B-99791, DECEMBER 23, 1952, 32 COMP. GEN. 294

B-99791, DECEMBER 23, 1952, 32 COMP. GEN. 294

PAY - RETIRED - DISABILITY RETIREMENT PAY - ENTITLEMENT BASED ON CORRECTION OF MILITARY RECORDS A FORMER ARMY OFFICER WHOSE MILITARY RECORD WOULD NOT ENTITLE HIM TO RECEIVE DISABILITY RETIREMENT PAY MAY NOT BE AUTHORIZED TO RECEIVE SUCH PAY BY A DETERMINATION OF THE SECRETARY OF THE ARMY, PURPORTEDLY ACTING THROUGH THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS ESTABLISHED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, WHICH DID NOT PURPORT TO CHANGE HIS MILITARY RECORD BUT MERELY RECOMMENDED THAT THE ILLEGAL CONCLUSION THAT HE WAS ENTITLED TO DISABILITY RETIREMENT PAY BE CONFIRMED AND VALIDATED.

COMPTROLLER GENERAL WARREN TO LT. COL. JAMES H. COMINGS, DEPARTMENT OF THE ARMY, DECEMBER 23, 1952:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16, 1952, WHEREIN YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF LIEUTENANT COLONEL KARL R. ELDER, ARMY OF THE UNITED STATES, IN THE AMOUNT OF $355.68, REPRESENTING DISABILITY RETIREMENT PAY FOR THE MONTH OF SEPTEMBER 1952.

WHILE A STATEMENT OF COLONEL ELDER'S SERVICE RECORD HAS NOT BEEN FURNISHED, IT APPEARS FROM INFORMATION BEFORE THIS OFFICE THAT EFFECTIVE JULY 17, 1946, COLONEL ELDER'S RESIGNATION WAS ACCEPTED FOR THE GOOD OF THE SERVICE BUT THAT ON MAY 5, 1949, THE SECRETARY OF THE ARMY, ACTING THROUGH THE ARMY DISCHARGE REVIEW BOARD, ESTABLISHED UNDER THE PROVISIONS OF SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286, DIRECTED THAT COLONEL ELDER BE ISSUED A LETTER SHOWING HIS SEPARATION TO HAVE BEEN HONORABLE. APPARENTLY, ON FEBRUARY 15 AND 17, 1950, HE APPEARED BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS. BY PARAGRAPH 28, SPECIAL ORDERS NO. 83, DEPARTMENT OF THE ARMY, DATED APRIL 28, 1950, IT WAS ANNOUNCED THAT COLONEL ELDER HAD BEEN DETERMINED TO BE PERMANENTLY UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AND THAT HE THEREFORE WAS BEING PLACED ON THE RETIRED LIST EFFECTIVE APRIL 30, 1950, WITH RETIRED PAY EFFECTIVE MAY 1, 1950. HOWEVER, PAYMENT OF SUCH RETIRED PAY TO HIM SUBSEQUENTLY WAS DISCONTINUED IN VIEW OF DECISION OF THIS OFFICE DATED APRIL 25, 1951, 30 COMP. GEN. 409, WHEREIN IT WAS HELD THAT MEMBERS OF THE ARMY OF THE UNITED STATES WHO WERE RELEASED FROM ACTIVE DUTY, WITHOUT PAY, NOT BY REASON OF PHYSICAL DISABILITY, PRIOR TO THE DATE OF APPROVAL OF THE CAREER COMPENSATION ACT OF 1949 ( OCTOBER 12, 1949) AND WHO, SUBSEQUENT TO THAT DATE, UPON APPEARING BEFORE A PHYSICAL EVALUATION BOARD IN A CIVILIAN STATUS WERE FOUND TO BE PHYSICALLY DISABLED, ARE NOT ENTITLED TO RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949. THAT DECISION WAS BASED ON THE FACT THAT SUBSECTIONS (A) AND (B) OF SECTION 402 OF SUCH ACT, 63 STAT. 816, 817, AUTHORIZE DETERMINATIONS OF DISABILITY TO BE MADE ONLY WITH RESPECT TO MEMBERS OF THE UNIFORMED SERVICES WHO ARE "ENTITLED TO RECEIVE BASIC PAY.' SINCE COLONEL ELDER WAS NOT ENTITLED TO RECEIVE BASIC PAY WHEN THE DETERMINATION OF DISABILITY WAS MADE IN HIS CASE, NO RIGHT TO DISABILITY RETIREMENT PAY AROSE.

PURPORTEDLY, ON THE BASIS OF THE RECOMMENDATIONS OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, PUBLIC LAW 220, 65 STAT. 655, THE SECRETARY OF THE ARMY, ON JULY 3, 1952, ISSUED A DIRECTIVE TO THE ADJUTANT GENERAL OF THE ARMY READING, IN PERTINENT PART, AS FOLLOWS:

1. THAT THE PLACING OF THE NAME OF KARL R. ELDER, O 476 666, ON THE PERMANENT AUS RETIRED LIST ON 30 APRIL 1950 IN THE GRADE OF LIEUTENANT COLONEL WITH ENTITLEMENT TO RETIRED PAY FROM 1 MAY 1950, IS CONFIRMED AND VALIDATED.

UNDER THE SAID SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE AND THE SECRETARY OF THE TREASURY (WITH RESPECT TO THE COAST GUARD), 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. FROM A COPY OF THE RECOMMENDATIONS OF THE BOARD ON CORRECTION OF MILITARY RECORDS IN COLONEL ELDER'S CASE WHICH IS BEFORE THIS OFFICE, IT WOULD APPEAR THAT THE SECRETARY IN ISSUING THE ABOVE-QUOTED DIRECTIVE WAS NOT ACTING "THROUGH" THE BOARD ON CORRECTION OF MILITARY RECORDS SINCE SUCH ACTION RATHER THAN INCORPORATING ANY OF THE BOARD'S RECOMMENDATIONS APPEARS TO HAVE BEEN TAKEN INDEPENDENTLY THEREOF. HOWEVER THAT MAY BE, THE ACTION TAKEN BY THE SECRETARY IN COLONEL ELDER'S CASE DID NOT PURPORT TO EFFECT ANY CORRECTION OR CHANGE IN HIS MILITARY RECORD. IT PURPORTED ONLY TO CONFIRM AND VALIDATE THE PRIOR ILLEGAL ACTION OF PLACING THE OFFICER'S NAME ON THE RETIRED LIST. THE STATUTE DOES NOT AUTHORIZE THE SECRETARY TO CONFIRM OR TO VALIDATE ILLEGAL ACTIONS BUT DOES AUTHORIZE HIM, ACTING THROUGH BOARDS OF CIVILIAN OFFICERS OR EMPLOYEES, TO CORRECT MILITARY RECORDS AND AUTHORIZES PAYMENT ONLY ON THAT BASIS. FROM ALL THAT APPEARS, COLONEL ELDER'S MILITARY RECORD HAS NOT BEEN CORRECTED OR CHANGED BUT REMAINS AS IT WAS AND UNLESS SUCH RECORD BE CORRECTED, AS AUTHORIZED BY THE STATUTE TO SHOW A SITUATION ENTITLING HIM TO RETIRED PAY AS PROVIDED IN LAW, THERE WOULD APPEAR TO BE NO AUTHORITY FOR THE PAYMENT OF RETIRED PAY. IN THAT CONNECTION, ATTENTION IS INVITED TO DECISION OF NOVEMBER 19, 1952, B- 96905, 32 COMP. GEN. 242, INVOLVING THE APPLICATION OF SAID SECTION 207, AS AMENDED, TO A SOMEWHAT SIMILAR SITUATION IN THE NAVY, WHEN IT WAS SAID, IN PART:

* * * THE AMOUNT TO BE PAID UNDER 207 (B) PURSUANT TO A CORRECTION OF RECORDS UNDER 207 (A) DEPENDS ON A PROPER APPLICATION OF THE PAY STATUTES TO THE FACTS IN THE CASE AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORDS. * * * * * * * * * * *

IN THE PRESENT CASE, THE OFFICER'S RECORDS HAVE NOT BEEN CORRECTED TO SHOW THAT HE MET THE CONDITIONS STIPULATED IN THE SAID 1940 ACT, AS AMENDED, ON WHICH THE RIGHT TO RETIREMENT PAY DEPENDS. SINCE THE RETIREMENT PAY IS NOT BASED ON A "RETIRED" STATUS THE BARE CORRECTION OF THE RECORDS TO SHOW THAT HE WAS "RETIRED" ON AUGUST 1, 1946, DOES NOT ESTABLISH A RIGHT TO RETIREMENT PAY UNDER THE ACT. * * * * * * * * * * *

* * * NOR DOES IT APPEAR THAT THE BOARD FOR CORRECTION OF NAVAL RECORDS HAS NOW MADE ANY FINDING, DETERMINATION, OR DECISION THAT THE OFFICER WAS ACTUALLY INCAPACITATED FOR ACTIVE DUTY WHEN RELEASED FROM DUTY ON JULY 8, 1946. THUS, DESPITE THE LATTER BOARD'S DECISION CORRECTING THE OFFICER'S RECORD TO SHOW THAT HE WAS RETIRED ON AUGUST 1, 1946, THE CORRECTED RECORD DOES NOT SHOW THAT HE THEN MET THE STATUTORY CONDITIONS ON WHICH THE RIGHT TO RETIREMENT PAY WAS BASED.

SINCE IT MUST BE HELD ON THE FACTS APPEARING IN THE PRESENT CASE THAT THE ACTION TAKEN BY THE SECRETARY OF THE ARMY WAS INSUFFICIENT TO PROVIDE A RECORD BASIS SHOWING COLONEL ELDER TO BE ENTITLED TO RETIRED PAY UNDER CONDITIONS FIXED BY LAW, I HAVE TO ADVISE THAT PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.