS WHICH WOULD HAVE BEEN PAID IF PROPER PAYMENT HAD BEEN MADE INITIALLY, PLUS ANY ADDITIONAL ADMINISTRATIVE EXPENSES INVOLVED IN EXECUTING THE AUTHORITY WHICH WOULD BE GRANTED UNDER THIS PROPOSAL.' FINALLY, IN THE HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, ON SEPTEMBER 17, 1951, IT WAS STATED ON PAGE 1 THAT " THIS BILL WOULD AUTHORIZE THE PAYMENT THAT WOULD HAVE BEEN DUE IF THE ERROR OR INJUSTICE HAD NOT EXISTED ORIGINALLY" AND ON PAGE 10 THAT " IT IS OUR FIRM BELIEF THAT WHEN A SECRETARY APPROVES THE FINDINGS OF A BOARD THAT THERE WAS A MISTAKE MADE THEN SUCH MONETARY BENEFITS AS WOULD HAVE BEEN OTHERWISE PAYABLE, EXCEPT FOR THE ERROR, SHOULD BE AWARDED.'

IN VIEW OF THE REASONABLY CLEAR AND UNAMBIGUOUS LANGUAGE OF SECTION 207, AS AMENDED, AND THE OBVIOUS PURPOSE OF THE CONGRESS AS EVIDENCED BY SUCH LANGUAGE AND THE HISTORY OF THE 1951 AMENDING ACT, THE CONCLUSION IS REQUIRED THAT THE SECRETARIES OF THE DEPARTMENTS CONCERNED ARE NOT VESTED, IMPLIEDLY OR OTHERWISE, WITH ANY DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS AND THAT THE AMOUNTS LAWFULLY AUTHORIZED TO BE PAID UNDER SECTION 207 (B), PURSUANT TO THE CORRECTION OF MILITARY OR NAVAL RECORDS ARE NOT DEPENDENT UPON EITHER THE JUDGMENT OR THE GENEROSITY OF SUCH SECRETARIES IN ANY PARTICULAR SITUATION BUT DEPEND SOLELY ON A PROPER APPLICATION OF THE STATUTES TO THE FACTS OR PURPORTED FACTS AS SHOWN BY THE CORRECTED RECORD IN THE PARTICULAR CASE.

IN THE DECISION OF NOVEMBER 4, 1953, IN THE KIMBROUGH CASE, ABOVE REFERRED TO, IT WAS HELD BY THIS OFFICE THAT BY REASON OF THE CORRECTION OF HIS MILITARY RECORDS PURSUANT TO THE PROVISIONS OF SECTION 207 (A), TO SHOW THAT ON JANUARY 6, 1946, KIMBROUGH WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY, INCURRED IN LINE OF DUTY, AS THE RESULT OF AN INCIDENT OF THE SERVICE AND THAT ON JANUARY 6, 1946, HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY AND CERTIFIED TO BE ELIGIBLE FOR RETIREMENT PAY BENEFITS UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 456, THE SAID OFFICER'S RIGHT TO RETIREMENT PAY WAS REQUIRED TO BE DETERMINED AS IF HE ACTUALLY HAD BEEN RELEASED FROM ACTIVE DUTY ON JANUARY 6, 1946, BY REASON OF PERMANENT PHYSICAL DISABILITY, INCURRED IN LINE OF DUTY, AND IMMEDIATELY CERTIFIED TO BE ELIGIBLE FOR THE RETIREMENT PAY BENEFITS PRESCRIBED IN THE SAID ACT OF APRIL 3, 1939. HENCE, THE DIRECTION BY THE SECRETARY OF THE ARMY THAT THE DEPARTMENT OF THE ARMY PAY TO CAPTAIN KIMBROUGH RETROACTIVE RETIREMENT PAY EFFECTIVE ONLY FROM AND AFTER MAY 1, 1950 (PRESUMABLY BASED ON THE JUDGMENT OF THE SECRETARY OF THE ARMY THAT PAYMENT OF RETIREMENT PAY FROM THAT DATE WOULD, IN THE CIRCUMSTANCES OF THE CASE, AFFORD AN ADEQUATE MEASURE OF RELIEF) DID NOT AFFECT THE AMOUNT OF DISABILITY RETIREMENT PAY WHICH WOULD OTHERWISE HAVE BECOME DUE TO CAPTAIN KIMBROUGH, UNDER THE APPLICABLE PROVISIONS OF LAW, HAD NO ERROR OR INJUSTICE INITIALLY OCCURRED IN HIS CASE. ACCORDINGLY, CAPTAIN KIMBROUGH WAS DEEMED TO BE LEGALLY ENTITLED TO RETIREMENT PAY BEGINNING JANUARY 7, 1946, ON THE BASIS OF THE CORRECTION OF HIS MILITARY RECORDS AND CONSEQUENTLY HIS CLAIM WAS ALLOWED BY THE GENERAL ACCOUNTING OFFICE FOR THE PERIOD FROM JANUARY 7, 1946, TO APRIL 30, 1950, INCLUSIVE, THE RECORD INDICATING THAT PAYMENT OF RETIREMENT PAY WOULD BE MADE BY THE DEPARTMENT OF THE ARMY FOR THE PERIOD EFFECTIVE FROM AND AFTER MAY 1, 1950. IN THE OPINION OF THIS OFFICE, THAT ACTION WAS CORRECT AND WAS REQUIRED BY LAW.

FOR SUCH REASONS, YOU ARE ADVISED THAT, UPON CAREFUL RECONSIDERATION OF THE MATTER THIS OFFICE IS CONSTRAINED TO AFFIRM THE RULE FOLLOWED IN THE DECISION OF NOVEMBER 4, 1953, IN THE KIMBROUGH CASE.