B-152388, DEC. 5, 1963
Highlights
HEADQUARTERS UNITED STATES COAST GUARD: REFERENCE IS MADE TO YOUR LETTER OF JULY 23. - IN EFFECT REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS PROPER ON THE VOUCHER (ENCLOSURE (7) OF YOUR LETTER) STATED IN FAVOR OF MR. LUKAS WAS RETIRED EFFECTIVE SEPTEMBER 1. THE CLAIM PRESENTED ON DD FORM 827 (ENCLOSURE (1) OF YOUR LETTER) IS FOR RETIRED PAY COMPUTED UNDER THE PROVISIONS OF LAW AND ON THE RATES OF ACTIVE DUTY PAY WHICH WERE IN EFFECT ON SEPTEMBER 30. SUCH CLAIM IS ADVANCED ON THE CONTENTION (1) THAT HE WAS "A HOSPITAL PATIENT" ON OCTOBER 1. (2) THAT HE WAS RETIRED PRIOR TO JANUARY 1. AS A RESULT OF THE PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS "HOSPITALIZED" ON OCTOBER 1.
B-152388, DEC. 5, 1963
TO MR. R. H. MILLS, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS UNITED STATES COAST GUARD:
REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1963, AND ENCLOSURES, ADDRESSED TO THE DIRECTOR OF THE CLAIMS DIVISION OF THIS OFFICE, AS A REQUEST FOR "DETERMINATION OF ENTITLEMENT"--- SEE 31 U.S.C. 82 (D/--- IN EFFECT REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS PROPER ON THE VOUCHER (ENCLOSURE (7) OF YOUR LETTER) STATED IN FAVOR OF MR. VINCENT S. LUKAS, BMC, U.S. COAST GUARD, RETIRED, FOR INCREASED RETIRED PAY BELIEVED DUE HIM FOR THE PERIOD SEPTEMBER 1, 1950, TO JUNE 30, 1963, INCLUSIVE.
MR. LUKAS WAS RETIRED EFFECTIVE SEPTEMBER 1, 1950, BY REASON OF PHYSICAL DISABILITY (RATED AT 60 PERCENT) IN ACCORDANCE WITH THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816- 825, WITH RETIRED PAY COMPUTED AS PRESCRIBED IN THAT ACT AS AMENDED. THE CLAIM PRESENTED ON DD FORM 827 (ENCLOSURE (1) OF YOUR LETTER) IS FOR RETIRED PAY COMPUTED UNDER THE PROVISIONS OF LAW AND ON THE RATES OF ACTIVE DUTY PAY WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949. SUCH CLAIM IS ADVANCED ON THE CONTENTION (1) THAT HE WAS "A HOSPITAL PATIENT" ON OCTOBER 1, 1949, (2) THAT HE WAS RETIRED PRIOR TO JANUARY 1, 1951, AS A RESULT OF THE PHYSICAL DISABILITY GROWING OUT OF THE INJURY OR DISEASE FOR WHICH HE WAS "HOSPITALIZED" ON OCTOBER 1, 1949, AND (3) THAT HIS STATUS THEREFORE COMES WITHIN THE SCOPE OF SECTION 415 OF THE 1949 LAW AS AMENDED BY THE ACT OF MAY 10, 1950, CH. 175, 64 STAT. 158, PERMITTING IN SUCH CIRCUMSTANCES AN ELECTION TO RECEIVE RETIREMENT BENEFITS COMPUTED UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949, IN LIEU OF THE DISABILITY RETIRED PAY BENEFITS PRESCRIBED IN THE 1949 ACT.
MR. LUKAS' CLAIM WAS RECEIVED IN THIS OFFICE ON JULY 25, 1963, AND CONSEQUENTLY THE PROVISIONS OF 31 U.S.C. 71A BAR FROM OUR CONSIDERATION ANY PERIOD OF SUCH CLAIM PRECEDING JULY 25, 1953.
WE HAVE BEEN ADVISED THAT AT HIS REQUEST THE MILITARY RECORDS OF VINCENT S. LUKAS WERE CORRECTED IN OCTOBER 1963 PURSUANT TO THE APPROVED RECOMMENDATIONS OF THE BOARD FOR CORRECTION OF MILITARY RECORDS, U.S. COAST GUARD, TO SHOW THAT HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, RATHER THAN THE PERMANENT DISABILITY RETIRED LIST, ON SEPTEMBER 1, 1950, AS 60 PERCENT DISABLED, AND THAT ON SEPTEMBER 1, 1955, HE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST AS 70 PERCENT DISABLED IN ACCORDANCE WITH THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. MR. LUKAS, UPON MAKING APPLICATION FOR THE CORRECTION OF HIS MILITARY RECORDS, THUS INVOKED THE JURISDICTION OF THE COAST GUARD BOARD FOR THE CORRECTION OF MILITARY RECORDS UNDER THE AUTHORITY OF 10 U.S.C. 1552.
IN COLONEL CHARLES GORDON V. UNITED STATES, 129 CT.CL. 270 (1954), A CASE WHERE THE PLAINTIFF HAD INVOKED THE JURISDICTION OF THE ARMY BOARD ON CORRECTION OF MILITARY RECORDS IT WAS HELD THAT ,PLAINTIFF IS BOUND BY THE DECISION OF THE BOARD UNLESS IT IS SHOWN THAT SUCH DECISION WAS ARBITRARY OR CAPRICIOUS OR "PROCURED BY MEANS OF FRAUD.'" ALSO SEE ROBERT E. HARRIS V. UNITED STATES, 150 CT.CL. 760 (1960). NO PROPER BASIS IS PRESENTED WHICH WOULD PERMIT PAYMENT OF ANY AMOUNT IN ADDITION TO THAT PAYABLE PURSUANT TO THE CORRECTION BOARD ACTION. IT APPEARS PERTINENT TO NOTE THAT THE AMOUNT OF MONTHLY RETIRED PAY DUE MR. LUKAS EFFECTIVE FROM SEPTEMBER 1, 1955, ON THE BASIS OF A 70 PERCENT DISABILITY RATING (RESULTING FROM THE CORRECTIONS MADE IN HIS MILITARY RECORDS) IS CONSIDERABLY GREATER THAN RETIRED PAY COMPUTED UNDER SECTION 415 OF THE 1949 LAW.
PAYMENT OF THE VOUCHER IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED HERE.