B-139065, JUL. 1, 1959

B-139065: Jul 1, 1959

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YOU REQUEST REVIEW OF THAT SETTLEMENT BECAUSE YOU FEEL THAT NOT ALL OF THE PERTINENT FACTS WERE AVAILABLE TO THIS OFFICE AT THE TIME OF SETTLEMENT. YOU ALSO PRESENT TWO ALTERNATE THEORIES REGARDING INCREASED RETIREMENT PAY WHICH YOU FEEL IS DUE TO YOU. IT APPEARS FROM THE RECORD THAT YOU WERE PLACED ON THE RETIRED LIST IN THE GRADE OF CAPTAIN EFFECTIVE DECEMBER 31. WAS DENIED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'. YOU STATE THAT THIS DENIAL WAS IN ERROR. AS PROOF OF THIS ASSERTION YOU HAVE SUBMITTED PHOTOSTATIC COPIES OF SEVERAL LETTERS TO AND FROM THE ARMY FINANCE OFFICE DURING THE PERIOD OF LATE 1944 AND EARLY 1945.

B-139065, JUL. 1, 1959

TO CAPTAIN LARA P. GOOD, 04977, RETIRED:

YOUR LETTER OF FEBRUARY 24, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF DECEMBER 30, 1958, WHICH AUTHORIZED ADDITIONAL RETIREMENT PAY FOR THE PERIOD OF AUGUST 6, 1948, THROUGH OCTOBER 31, 1958, UNDER THE THEORY OF GORDON V. UNITED STATES, 134 C.CLS. 840. YOU REQUEST REVIEW OF THAT SETTLEMENT BECAUSE YOU FEEL THAT NOT ALL OF THE PERTINENT FACTS WERE AVAILABLE TO THIS OFFICE AT THE TIME OF SETTLEMENT, AND YOU ALSO PRESENT TWO ALTERNATE THEORIES REGARDING INCREASED RETIREMENT PAY WHICH YOU FEEL IS DUE TO YOU.

IT APPEARS FROM THE RECORD THAT YOU WERE PLACED ON THE RETIRED LIST IN THE GRADE OF CAPTAIN EFFECTIVE DECEMBER 31, 1922, FOR DISABILITY, PURSUANT TO THE PROVISIONS OF SECTION 1251, REVISED STATUTES, UPON COMPLETION OF OVER SIX YEARS' SERVICE. THE APPLICATION OF THE THEORY OF THE GORDON CASE INCREASED YOUR SERVICE FOR LONGEVITY PAY PURPOSES TO OVER 27 YEARS. OUR SETTLEMENT OF DECEMBER 30, 1958, ALLOWING YOU $14,097.18 INCLUDED ADDITIONAL RETIRED PAY FOR THE PERIOD OF AUGUST 6, 1948, THROUGH OCTOBER 31, 1958. YOUR CLAIM FOR THE PERIOD TO AUGUST 6, 1948, WAS DENIED PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH READS AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY A STATE,TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.'

YOU STATE THAT THIS DENIAL WAS IN ERROR, SINCE YOU FILED A CLAIM IN THIS OFFICE FOR INCREASED RETIREMENT PAY IN 1945. AS PROOF OF THIS ASSERTION YOU HAVE SUBMITTED PHOTOSTATIC COPIES OF SEVERAL LETTERS TO AND FROM THE ARMY FINANCE OFFICE DURING THE PERIOD OF LATE 1944 AND EARLY 1945. THE LETTERS FROM THE ARMY FINANCE OFFICE DENIED YOUR CLAIMS AND ADVISED YOU TO SUBMIT YOUR CLAIM TO THE GENERAL ACCOUNTING OFFICE. A PHOTOSTATIC COPY OF WHAT YOU STATE IS A CARBON COPY OF LETTER ADDRESSED TO THE GENERAL ACCOUNTING OFFICE DATED JUNE 15, 1945, IS INCLUDED AS EVIDENCE THAT A CLAIM WAS ACTUALLY MADE.

THAT LETTER MAKES A CLAIM FOR INCREASED RETIRED PAY ON TWO THEORIES, ONE SIMILAR TO THAT FOUND VALID BY THE COURT OF CLAIMS IN THE GORDON CASE. SUCH A CLAIM, IF PROPERLY FILED IN THE GENERAL ACCOUNTING OFFICE, WOULD TOLL THE ABOVE QUOTED STATUTE. HOWEVER, THERE IS NO RECORD OF RECEIPT OF YOUR LETTER OF JUNE 15, 1945, IN THIS OFFICE. THE ONLY RECORD OF PRIOR CLAIMS FILED BY YOU WITH THIS OFFICE WAS DESTROYED PURSUANT TO LAW ON OR ABOUT APRIL 11, 1958. A SEARCH OF RECORDS WITH CLAIMS NUMBERS SIMILAR TO THAT OF THE FILE DESTROYED INDICATES THAT THE FILE DESTROYED AT THAT TIME CARRIED A NUMBER ASSIGNED IN THE LAST QUARTER OF 1924. NO FURTHER EVIDENCE OF THE CONTENTS OF THAT FILE IS PRESENTLY AVAILABLE. IT CAN BE SEEN, THEREFOR, THAT THIS OFFICE HAS NO EVIDENCE OF RECORD TO SUPPORT YOUR CONTENTION THAT A CLAIM WAS ACTUALLY FILED SOMETIME DURING 1945. IF SUCH A CLAIM HAD BEEN RECEIVED HERE, WE WOULD HAVE TAKEN ACTION ON IT AND DOUBTLESS YOU WOULD HAVE BEEN NOTIFIED OF THAT ACTION. THE PHOTOSTATIC COPY SUBMITTED CANNOT BE CONSIDERED SUFFICIENT TO SUPPORT PAYMENT IN ABSENCE OF OTHER EVIDENCE INDICATING THAT THE CLAIM WAS ACTUALLY RECEIVED BY THIS OFFICE AS REQUIRED BY THE QUOTED STATUTE.

THE BURDEN OF PROOF OF A CLAIM AGAINST THE UNITED STATES IS ON THE CLAIMANT. IT FOLLOWS THAT HE MUST PRESENT EVIDENCE SUFFICIENT TO SUPPORT PAYMENT. THIS REMAINS TRUE EVEN WHEN RECORDS WHICH MIGHT SUPPORT THE CLAIMANT HAVE BEEN DESTROYED PURSUANT TO LAW. B-87560, FEBRUARY 9, 1951; B-85772, FEBRUARY 8, 1950. ACCORDINGLY, NO PAYMENT OF ADDITIONAL RETIREMENT PAY FOR THE PERIOD OF NOVEMBER 11, 1943, THROUGH AUGUST 5, 1948, MAY BE MADE UPON THE EVIDENCE PRESENTLY AVAILABLE TO THIS OFFICE.

YOUR LETTER ALSO STATES THAT ON VARIOUS OCCASIONS YOU HAVE FILED CLAIMS WITH THE FINANCE OFFICE, UNITED STATES ARMY, FOR ADDITIONAL RETIRED PAY UNDER THE THEORY OF THE GORDON CASE AND THAT ALL SUCH CLAIMS WERE DENIED PRIOR TO OUR SETTLEMENT OF DECEMBER 30, 1958. WHILE THE FACT THAT CLAIMS WERE MADE WITH THE FINANCE OFFICE, U.S. ARMY, IS NOT DENIED, SUCH A FILING DOES NOT CONSTITUTE A FILING IN THIS OFFICE WITHIN THE TERMS OF THE ACT OF OCTOBER 9, 1940. 32 COMP. GEN. 267; B-131512, SEPTEMBER 3, 1957. THEREFORE, CLAIMS FILED WITH THE FINANCE OFFICE, UNITED STATES ARMY, CANNOT BE CONSIDERED TO HAVE TOLLED THE BAR OF THE ACT OF OCTOBER 9, 1940, AND HENCE, PROVIDES NO BASIS FOR CONSIDERATION OF YOUR CLAIM BY THIS OFFICE. YOU MAY ALSO BE INFORMED THAT THE BAR OF THE QUOTED STATUTE IS MANDATORY AND CANNOT BE WAIVED BY THIS OFFICE OR BY ANY OFFICER OF THE GOVERNMENT.

YOUR LETTER ALSO REQUESTS REVIEW OF THAT PORTION OF OUR SETTLEMENT OF DECEMBER 30, 1958, WHICH DENIED YOUR CLAIM FOR PAY BASED UPON THE PAY RECEIVED BY A MAJOR WITH OVER 27 YEARS' SERVICE. AVAILABLE ARMY RECORDS AND INFORMATION FURNISHED BY THE ADJUTANT GENERAL INDICATE THAT THE HIGHEST RANK SATISFACTORILY HELD BY YOU WAS CAPTAIN. IT APPEARS THAT YOUR CLAIM FOR RETIREMENT PAY AS A MAJOR WITH OVER 27 YEARS SERVICE IS BASED UPON A MISUNDERSTANDING OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, WHICH WAS IN EFFECT AT THE TIME OF YOUR RE RETIREMENT ON NOVEMBER 11, 1943. THE APPLICABLE PORTION OF THE STATUTE IS AS FOLLOWS:

"THE PAY OF THE FIFTH PERIOD SHALL BE PAID TO LIEUTENANT COLONELS OF THE ARMY, COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO ARE NOT ENTITLED TO THE PAY OF THE SIXTH PERIOD; AND TO MAJORS OF THE ARMY, LIEUTENANT COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, WHO HAVE COMPLETED TWENTY-THREE YEARS' SERVICE.

"THE PAY OF THE FOURTH PERIOD SHALL BE PAID TO MAJORS OF THE ARMY, LIEUTENANT COMMANDERS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE WHO ARE NOT ENTITLED TO THE PAY OF THE FIFTH PERIOD; TO CAPTAINS OF THE ARMY, LIEUTENANTS OF THE NAVY, AND OFFICERS OF CORRESPONDING GRADE, WHO HAVE COMPLETED SEVENTEEN YEARS' SERVICE.'

YOUR CONTENTION APPEARS TO BE THAT, INASMUCH AS A CAPTAIN WITH OVER 17 YEARS' SERVICE WAS TO RECEIVE THE PAY OF THE FOURTH PERIOD, WHICH WAS THE PAY GRADE ASSIGNED TO A MAJOR, AND SINCE A MAJOR WITH OVER 23 YEARS' SERVICE WAS TO RECEIVE THE PAY OF THE FIFTH PERIOD, A CAPTAIN WITH OVER 23 YEARS' SERVICE SHOULD ALSO RECEIVE THE PAY OF THE FIFTH PERIOD. SUCH CONTENTION IS WITHOUT BASIS IN THE LANGUAGE OF THE STATUTE. IT CLEARLY STATED THAT A CAPTAIN WHO HAS COMPLETED 17 YEARS' SERVICE SHALL RECEIVE THE PAY OF THE FOURTH PERIOD AND THAT A MAJOR WHO HAS COMPLETED 23 YEARS' SERVICE SHALL RECEIVE THE PAY OF THE FIFTH PERIOD. THERE IS NOTHING TO INDICATE THAT BECAUSE A CAPTAIN HAS COMPLETED 23 YEARS OF SERVICE HE SHALL BE ENTITLED TO THE SAME PAY AS A MAJOR WITH A SIMILAR AMOUNT OF SERVICE. ON THE CONTRARY THE CLEAR IMPORT OF THE STATUTE IS TO ALLOW THE PAY OF THE NEXT HIGHER PERIOD TO OFFICERS WHO HAVE COMPLETED THE STIPULATED TERM OF SERVICE. HAD CONGRESS INTENDED TO AUTHORIZE PAYMENT ON THE THEORY YOU ADVANCE, SOME INDICATION OF SUCH INTENT WOULD NECESSARILY HAVE BEEN INCLUDED IN THE STATUTE.

IT APPEARS THAT WHILE ON ACTIVE DUTY YOU WERE NOT DRAWING THE PAY OF A MAJOR WITH OVER 23 YEARS' SERVICE, BUT RATHER DRAWING THE PAY OF A CAPTAIN WITH OVER 23 YEARS' SERVICE, WHICH IS BASED UPON THE SAME PAY PERIOD (FOURTH) AS THAT DRAWN BY A MAJOR WITH LESS THAN 23 YEARS SERVICE. YOU CANNOT BE CONSIDERED TO BE ENTITLED TO RETIREMENT PAY ASA MAJOR WITH OVER 23 YEARS' SERVICE, SINCE YOU DID NOT HOLD THAT RANK WHILE ON ACTIVE DUTY AND HAVE NEVER BEEN ENTITLED TO PAY BASED UPON THAT RANK AND PERIOD OF SERVICE. FOR THIS REASON IT APPEARS THAT THE SETTLEMENT OF DECEMBER 30, 1958, WHICH ALLOWED YOU THE DIFFERENCE BETWEEN 75 PERCENT OF ACTIVE DUTY PAY AS A CAPTAIN RETIRED FOR DISABILITY WITH OVER 6 YEARS' SERVICE AND 75 PERCENT OF ACTIVE DUTY PAY FOR A CAPTAIN WITH OVER 27 YEARS' SERVICE WAS CORRECT AND CONSISTENT WITH THE PAY READJUSTMENT ACT OF 1942, AND SUBSEQUENTLY AUTHORIZED PAY INCREASES FOR RETIRED PERSONNEL.

YOUR THIRD CLAIM FOR INCREASED RETIRED PAY IS BASED UPON YOUR SERVICE IN THE CALIFORNIA NATIONAL GUARD IN THE RANK OF COLONEL WITH DATE OF RANK FROM FEBRUARY 25, 1947, AND YOUR INTERPRETATION OF GRAYSON V. UNITED STATES, 137 C.CLS. 779. AS PROOF OF THIS CLAIM YOU HAVE FORWARDED PHOTOSTATIC COPIES OF YOUR COMMISSION BY THE STATE OF CALIFORNIA, AND STATE OF CALIFORNIA MILITARY DEPARTMENT SPECIAL ORDERS NO. 186, DATED SEPTEMBER 27, 1956, ACCEPTING YOUR VOLUNTARY RESIGNATION IN THE RANK OF COLONEL AND PLACING YOU UPON THE RETIRED LIST OF THE CALIFORNIA NATIONAL GUARD IN THE RANK OF BRIGADIER GENERAL AND A STATEMENT OF SERVICE PREPARED BY YOU.

THE FACTS ALLEGED BY YOU CONCERNING YOUR SERVICE IN THE CALIFORNIA NATIONAL GUARD ARE NOT DISPUTED BY THIS OFFICE. HOWEVER, THOSE FACTS DO NOT APPEAR TO ENTITLE YOU TO RETIRED PAY BASED UPON THE RANK ATTAINED IN THE NATIONAL GUARD. YOUR INTERPRETATION OF THE GRAYSON CASE APPEARS ERRONEOUS, SINCE THE MEMBER INVOLVED IN THAT CASE WAS NOT AWARDED ADDITIONAL RETIRED PAY ON THE BASIS OF A HIGHER RANK ATTAINED DURING SERVICE IN A NATIONAL GUARD UNIT, BUT RATHER ON THE BASIS OF A HIGHER RANK GAINED WHILE ON ACTIVE FEDERAL SERVICE AS A BRIGADIER GENERAL, ARMY OF THE UNITED STATES. THE ADDITIONAL RETIRED PAY AWARDED IN THE GRAYSON CASE IS BASED UPON THE COURT OF CLAIMS INTERPRETATION OF SECTION 203 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1081, 1085. SECTION 203 (A) PROVIDED AS FOLLOWS:

"SEC. 203 (A). EACH COMMISSIONED OFFICER OF THE REGULAR ARMY OR OF ANY RESERVE COMPONENT OF THE ARMY OF THE UNITED STATES, AND EACH COMMISSIONED OFFICER OF THE REGULAR AIR FORCE OR OF ANY RESERVE COMPONENT OF THE AIR FORCE OF THE UNITED STATES, HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY UNDER ANY PROVISION OF LAW SHALL BE ADVANCED ON THE APPLICABLE OFFICERS' RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED SATISFACTORILY FOR NOT LESS THAN SIX MONTHS WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIRED PAY AT THE RATE PRESCRIBED BY LAW, COMPUTED ON THE BASIS OF THE BASE AND LONGEVITY PAY WHICH HE WOULD RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH HIGHER GRADE: PROVIDED, THAT RETIRED PAY OF SUCH HIGHEST GRADE SHALL BE WITHOUT CREDIT FOR SERVICE ON THE RETIRED LIST.'

AN EXPLANATION OF THE PURPOSE OF THIS SECTION AND THE EFFECT OF THE GRAYSON CASE WAS INCLUDED IN 37 COMP. GEN. 538 (COPY ENCLOSED). THE EXPLANATION OF SECTION 203 (A) IN PERTINENT PART IS AS FOLLOWS:

"THE PERTINENT PROVISIONS OF SECTION 203 (A) OF THE 1948 LAW--- AS AMENDED BY PUBLIC LAW 547, 84TH CONGRESS, MAY 31, 1956, 70 STAT. 222, DELETING THE PHRASE "DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946,"--- WERE REPLACED BY SECTION 3963 (A), TITLE 10, U.S. CODE, ACT OF AUGUST 10, 1956, 70A STAT. 230, 231. A COMMISSIONED OFFICER WITHIN THE SCOPE OF SECTION 3963 (A) OF THE 1956 ACT IS ENTITLED TO A RETIRED GRADE EQUAL TO THE "HIGHEST TEMPORARY GRADE" IN THE ARMY IN WHICH HE "SERVED ON ACTIVE DUTY SATISFACTORILY" AS DETERMINED BY THE SECRETARY OF THE ARMY "FOR NOT LESS THAN SIX MONTHS.' THE TERM "ACTIVE DUTY" IS DEFINED IN SECTION 101 (22), TITLE 10, AND IN SECTION 101 (11), TITLE 32, U.S. CODE, 70A STAT. 5,597, RESPECTIVELY, AS "FULL-TIME DUTY IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES.' THE DEFINITION SAYS THAT "ACTIVE DUTY" INCLUDES "DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE MILITARY SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.'"

IT IS CLEAR THAT THE FACTS PRESENTED BY YOU DO NOT ENTITLE YOU TO ADDITIONAL RETIRED PAY UNDER THE THEORY OF THE GRAYSON CASE. THE SECRETARY OF THE ARMY HAS NOT CERTIFIED THAT YOU AT ANY TIME HELD A RANK HIGHER THAN CAPTAIN WHILE IN THE ACTIVE FEDERAL SERVICE; ON THE CONTRARY, AS PREVIOUSLY STATED, THE ADJUTANT GENERAL HAS INDICATED THAT THE HIGHEST RANK YOU HAVE HELD WHILE ON ACTIVE FEDERAL SERVICE WAS CAPTAIN. THEREFORE APPEARS THAT THERE IS NO MERIT IN YOUR CLAIM FOR INCREASED RETIREMENT PAY. ACCORDINGLY, OUR SETTLEMENT OF DECEMBER 30, 1958, MUST BE, AND IS SUSTAINED.

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