B-105896, APRIL 19, 1954, 33 COMP. GEN. 479

B-105896, APRIL 19, 1954, 33 COMP. GEN. 479

DISABILITY RETIREMENT PAY - RECALL TO ACTIVE DUTY - ADDITIONAL DISABILITY - CORRECTION OF RECORDS A RETIRED FIRST LIEUTENANT OF THE REGULAR ARMY WHOSE RECORDS WERE CORRECTED TO SHOW PROMOTION ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COLONEL, BUT NOT CORRECTED TO SHOW THAT OFFICER SUFFERED ADDITIONAL DISABILITY OF 30 PERCENTUM WHILE SERVING ON ACTIVE DUTY UNDER TEMPORARY APPOINTMENT AS LIEUTENANT COLONEL, IS NOT ENTITLED TO RETIRED PAY BASED ON PAY OF LIEUTENANT COLONEL UNDER SECTION 4 OF THE ACT OF JUNE 29, 1943, WHICH PROVIDES FOR PROMOTION ON THE RETIRED LIST AND INCREASED RETIRED PAY ONLY IF SECRETARY OF ARMY FINDS THE ADDITIONAL DISABILITY WAS INCURRED INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER GRADE AND THAT SUCH ADDITIONAL DISABILITY IS NOT LESS THAN 30 PERCENTUM PERMANENT. SECTION 4 OF THE ACT OF JUNE 29, 1943, WHICH PROVIDES THAT AN OFFICER OF THE REGULAR ARMY RETIRED FOR DISABILITY WHO INCURS ADDITIONAL DISABILITY WHILE SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE SHALL BE PROMOTED ON RETIRED LIST TO SUCH GRADE AND RECEIVE PAY OF THAT GRADE IF ADDITIONAL DISABILITY IS NOT LESS THAN 30 PERCENTUM PERMANENT, CONTEMPLATES EXISTENCE OF AN ADDITIONAL PERMANENT DISABILITY OF OR 30 PERCENTUM OF 100 PERCENTUM DISABILITY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, APRIL 19, 1954:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF AUGUST 26, 1953, YOUR LETTER DATED JULY 7, 1953, WITH RELATED PAPERS, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER STATED IN FAVOR OF WILLIAM A. W. VON GEHR, LIEUTENANT COLONEL, UNITED STATES ARMY, RETIRED, IN THE AMOUNT OF $3,004.63, REPRESENTING THE DIFFERENCE IN RETIRED PAY BETWEEN THAT OF LIEUTENANT COLONEL, WITH OVER SIX YEARS' CREDITABLE SERVICE, AND THAT OF FIRST LIEUTENANT, WITH OVER SIX YEARS' CREDITABLE SERVICE, FOR THE PERIOD JANUARY 1, 1946, TO JUNE 28, 1948, INCLUSIVE.

IT APPEARS THAT WILLIAM A. W. VON GEHR PERFORMED ACTIVE FEDERAL SERVICE IN THE COLORADO NATIONAL GUARD, THE NATIONAL GUARD AND THE NATIONAL ARMY FROM APRIL 13, 1917, TO OCTOBER 23, 1918, AND THAT HE ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT, PHILIPPINE SCOUTS, OCTOBER 24, 1918. THIS LATTER APPOINTMENT WAS VACATED ON OCTOBER 31, 1920, WHEN HE ACCEPTED AN APPOINTMENT AS FIRST LIEUTENANT OF INFANTRY, UNITED STATES ARMY. SERVED ON ACTIVE DUTY UNDER THE LATTER APPOINTMENT UNTIL MAY 25, 1922, WHEN HE WAS RETIRED AS FIRST LIEUTENANT, UNITED STATES ARMY, FOR PHYSICAL DISABILITY, PURSUANT TO SECTION 1251, REVISED STATUTES, 10 U.S.C. 933. WAS RECALLED TO ACTIVE DUTY SEPTEMBER 21, 1942; TEMPORARILY APPOINTED CAPTAIN, ARMY OF THE UNITED STATES, OCTOBER 22, 1942; MAJOR, APRIL 24, 1943, AND LIEUTENANT COLONEL ON OCTOBER 26, 1944. ON DECEMBER 31, 1945, HE WAS RELEASED TO INACTIVE DUTY, REVERTING ON JANUARY 1, 1946, TO HIS STATUS AS FIRST LIEUTENANT, UNITED STATES ARMY, ON THE RETIRED LIST. EFFECTIVE JUNE 29, 1948, HE WAS ADVANCED ON THE RETIRED LIST FROM FIRST LIEUTENANT TO LIEUTENANT COLONEL, PURSUANT TO SECTION 203 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1085, 10 U.S.C. 1002, AND IT APPEARS THAT SINCE THAT DATE HE HAS BEEN PAID RETIRED PAY AS LIEUTENANT COLONEL, WITH OVER SIX YEARS' CREDITABLE SERVICE.

IT IS STATED THAT LIEUTENANT COLONEL VON GEHR'S CLAIM FOR THE DIFFERENCE IN RETIRED PAY BETWEEN THAT OF LIEUTENANT COLONEL, WITH OVER SIX YEARS CREDITABLE SERVICE AND THAT OF FIRST LIEUTENANT, WITH OVER SIX YEARS' CREDITABLE SERVICE, FOR THE PERIOD JANUARY 1, 1946, TO JUNE 28, 1948, IS BASED ON THE APPROVED ACTION AND RECOMMENDATION OF THE ARMY BOARD OF CORRECTION OF MILITARY RECORDS, WHICH CONVENED IN HIS CASE PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 65 STAT. 655, 5 U.S.C. 191A. ACTING UPON SUCH RECOMMENDATION THE SECRETARY OF THE ARMY, ON JULY 9, 1951, DIRECTED THAT ALL THE DEPARTMENT OF THE ARMY RECORDS PERTAINING TO WILLIAM A. W. VON GEHR BE CORRECTED BY ENTRY OF THE NOTATION THEREON THAT "HE SHALL BE HELD AND CONSIDERED TO HAVE BEEN PROMOTED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COLONEL, EFFECTIVE 1 JANUARY 1946.' IN CONNECTION WITH THE FOREGOING, LIEUTENANT COLONEL VON GEHR ON APRIL 17, 1953, EXECUTED A " CLAIM CERTIFICATE" READING IN PERTINENT PART AS FOLLOWS:

I HEREBY MAKE CLAIM IN THE AMOUNT SHOWN ABOVE FOR MONETARY BENEFITS TO ME BY REASON OF THE CORRECTION OF MY MILITARY RECORDS, AND DO AGREE THAT ACCEPTANCE OF THIS SETTLEMENT SHALL CONSTITUTE COMPLETE RELEASE BY ME OF ANY CLAIM AGAINST THE UNITED STATES GOVERNMENT BY REASON OF THE CORRECTION OF MY MILITARY PAY RECORDS, EXCEPT FOR MONETARY BENEFITS DUE ME BY REASON OF DIFFERENCE IN PAY BETWEEN A LIEUTENANT COLONEL WITH OVER SIX YEARS SERVICE AND A LIEUTENANT COLONEL WITH OVER 27 YEARS SERVICE, WHICH SAID CLAIM FOR DIFFERENCE IN PAY IS PRESENTLY PENDING BEFORE THE UNITED STATES COURT OF CLAIMS IN THE CASE OF WILLIAM A. W. VON GEHR V. UNITED STATES.

I HEREBY CERTIFY AND AFFIRM, WITH FULL KNOWLEDGE OF PENALTIES PRESCRIBED BY LAW FOR MAKING FALSE CLAIM AGAINST THE UNITED STATES, THAT I HAVE NOT HERETO FORE BEEN COMPENSATED BY CONGRESS THROUGH ENACTMENT OF A PRIVATE LAW OR IN ANY MANNER FOR THE AMOUNT CLAIMED HEREIN AS A RESULT OF THE CORRECTION OF MY MILITARY RECORDS, EXCEPT THAT THERE IS PENDING IN THE UNITED STATES COURT OF CLAIMS A CAUSE OF ACTION REFERRED TO ABOVE WHEREIN THE MONETARY BENEFITS I DO AGREE TO ACCEPT ARE CLAIMED IN ONE COUNT OF THE PETITION.

IN PARAGRAPH IX, COURT OF CLAIMS PETITION NO. 50321, FILED SEPTEMBER 17, 1951, THE PLAINTIFF, LIEUTENANT COLONEL VON GEHR, CLAIMS:

* * * THE DIFFERENCE BETWEEN THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER 27 YEARS' SERVICE AND THE RETIRED PAY OF A FIRST LIEUTENANT WITH OVER SIX YEARS' SERVICE FROM JANUARY 1, 1946, TO JUNE 28, 1948, AND THE DIFFERENCE BETWEEN THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER 27 YEARS' SERVICE AND THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER SIX YEARS' SERVICE FROM JUNE 29, 1948, TO THE DATE JUDGMENT MAY BE RENDERED HEREIN AMOUNTING TO $9,600, MORE OR LESS, SUBJECT TO AN ACCURATE COMPUTATION BY THE GENERAL ACCOUNTING OFFICE, FOR WHICH SUM THE PLAINTIFF ASKS JUDGMENT. IN THE ALTERNATIVE, THE PLAINTIFF CLAIMS THE DIFFERENCE BETWEEN THE RETIRED PAY OF A LIEUTENANT COLONEL WITH OVER SIX YEARS' SERVICE AND THE RETIRED PAY OF A FIRST LIEUTENANT WITH OVER SIX YEARS' SERVICE FROM JANUARY 1, 1946, TO JUNE 28, 1948, AMOUNTING TO $3,000, MORE OR LESS, SUBJECT TO AN ACCURATE COMPUTATION BY THE GENERAL ACCOUNTING OFFICE, FOR WHICH SUM THE PLAINTIFF ASKS JUDGMENT.

IT IS CLEAR FROM THE FOREGOING THAT JURISDICTION OF THIS MATTER, INCLUDING JURISDICTION OF THE ALTERNATIVE CLAIM SET FORTH IN PARAGRAPH IX OF THE PETITION, HAS BEEN COMMITTED TO THE COURT OF CLAIMS (28 U.S.C. 1491, 2501). HENCE THERE IS NOW PENDING BEFORE THE SAID COURT THE IDENTICAL CLAIM PRESENTED ON THE VOUCHER SUBMITTED. IT IS NOT THE PRACTICE OF THIS OFFICE TO RENDER AN ADVANCE DECISION ON A CLAIM WHICH IS PENDING IN THE COURT OF CLAIMS. SEE A-24790, DATED JUNE 13, 1930, CITED IN PARAGRAPH 10, ARMY REGULATIONS 35-601, PROMULGATED OCTOBER 13, 1952. FURTHERMORE, IT GENERALLY IS NOT PROPER FOR THE ACCOUNTING OFFICERS TO SETTLE A CLAIM AGAINST THE GOVERNMENT WHERE THE CLAIMANT IS PROSECUTING THE SAME CLAIM IN THE COURTS. B COMP. DEC. 841, AND COMPARE 11 COMP. DEC. 524, 527.

MOREOVER, EVEN IF LIEUTENANT COLONEL VON GEHR'S ATTORNEY SHOULD FILE A MOTION TO DISMISS THE COURT OF CLAIMS SUIT WITH A VIEW TO HAVING SUCH MOTION HELD IN ESCROW PENDING CLAIMS ACTION BY THIS OFFICE--- AS HAS BEEN DONE IN SOME CASES--- THE CLAIM FOR THE DIFFERENCE IN PAY COVERED BY THE SUBMITTED VOUCHER COULD NOT BE ALLOWED FOR REASONS WHICH FOLLOW.

WHILE THE CORRECTION OF RECORDS MADE UNDER AUTHORITY OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT, AS AMENDED, REQUIRES THAT WILLIAM A. W. VON GEHR "BE HELD AND CONSIDERED TO HAVE BEEN PROMOTED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT COLONEL, EFFECTIVE 1 JANUARY 6," SUCH "PROMOTION" DOES NOT, BY ITSELF, CARRY WITH IT A RIGHT TO RETIRED PAY BASED ON THE PAY OF A LIEUTENANT COLONEL. RETIRED PAY AS A LIEUTENANT COLONEL WOULD BE PAYABLE TO THE OFFICER FOR THE PERIOD FROM JANUARY 1, 1946, THROUGH JUNE 28, 1948, HAD HE BEEN PROMOTED ON THE RETIRED LIST UNDER SECTION 4 OF THE ACT OF JUNE 29, 1943, 57 STAT. 249, 10 U.S.C. 985C, WHICH PROVIDES AS FOLLOWS:

ANY OFFICER OF THE REGULAR ARMY ON THE RETIRED LIST WHO SHALL HAVE BEEN PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS ADDITIONAL PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE, BE PROMOTED ON THE RETIRED LIST TO SUCH HIGHER GRADE AND RECEIVE RETIRED PAY COMPUTED AS OTHERWISE PROVIDED BY LAW FOR OFFICERS OF SUCH HIGHER GRADE: PROVIDED, THAT THE SECRETARY OF THE ARMY, OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE, SHALL FIND THAT THE ADDITIONAL PHYSICAL DISABILITY IS INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER GRADE AND NOT LESS THAN 30 PERCENTUM PERMANENT. ( ITALICS SUPPLIED.)

IT WILL BE SEEN THAT SUCH SECTION PROVIDES FOR PROMOTION AND INCREASED PAY ONLY IF THE SECRETARY OF THE ARMY, OR HIS DESIGNEE, FINDS THAT THE RETIRED OFFICER, WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER GRADE, INCURRED ADDITIONAL PHYSICAL DISABILITY INCIDENT TO SERVICE WHILE ON ACTIVE DUTY IN THE HIGHER GRADE AND THAT SUCH ADDITIONAL PHYSICAL DISABILITY IS "NOT LESS THAN 30 PERCENTUM PERMANENT.' HOWEVER, THE RECORD RESPECTING THE SUBJECT OFFICER, BOTH BEFORE AND AFTER THE ABOVE-MENTIONED CORRECTION OF RECORDS, SHOWS THAT HE APPEARED BEFORE AN ARMY RETIRING BOARD ON JULY 10, 1945, AND WAS FOUND TO BE PHYSICALLY INCAPACITATED FROM FULL MILITARY SERVICE, BUT THAT HE HAD INCURRED NO ADDITIONAL, OR AGGRAVATION OF PRIOR, PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY IN A HIGHER TEMPORARY GRADE WITHIN THE MEANING OF THE SAID SECTION 4.

IT SEEMS APPROPRIATE TO ADD THAT THE RECORD SHOWS THAT THE APPROVED RECOMMENDATIONS OF THE ARMY BOARD ON THE CORRECTION OF MILITARY RECORDS IN THIS CASE ARE NOT BASED ON A FINDING THAT THE SUBJECT OFFICER SUFFERED ADDITIONAL PHYSICAL DISABILITY INCIDENT TO THE SERVICE, WHILE ON ACTIVE DUTY IN THE GRADE OF LIEUTENANT COLONEL, OF NOT LESS THAN 30 PERCENTUM PERMANENT BUT RESTS SOLELY UPON A FINDING THAT THE ADDITIONAL PHYSICAL DISABILITY SO INCURRED CONSTITUTES 30 PERCENTUM OF THE ,AGGREGATE PERMANENT DISABILITY" EXISTING AT THE TIME THE OFFICER WAS RELEASED FROM ACTIVE SERVICE ON DECEMBER 31, 1945. SUCH ACTION APPEARS TO HAVE BEEN BASED ON THE VIEWS EXPRESSED IN AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED SEPTEMBER 16, 1946, CONCERNING THE METHOD OF COMPUTING PERCENTAGE OF DISABILITY UNDER SAID SECTION 4 OF THE ACT OF JUNE 29, 1943, HOLDING IN EFFECT THAT SUCH STATUTE DOES NOT REQUIRE THE EXISTENCE OF AN ADDITIONAL PERMANENT DISABILITY OF 30 PERCENTUM OF TOTAL OR 100 PERCENTUM DISABILITY, BUT ONLY THAT SUCH ADDITIONAL PHYSICAL DISABILITY BE NOT LESS THAN 30 PERCENTUM OF THE OFFICER'S AGGREGATE PERMANENT DISABILITY. UNDER THAT INTERPRETATION, THE AGGREGATE DISABILITY MIGHT BE ONLY 10 PERCENTUM, IN WHICH CASE THE ADDITIONAL DISABILITY INCURRED WHILE SERVING IN THE HIGHER GRADE NEED BY ONLY 3 PERCENTUM, INSTEAD OF THE 30 PERCENTUM SPECIFIED IN THE STATUTE. IT IS THE VIEW OF THIS OFFICE THAT SUCH OPINION IS CONTRARY TO THE PLAIN LANGUAGE OF THE STATUTE. IN THE PRESENT CASE, THERE IS NO SHOWING AND THE RECORDS HAVE NOT BEEN CORRECTED TO SHOW, THAT THE OFFICER SUFFERED ADDITIONAL DISABILITY OF 30 PERCENTUM OF 100 PERCENTUM PERMANENT DISABILITY WHILE SERVING AS LIEUTENANT COLONEL. THE CONTRARY, THE INFERENCE IS PLAIN FROM THE CORRECTION BOARD'S FINDINGS THAT SUCH WAS NOT THE CASE.