B-121445, MARCH 21, 1955, 34 COMP. GEN. 456

B-121445, MARCH 21, 1955, 34 COMP. GEN. 456

PAY - ACTIVE DUTY - BASED ON CORRECTION OF MILITARY RECORDS - ACCEPTANCE OF RETIRED PAY AS PRECLUDING OTHER CLAIMS THE ACCEPTANCE BY A FORMER ARMY RESERVE OFFICER OF SETTLEMENT OF HIS CLAIM FOR RETROACTIVE RETIRED PAY BASED ON THE CORRECTION OF HIS MILITARY RECORD, WHICH CLAIM WAS RECEIVED, EXECUTED AND RETURNED TO THE ADMINISTRATIVE OFFICE CONCURRENTLY WITH A CLAIM FOR ACTIVE-DUTY PAY ARISING OUT OF THE SAME RECORD CORRECTION ACTION, DOES NOT CONSTITUTE A "COMPLETE RELEASE" OF ALL CLAIMS AS CONTEMPLATED BY SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 SO AS TO PRECLUDE PAYMENT OF HIS CLAIM FOR ACTIVE-DUTY PAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT V. E. OVERTURF, DEPARTMENT OF THE ARMY, MARCH 21, 1955:

BY FIRST ENDORSEMENT DATED SEPTEMBER 14, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF AUGUST 30, 1954, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYING A VOUCHER STATED IN FAVOR OF ROBERT L. FIES FOR $402.38 (LESS AMOUNT WITHHELD FOR TAX) REPRESENTING ACTIVE-DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM SEPTEMBER 4 TO 30, 1952, AND LUMP-SUM PAYMENT FOR LEAVE ACCRUED DURING THAT PERIOD, INCIDENT TO HIS SERVICE AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES. THE PROPOSED PAYMENT IS BASED ON THE CORRECTION OF MR. FIES' MILITARY RECORDS BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A.

IT APPEARS FROM YOUR LETTER, AND ENCLOSURES, THAT MR. FIES WAS ORIGINALLY RELEASED FROM ACTIVE DUTY ON SEPTEMBER 3, 1952,"NOT BY REASON OF PHYSICAL DISABILITY," AND THAT UPON SUCH RELEASE HE WAS PAID A LUMP-SUM PAYMENT FOR 45 DAYS' ACCRUED LEAVE. THEREAFTER HE APPLIED TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS TO CORRECT HIS MILITARY RECORDS TO SHOW "FACTS" TO SUPPORT HIS ENTITLEMENT TO DISABILITY-RETIREMENT PAY FROM SEPTEMBER 3, 1952. ON JUNE 23, 1953, THE BOARD ISSUED ITS FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AND ON JUNE 29, 1953, THE SECRETARY OF THE ARMY ISSUED A MEMORANDUM FOR THE ADJUTANT GENERAL STATING THAT HE HAD RECEIVED AND APPROVED SUCH FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, AND DIRECTING THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF ROBERT L. FIES BE CORRECTED TO SHOW THAT MR. FIES BECAME PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK OR GRADE BY REASON OF PHYSICAL DISABILITY INCURRED WHILE HE WAS ENTITLED TO RECEIVE BASIC PAY AS A MEMBER OF A RESERVE COMPONENT ON EXTENDED ACTIVE DUTY; THAT SUCH PHYSICAL DISABILITY HAD ITS ORIGIN ON NOVEMBER 17, 1951, AS A RESULT OF AN INCIDENT OF THE SERVICE; THAT IT WAS INCURRED IN LINE OF DUTY; AND THAT THE DISABILITY IS PERMANENT. THE SECRETARY FURTHER DIRECTED THAT THE ARMY RECORDS BE CORRECTED TO SHOW THAT MR. FIES WAS RETAINED ON ACTIVE DUTY FROM SEPTEMBER 4 TO 30, 1952; THAT HE WAS RELIEVED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY ON SEPTEMBER 30, 1952, AND PLACED ON THE PERMANENT RETIRED LIST IN THE GRADE OF FIRST LIEUTENANT, EFFECTIVE AS OF SEPTEMBER 30, 1952, WITH ENTITLEMENT TO RETIREMENT PAY FROM OCTOBER 1, 1952, UNDER THE PROVISIONS OF SECTION 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 823.

YOU STATE THAT ON NOVEMBER 27, 1953, THE FINANCE CENTER, U.S. ARMY, FORWARDED TO MR. FIES A CLAIMS CERTIFICATE COVERING RETIREMENT PAY FROM OCTOBER 1, 1952, TO OCTOBER 31, 1953, IN THE AMOUNT OF $2,138.63, AND AN FC USA FORM 3-137 ON WHICH TO MAKE CLAIM FOR ACTIVE-DUTY PAY AND ALLOWANCES FROM SEPTEMBER 4 TO 30, 1952, AND THAT THE CLAIMS CERTIFICATE CONTAINED THE STATEMENT " I * * * DO AGREE THAT ACCEPTANCE OF THIS SETTLEMENT SHALL CONSTITUTE COMPLETE RELEASE BY ME OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF MY MILITARY RECORDS.' YOU FURTHER STATE THAT BOTH CLAIMS WERE EXECUTED BY THE CLAIMANT AND RETURNED TO THE FINANCE CENTER, U.S. ARMY, AND THAT PAYMENT OF THE RETIREMENT PAY HAS BEEN MADE, BUT THAT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES HAS BEEN DENIED. THE ACTIVE-DUTY PAY WAS DENIED BECAUSE OF THE CLAIMANT'S ACCEPTANCE OF THE SETTLEMENT (COVERING THE RETIREMENT PAY) AND BECAUSE HE WAS CONSIDERED TO HAVE BEEN ON LEAVE DURING THE PERIOD SEPTEMBER 4 TO 30, 1952, AND TO HAVE BEEN COMPENSATED FOR ACCRUED LEAVE AT TIME OF SEPARATION. THE QUESTIONS ON WHICH DECISION IS REQUESTED ARE STATED IN YOUR LETTER AS FOLLOWS:

(1) IN VIEW OF THE PROVISIONS OF SECTION 207 (C), LEGISLATIVE REORGANIZATION ACT OF 1946 AS AMENDED BY THE ACT OF 25 OCTOBER 1951, DOES ACCEPTANCE OF CHECK IN THE AMOUNT OF $2,138.63 CONSTITUTE A RELEASE BY ROBERT L. FIES OF ANY FURTHER CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF THE CORRECTION OF HIS MILITARY RECORDS? (2) WAS THIS OFFICE CORRECT IN CONSIDERING THAT THE OFFICER WAS ON LEAVE AWAITING RETIREMENT DURING THE PERIOD 4 SEPTEMBER 1952 THRU 30 SEPTEMBER 1952 AND IN DENYING PAYMENT FOR THAT PERIOD, INASMUCH AS HE HAD BEEN COMPENSATED FOR 45 DAYS' ACCRUED LEAVE? (3) IN THE EVENT QUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE, MAY PAYMENT BE MADE ON THE ENCLOSED VOUCHER WHICH HAS BEEN COMPUTED TO SHOW THE AMOUNT OF PAY AND ALLOWANCES FOR THE PERIOD 4 SEPTEMBER 1952 THRU 30 SEPTEMBER 1952?

SINCE MR. FIES' MILITARY RECORDS NOW HAVE BEEN CORRECTED, UNDER AUTHORITY GRANTED BY SECTION 207 (A) OF THE CITED 1946 ACT, AS AMENDED, TO SHOW THAT HE WAS "RETAINED ON ACTIVE DUTY FROM 4 TO 30 SEPTEMBER 1952 INCLUSIVE," AND SINCE THE STATUTE MAKES SUCH CORRECTIONS FINAL AND CONCLUSIVE, IN THE ABSENCE OF FRAUD, HE MUST BE CONSIDERED TO HAVE BEEN IN AN ACTIVE-DUTY STATUS (AS DISTINGUISHED FROM A LEAVE STATUS OR INACTIVE-DUTY STATUS) THROUGH SEPTEMBER 30, 1952. CONSEQUENTLY, UNLESS HIS RIGHT TO ACTIVE-DUTY PAY WAS AFFECTED BY HIS SIGNATURE OF THE CLAIMS CERTIFICATE AND ACCEPTANCE OF THE PAYMENT COVERING RETIRED PAY, HE IS ENTITLED TO PAYMENT OF ACTIVE- DUTY PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 4 TO 30, 1952, AND TO A LUMP-SUM PAYMENT FOR ANY UNUSED ACCRUED LEAVE TO HIS CREDIT ON SEPTEMBER 30, 1952, FOR WHICH HE HAS NOT BEEN PAID.

SECTION 207 (C) OF THE CITED LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C), PROVIDES, WITH RESPECT TO THE EFFECT OF PAYMENTS BASED ON CORRECTIONS OF MILITARY RECORDS AUTHORIZED BY THAT ACT, THAT---

THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.

IN A DECISION OF OCTOBER 18, 1954, 34 COMP. GEN. 188, IT WAS HELD THAT THE FORMER OFFICER THERE INVOLVED, HAVING SIGNED A CERTIFICATE STATING THAT ACCEPTANCE OF THE AMOUNT SHOWN IN THE CERTIFICATE WOULD CONSTITUTE A COMPLETE RELEASE OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF HIS MILITARY RECORDS, AND HAVING ACCEPTED PAYMENT OF SUCH AMOUNT, WAS NOT ENTITLED TO A FURTHER AMOUNT WHICH OTHERWISE WOULD HAVE BEEN DUE ON THE BASIS OF SUCH CORRECTION. HOWEVER, IN THE PRESENT CASE IT APPEARS THAT THE CLAIMS CERTIFICATE SETTING FORTH THE AMOUNT DUE MR. FIES AS RETROACTIVE RETIRED PAY ($2,138.63) WAS SENT TO HIM WITH A FORM WHICH HE EXECUTED FOR THE PURPOSE OF CLAIMING ACTIVE DUTY PAY. IT FURTHER APPEARS THAT HE SIGNED BOTH THE CLAIMS CERTIFICATE AND HIS CLAIM FOR ACTIVE-DUTY PAY ON THE SAME DAY, NOVEMBER 30, 1953, AND THAT HE RETURNED THEM TO THE FINANCE CENTER AT, OR ABOUT, THE SAME TIME. IN SUCH CIRCUMSTANCES, THE ACCEPTANCE BY MR. FIES OF THE PAYMENT OF THE RETIREMENT -PAY PORTION OF THE SETTLEMENT, WHICH WAS PROCESSED SEPARATELY FROM THE REMAINDER OF THE SETTLEMENT, MAY NOT BE CONSIDERED AN ACCEPTANCE OF SETTLEMENT AS CONTEMPLATED BY THE STATUTE SO AS TO CONSTITUTE IT "A COMPLETE RELEASE" OF HIS CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF THE CORRECTION OF HIS MILITARY RECORDS. THE FACT THAT THE CLAIM FORM FOR THE ACTIVE-DUTY PAY WAS SENT TO THE OFFICER WITH THE SETTLEMENT FORM FOR THE RETIRED PAY SHOWS THAT THE RETIRED PAY WAS NOT OFFERED OR INTENDED AS A SETTLEMENT OF ALL CLAIMS BASED ON THE CORRECTION OF THE RECORDS. ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IF CORRECT IN OTHER RESPECTS.