B-128594, SEP. 21, 1965

B-128594, SEP. 21, 1965

TO MR. ELMER CARL WOODWARD:

REFERENCE IS MADE TO THE LETTER OF JULY 26, 1965, FROM YOUR ATTORNEY, REQUESTING FURTHER RECONSIDERATION OF YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, THROUGH APRIL 30, 1950, BASED ON THE DECISION IN THE CASE OF SELIGA V. UNITED STATES, 137 CT.CL. 710 (1957), AND REQUESTING THAT OUR OFFICE INSTRUCT THE DEPARTMENT OF THE NAVY TO ADJUST YOUR RETIRED PAY ON THE SAME BASIS FOR THE PERIOD SUBSEQUENT TO NOVEMBER 30, 1964.

BY LETTER OF JUNE 22, 1965, B-128594, WE EXPLAINED TO YOU THAT UNTIL IT IS ESTABLISHED THAT THE DISABILITY FOR WHICH YOU WERE RETIRED WAS INCURRED WHILE YOU WERE IN RECEIPT OF ACTIVE DUTY PAY SUCH DISABILITY DOES NOT ENTITLE YOU TO PAYMENT OF RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, WHICH WAS THE BASIS FOR THE ADJUSTMENT IN THE SELIGA CASE.

YOUR ATTORNEY NOW CONTENDS THAT THE OFFICIAL REPORT FROM THE DEPARTMENT OF THE NAVY, BUREAU OF MEDICINE AND SURGERY, FURNISHED BY DIRECTION OF THE SURGEON GENERAL UNDER DATE OF JUNE 28, 1963, CONCLUDING THAT YOUR DISABILITY WAS NOT INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY IS ERRONEOUS. THAT REPORT, HOWEVER, WAS MADE AFTER A THOROUGH STUDY OF YOUR MEDICAL HISTORY, INCLUDING AN EARLIER REPORT AND THE BASIS ON WHICH THE EARLIER REPORT WAS MADE. OUR OFFICE DOES NOT HAVE AUTHORITY TO MAKE ANY DETERMINATION OF FACTS WITH RESPECT TO A MEMBER'S DISABILITY AND IN THE EVENT OF A CONFLICT BETWEEN THE STATEMENTS OF FACT MADE BY A CLAIMANT AND THOSE MADE BY THE ADMINISTRATIVE OFFICE, SUCH AS ARE PRESENTED IN THIS CASE, WE ARE BOUND BY THE OFFICIAL REPORT OF THE ADMINISTRATIVE OFFICE. SEE 13 COMP. GEN. 927, 929 AND 16 COMP. GEN. 325, 329.

THE LETTER OF JULY 26, 1965, CONTAINS NO NEW EVIDENCE WHICH WAS NOT PREVIOUSLY CONSIDERED. THEREFORE, THE ACTION TAKEN IN OUR DECISION OF JUNE 22, 1965, IS ADHERED TO.

WITH RESPECT TO THE REQUEST THAT WE INSTRUCT THE DEPARTMENT OF THE NAVY TO ADJUST YOUR RETIRED PAY SUBSEQUENT TO NOVEMBER 30, 1964, YOU ARE ADVISED THAT THE SAME REASONS WHICH PREVENT YOUR ENTITLEMENT TO THE ADJUSTMENT FOR THE PERIOD OCTOBER 1, 1949, TO APRIL 30, 1950, ALSO PREVENT YOUR ENTITLEMENT TO THE ADJUSTMENT FOR THE LATER PERIOD. THE FACT THAT YOU OBTAINED A JUDGMENT IN THE COURT OF CLAIMS FOR THE ADJUSTMENT IN QUESTION COVERING THE PERIOD MAY 1, 1950, TO NOVEMBER 30, 1964, GIVES YOU NO ADDITIONAL RIGHT SINCE THE JUDGMENT WAS ENTERED SOLELY ON THE BASIS OF AN ADMISSION OF LIABILITY, THE COURT HAVING MADE NO DETERMINATION AS TO THE MERITS OF YOUR CLAIM. SEE 41 COMP. GEN. 283.