B-137384, SEPTEMBER 11, 1959, 39 COMP. GEN. 178

B-137384: Sep 11, 1959

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IS MERELY AN AFFIRMATION OF THE FACTS AS THEY ALREADY EXIST IN THE OFFICER'S MILITARY RECORD RATHER THAN CORRECTION OF A FACTUAL SITUATION AND. SUCH A RECORD CORRECTION IS NOT FINAL AND CONCLUSIVE UNDER 10 U.S.C. 1552 AND THE OFFICER'S CLAIM FOR INCREASED RETIRED PAY FOR A PERIOD MORE THAN TEN YEARS PRIOR TO THE SUBMISSION OF THE CLAIM IS FOR DISALLOWANCE. 1959: REFERENCE IS MADE TO YOUR UNDATED LETTER FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE ON JULY 21. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY AN ENCLOSED VOUCHER IN FAVOR OF CAPTAIN VICTOR L. WAS RETIRED FOR DISABILITY ON SEPTEMBER 30. THAT HE WAS RECALLED TO ACTIVE DUTY ON JUNE 30. HE WAS PAID RETIRED PAY FROM FEBRUARY 24.

B-137384, SEPTEMBER 11, 1959, 39 COMP. GEN. 178

MILITARY PERSONNEL - RECORD CORRECTION - RECITAL OF EXISTING FACTS V. CORRECTION - TEN-YEAR STATUTE OF LIMITATIONS THE CORRECTION OF RECORDS OF A RETIRED MILITARY OFFICER TO SHOW THE ACTUAL NUMBER OF YEARS OF ACTIVE AND INACTIVE SERVICE CREDITABLE FOR RETIRED PAY PURPOSES IN AN ATTEMPT TO AVOID THE APPLICATION OF TEN-YEAR STATUTE OF LIMITATIONS ON CLAIMS RECOGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, 31 U.S.C. 71A, SO THAT THE OFFICER MAY BE PAID INCREASED RETIRED PAY FOR A PERIOD MORE THAN TEN YEARS PRIOR TO THE SUBMISSION OF HIS CLAIM, IS MERELY AN AFFIRMATION OF THE FACTS AS THEY ALREADY EXIST IN THE OFFICER'S MILITARY RECORD RATHER THAN CORRECTION OF A FACTUAL SITUATION AND, THEREFORE, SUCH A RECORD CORRECTION IS NOT FINAL AND CONCLUSIVE UNDER 10 U.S.C. 1552 AND THE OFFICER'S CLAIM FOR INCREASED RETIRED PAY FOR A PERIOD MORE THAN TEN YEARS PRIOR TO THE SUBMISSION OF THE CLAIM IS FOR DISALLOWANCE.

TO J. L. WHIPPLE, DEPARTMENT OF THE ARMY, SEPTEMBER 11, 1959:

REFERENCE IS MADE TO YOUR UNDATED LETTER FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE ON JULY 21, 1959, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY AN ENCLOSED VOUCHER IN FAVOR OF CAPTAIN VICTOR L. OLESON, UNITED STATES ARMY, RETIRED, IN THE AMOUNT OF $1,288.44, REPRESENTING INCREASED RETIRED PAY APPARENTLY FOR THE PERIOD FEBRUARY 24, 1943, TO AUGUST 27, 1948. THE SUBMISSION HAS BEEN ALLOTTED D.O. NUMBER 437 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT CAPTAIN OLESON, WHO HAD MILITARY SERVICE PRIOR TO NOVEMBER 12, 1918, WAS RETIRED FOR DISABILITY ON SEPTEMBER 30, 1934; AND THAT HE WAS RECALLED TO ACTIVE DUTY ON JUNE 30, 1941, AND SERVED ON SUCH DUTY UNTIL FEBRUARY 23, 1943. HIS SERVICE AT TIME OF RETIREMENT PLUS ACTIVE DUTY SUBSEQUENT TO RETIREMENT TOTALED MORE THAN 21 YEARS. HE WAS PAID RETIRED PAY FROM FEBRUARY 24, 1943, AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF A CAPTAIN WITH OVER 21 AND LESS THAN 24 YEARS' SERVICE.

IN THE CASE OF GORDON V. UNITED STATES, 134 C.1CLS. 840, IT WAS HELD THAT AN OFFICER WHO HAD BEEN RETIRED FOR DISABILITY AND SUBSEQUENTLY RECALLED TO ACTIVE DUTY WAS ENTITLED, IN THE COMPUTATION OF HIS RETIRED PAY AFTER RELIEF FROM SUCH ACTIVE DUTY, TO CREDIT FOR INACTIVE TIME BETWEEN DATE OF RETIREMENT AND DATE OF RECALL TO ACTIVE DUTY. ON AUGUST 28, 1958, CAPTAIN OLESON PRESENTED A CLAIM TO US (ON THE THEORY OF THE GORDON CASE FOR INCREASED RETIRED PAY FOR THE PERIOD AUGUST 1, 1948, TO JULY 31, 1952, AT THE RATE OF 75 PERCENT OF THE ACTIVE-DUTY PAY OF A CAPTAIN WITH OVER 27 AND LESS THAN 30 YEARS'S SERVICE, SUCH INCREASE BEING THE RESULT OF INCLUDING MORE THAN SIX YEARS TIME BETWEEN RETIREMENT AND RECALL TO ACTIVE DUTY. CAPTAIN OLESON'S CLAIM SUBSEQUENTLY WAS AMENDED TO COVER THE PERIOD FROM AUGUST 1, 1948, TO DATE OF SETTLEMENT.

ON NOVEMBER 24, 1958, UNDER THE THEORY OF THE GORDON CASE WE ALLOWED CAPTAIN OLESON'S CLAIM FOR THE PERIOD AUGUST 28, 1948, TO OCTOBER 31, 1958, THE PORTION FROM AUGUST 1 TO 27, 1948, 31 U.S.C. 71A, BEING DENIED UNDER AUTHORITY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES:

THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY 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 * * *

THE DEPARTMENT OF THE ARMY HAS PAID CAPTAIN OLESON BEGINNING NOVEMBER 1, 1958, ON THE BASIS OF OVER 27 YEARS' SERVICE.

SECTION 1552 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART THAT:

(A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

CAPTAIN OLESON'S MILITARY RECORDS PURPORTEDLY HAVE BEEN "CORRECTED" UNDER THE ABOVE PROVISIONS OF LAW TO SHOW:

A. THAT AS OF 24 FEBRUARY 1943 HE WAS CREDITED FOR LONGEVITY PAY PURPOSES WITH OVER 27 YEARS OF SERVICE AS COMPUTED UNDER THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607, 77TH CONGRESS); AND

B. THAT THE DEPARTMENT OF THE ARMY PAY TO VICTOR L. OLESON OR OTHER PROPER PERSON, OR PERSONS, ALL MONEY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF MILITARY RECORDS.

UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO "CORRECT" MILITARY RECORDS AND IT IS OUR VIEW THAT ACTION UNDER THAT SECTION, IF IT IS TO GIVE RISE TO A RIGHT TO THE PAYMENT OF MONEY, MUST, WITHOUT EXCEPTION, BE A CHANGE OF FACTS AS SET OUT IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF SOME OF, SUCH FACTS, SUCH CHANGE, ADDITION, OR DELETION BEING NECESSARY TO ESTABLISH A PROPER BASIS TO SUPPORT THE PAYMENT. AN AFFIRMATION OF FACTS ALREADY IN A MILITARY RECORD DOES NOT CONSTITUTE A CORRECTION OF THAT RECORD AND, HENCE, IS NOT FINAL AND CONCLUSIVE ACTION UNDER 10 U.S.C. 1552.

ON FEBRUARY 24, 1943, CAPTAIN OLESON WAS CREDITED WITH OVER 27 YEARS OF SERVICE, ACTIVE AND INACTIVE. HE HAS BEEN PAID ON THAT BASIS FROM AUGUST 28, 1948. THE PURPORTED CORRECTION MAKES NO CHANGE IN THE RECORD UPON WHICH THE OFFICER'S RIGHT TO RETIRED PAY DEPENDS.

THE CORRECTION BOARD'S ACTION IN THIS CASE APPEARS TO BE AN ATTEMPT TO AVOID THE OPERATION OF A STATUTE OF LIMITATIONS BY MEANS OF A RECITAL OF FACTS IN THE EXISTING RECORD. SUCH ACTION IS WITHOUT LEGAL SIGNIFICANCE. THE AUTHORITY OF THE SECRETARY CONCERNED, ACTING THROUGH A CORRECTION BOARD, IS LIMITED TO THE CORRECTION OF FACTUAL SITUATIONS AND THE RIGHT OF THE MEMBER INVOLVED TO RECEIVE A PAYMENT OF MONEY FROM THE GOVERNMENT DEPENDS ON A PROPER APPLICATION OF PERTINENT STATUTES TO THE FACTS SHOWN IN THE CORRECTED RECORD. 34 COMP. GEN. 7, 12; 38 ID. 208, 210. IF THE EXISTING RECORD STATES THE ACTUAL FACTS AND THE PURPORTED CORRECTION MERELY RECITES SUCH FACTS, NO ADDITIONAL RIGHTS CAN ACCRUE AS A RESULT OF SUCH ACTION.

CAPTAIN OLESON'S CLAIM FOR THE PERIOD PRIOR TO AUGUST 28, 1948, WAS PROPERLY DISALLOWED UNDER THE ACT OF OCTOBER 9, 1940, AND THAT ACT STILL BARS PAYMENT OF HIS CLAIM.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.

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