B-128594, JUN. 22, 1965

B-128594, JUN. 22, 1965

TO MR. ELMER CARL WOODWARD:

REFERENCE IS MADE TO LETTER OF MARCH 12, 1965, FROM YOUR ATTORNEY, CONCERNING YOUR CLAIM FOR INCREASED RETIRED PAY FROM OCTOBER 1, 1949, THROUGH APRIL 30, 1950, BASED ON THE SELIGA CASE, 137 CT.CL. 710 (1957).

IN TWO PREVIOUS DECISIONS IN THIS MATTER (B-128594, MARCH 28, 1963, AND AUGUST 9, 1963) YOU WERE ADVISED THAT YOU COULD QUALIFY FOR THE INCREASED RETIRED PAY BENEFITS OF A SECTION 411 (A) ELECTION (CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 823) ONLY IN THE EVENT THAT THE PHYSICAL DISABILITY ON WHICH YOU HAVE BASED YOUR CLAIM WAS INCURRED "WHILE ENTITLED TO RECEIVE BASIC PAY.' SINCE THE ADMINISTRATIVE REPORTS WE HAVE RECEIVED FROM THE BUREAU OF MEDICINE AND SURGERY, DEPARTMENT OF THE NAVY, DATED FEBRUARY 14, 1963, AND JUNE 28, 1963, EXPRESS THE VIEW THAT YOUR PHYSICAL DISABILITY WAS NEITHER INDISABILITY BEING THE NATURAL PROGRESSION OF A DEVELOPMENTAL DEFECT WHICH EXISTED PRIOR TO YOUR ENTRY INTO THE NAVAL SERVICE, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

THE ONLY NEW ELEMENT FOR CONSIDERATION AT THIS TIME IS THE FACT THAT, BASED ON THE DEFENDANT'S ADMISSION LIABILITY, JUDGMENT WAS ENTERED IN YOUR FAVOR FOR THE INCREASED RETIRED PAY CLAIMED, FOR THE PERIOD MAY 1, 1950, THROUGH NOVEMBER 30, 1964, AS PLAINTIFF NO. 34 IN THE CASE OF AFLAGUE, ET AL. V. UNITED STATES, CT.CL. NO. 212-56, FEBRUARY 12, 1965. WHILE THE ADMISSION OF LIABILITY APPEARS TO REFLECT THE VIEW THAT SINCE YOU RELIED ON EARLIER ADMINISTRATIVE INFORMATION INDICATING THAT YOUR DISABILITY WAS INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY AND YOU THUS MADE A SECTION 411 ELECTION TO HAVE YOUR RETIRED PAY COMPUTED ON THE YEARS OF ACTIVE SERVICE METHOD, THE COURT WOULD NOT NOW PERMIT A NULLIFICATION OF SUCH ELECTION. HOWEVER, A JUDGMENT BASED SOLELY ON AN ADMISSION OF LIABILITY DOES NOT ESTABLISH ENTITLEMENT TO THE RETIRED PAY IN QUESTION FOR ANY PERIOD OTHER THAN THAT COVERED BY THE JUDGMENT AND IT IS OUR VIEW THAT NO QUESTION OF NULLIFICATION IS HERE INVOLVED. YOU WERE ELIGIBLE TO MAKE A SECTION 411 ELECTION WITHOUT REGARD TO THE MATTER OF WHETHER YOUR DISABILITY WAS INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY, SINCE SECTION 411 APPLIES TO ALL MEMBERS WHO WERE RETIRED FOR DISABILITY BEFORE OCTOBER 1, 1949. YOU WERE PLACED ON THE RETIRED LIST FOR DISABILITY IN 1940. YOU MADE AN ELECTION VALID UNDER OPTION (B) OF SECTION 411 AND YOU HAVE RECEIVED THE RETIRED PAY TO WHICH YOU THEN BELIEVED YOU WERE ENTITLED AS A RESULT OF SUCH ELECTION. IT APPEARS THAT YOU WOULD HAVE BEEN ENTITLED TO THE SAME RETIRED PAY UNDER THE CASE OF BENSEN, ET AL. V. UNITED STATES (SHATTUCK, PLAINTIFF NO. 8), CT.CL. NO. 372-59, JULY 17, 1964, EVEN IF YOU HAD MADE NO ELECTION. THE QUESTION HERE INVOLVED IS WHETHER YOU WERE QUALIFIED TO ELECT OPTION (A) OF SECTION 411.

IT IS, OF COURSE, TRUE THAT IF YOUR DISABILITY HAD ACTUALLY BEEN INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY, THE DEPARTMENT OF THE NAVY WOULD HAVE BEEN IN ERROR AT THE TIME THAT YOU MADE THE SECTION 411 ELECTION IN 1951, IN FAILING TO ADVISE YOU THAT YOU COULD COUNT CERTAIN INACTIVE TIME IN THE FLEET RESERVE AND WHILE ON THE RETIRED LIST TO INCREASE THE LONGEVITY FACTOR IN DETERMINING THE AMOUNT OF YOUR RETIRED PAY. SUCH INFORMATION WAS UNNECESSARY, HOWEVER, IN VIEW OF THE FACT THAT YOUR DISABILITY WAS NOT INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY AND THE FAILURE TO FURNISH SUCH IRRELEVANT INFORMATION COULD IN NO EVENT FURNISH A BASIS FOR PAYING YOU RETIRED PAY TO WHICH YOU ARE NOT ENTITLED BY LAW.

THERE HAS BEEN NO OFFICIAL DETERMINATION BY PROPER NAVAL AUTHORITY THAT YOUR DISABILITY WAS INCURRED WHILE ENTITLED TO BASIC PAY. WHILE A REPORT OF A BOARD OF MEDICAL SURVEY HELD IN 1946 INCLUDED THE STATEMENT THAT YOUR DISABILITY WAS INCURRED IN LINE OF DUTY, THERE IS NO EVIDENCE BEFORE THIS OFFICE WHICH INDICATES THAT SUCH REPORT WAS APPROVED BY PROPER HIGHER AUTHORITY AT ANY TIME. ENDORSEMENT OF OCTOBER 23, 1946, FROM THE BUREAU OF MEDICINE AND SURGERY TO THE BUREAU OF NAVAL PERSONNEL SHOWS ONLY THAT THE BOARD'S REPORT WAS FORWARDED "FOR INFORMATION AND FILE.' IT WOULD BE MOST ANOMALOUS IF THE GOVERNMENT SHOULD BE BARRED FROM POINTING OUT THAT A FINDING BY AN ADVISORY BOARD--- IN THIS CASE A BOARD OF MEDICAL SURVEY--- WAS CONTRARY TO THE ACTUAL FACTS AS DETERMINED BY THE BUREAU OF MEDICINE AND SURGERY AND THUS BE PREVENTED FROM SHOWING THAT THE MEMBER HAS BEEN PAID THE PROPER AMOUNT AUTHORIZED BY LAW. THE FACT THAT A RETIRED PAY OFFICIAL OF THE DEPARTMENT OF THE NAVY IN LETTER TO YOU DATED OCTOBER 19, 1951, APPARENTLY ACCEPTED THE BOARD'S FINDING, DOES NOT ADD TO THE STATURE OF SUCH FINDING AS AN OFFICIAL DETERMINATION BY THE DEPARTMENT OF THE NAVY.

UNTIL IT IS ESTABLISHED THAT YOUR DISABILITY WAS INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY, WE HAVE NO ALTERNATIVE BUT TO ADHERE TO THE ACTION HERETOFORE TAKEN IN DISALLOWING YOUR CLAIM.