B-129458, JANUARY 31, 1957, 36 COMP. GEN. 552

B-129458, JANUARY 31, 1957, 36 COMP. GEN. 552

MILITARY PERSONNEL - CORRECTION OF MILITARY RECORDS - DISABILITY RETIRED PAY ELECTIONS - TIMELY ELECTIONS THE RULE STATED IN 34 COMP. GEN. 646, JUNE 2, 1955, THAT MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS IS CHANGED TO PLACE THEM RETROACTIVELY WITHIN THE DISABILITY RETIRED PAY ELECTION PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, ARE ENTITLED TO EXERCISE THE ELECTION, REGARDLESS OF WHETHER THE CHANGE IS MADE PRIOR OR SUBSEQUENT TO OCTOBER 1, 1954--- THE EXPIRATION DATE FOR FILING ELECTIONS--- PROVIDING THE ELECTION IS MADE WITHIN A REASONABLE TIME AFTER THE RIGHT ACCRUES, IS NOT AFFECTED BY THE EXPRESS REPEAL OF SECTION 411 IN 70A STAT. 680. A RIGHT TO RECEIVE INCREASED DISABILITY RETIRED PAY BENEFITS UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, IN ADDITION TO BENEFITS RESULTING FROM THE CORRECTION OF A MEMBER'S MILITARY RECORD, DOES NOT DEPEND SOLELY ON THE RECORD CORRECTION BUT ON SOME FURTHER ACTION ON THE PART OF THE MEMBER, AND, THEREFORE, THE ACCEPTANCE OF PAYMENT AS A RESULT OF THE RECORD CORRECTION DOES NOT BAR THE MEMBER FROM A SUBSEQUENT ELECTION TO RECEIVE RETIRED PAY UNDER SECTION 411. ALTHOUGH WHAT CONSTITUTES A REASONABLE TIME FOR DISABILITY RETIRED PAY ELECTIONS IDENTICAL TO THOSE WHICH WERE AUTHORIZED BY SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, DURING THE PERIOD ENDING OCTOBER 1, 1954, IN CORRECTION OF MILITARY RECORD CASES DEPENDS ON THE CIRCUMSTANCES OF EACH CASE, THE GENERAL ACCOUNTING OFFICE WILL NOT CONSIDER AS REASONABLE ANY PERIOD IN EXCESS OF SIX MONTHS AFTER JUNE 2, 1955, THE DATE OF DECISION OF 34 COMP. GEN. 646, OR AFTER THE DATE OF RECEIPT OF THE NOTICE OF THE RECORD CORRECTION, WHICHEVER MAY BE LATER. ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES WHOSE RECORDS WERE CORRECTED TO PLACE HIM RETROACTIVELY WITHIN THE DISABILITY RETIRED PAY ELECTION PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, HAS A REASONABLE TIME AFTER NOTICE OF THE CORRECTION OR AFTER JUNE 2, 1955--- THE DATE OF DECISION OF 34 COMP. GEN. 646, WHICH PERMITTED THE EXERCISE OF PAY ELECTIONS IN SUCH CASES--- TO MAKE AN ELECTION IDENTICAL TO THAT AUTHORIZED BY SECTION 411, AN OFFICER WHO RECEIVED NOTICE OF THE RECORD CORRECTION NOT LATER THAN NOVEMBER 4, 1954, BUT WHO DID NOT MAKE AN ELECTION UNTIL MORE THAN TEN MONTHS AFTER JUNE 2, 1955, DID NOT MAKE AN ELECTION WITHIN A REASONABLE TIME.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, JANUARY 31, 1957:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1956, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, INCLUDED AMONG THE ENCLOSURES WITH YOUR LETTER, STATED IN FAVOR OF CAPTAIN SUMNER E. LOCKE, UNITED STATES AIR FORCE, RETIRED, FOR ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1949, TO MAY 31, 1956.

IT APPEARS THAT AS A RESULT OF A CORRECTION OF HIS MILITARY RECORDS, ON RECOMMENDATION APPROVED JULY 22, 1954, CAPTAIN LOCKE WAS PLACED ON THE DISABILITY RETIRED LIST WITH THE RIGHT TO RETIRED PAY FROM APRIL 14, 1946, TO OCTOBER 31, 1954, COMPUTED ON ACTIVE-DUTY PAY PRESCRIBED IN SECTION 1 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, 37 U.S.C. 101. PRESUMABLY, HE SINCE HAS BEEN PAID SUCH PAY FOR THE PERIOD NOVEMBER 1, 1954, TO MAY 31, 1956.

IT IS STATED THAT ADMINISTRATIVE ACTION TO EFFECT CERTIFICATION OF CAPTAIN LOCKE'S RETIRED PAY ACCOUNT WAS NOT ACCOMPLISHED BY OCTOBER 1, 1954, THE EXPIRATION DATE OF THE PERIOD DURING WHICH ELECTIONS WERE AUTHORIZED BY SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 281. YOUR LETTER REFERS TO OUR DECISION OF JUNE 2, 1955, B 122602, 34 COMP. GEN. 646, AND STATES THAT CAPTAIN LOCKE "SUBSEQUENTLY" WAS OFFERED AN OPPORTUNITY TO ELECT TO RECEIVE RETIRED PAY UNDER SECTION 411 AND THAT, BASED ON SUCH ELECTION, THE AMOUNT STATED ON THE VOUCHER WOULD BE DUE.

YOUR LETTER INDICATES THAT YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT ON THE VOUCHER MAY ARISE BECAUSE CAPTAIN LOCKE HAS ACCEPTED A PAYMENT BASED ON THE CORRECTION OF HIS RECORDS, AND SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C), PROVIDES, IN REGARD TO THE EFFECT OF SUCH PAYMENTS, 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. ( ITALICS SUPPLIED.)

WHILE A PERSON'S ACCEPTANCE OF A SETTLEMENT BASED ON THE CORRECTION OF HIS RECORDS GENERALLY PRECLUDES HIM FROM SUBSEQUENTLY ASSERTING ANY FURTHER CLAIM BASED UPON SUCH CORRECTION, WE DO NOT VIEW THE ACCEPTANCE OF SUCH A SETTLEMENT AS BARRING THE ACCEPTER'S RIGHT TO BENEFITS IN ADDITION TO THOSE RESULTING FROM THE CORRECTION IN A CASE WHERE THE RIGHT TO SUCH ADDITIONAL BENEFITS DEPENDS NOT SOLELY ON THE CORRECTION BUT ON SOME FURTHER ACTION SUCH AS THE EXERCISE OF AN OPTION OR AN ELECTION.

ON THE BASIS OUTLINED ABOVE, THE ACCEPTANCE OF A PAYMENT MADE AS A RESULT OF THE CORRECTION OF A PERSON'S RECORDS WOULD NOT OF ITSELF BAR HIM FROM A SUBSEQUENT ELECTION TO RECEIVE PAY UNDER ONE OF THE OPTIONS SET FORTH IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. SEE OUR DECISION TO YOU OF TODAY, B-129456, 36 COMP. GEN. 547, ON THE CASE OF FIRST LIEUTENANT EUGENE H. AKERS. THE QUESTION, THEN, IS NOT WHETHER CAPTAIN LOCKE COULD HAVE MADE AN ELECTION OF THE TYPE CONTEMPLATED BY SECTION 411 AFTER ACCEPTANCE OF THE PAYMENT RESULTING FROM THE CORRECTION OF HIS RECORDS BUT WHETHER HE MADE SUCH AN ELECTION WITHIN THE TIME AUTHORIZED FOR MAKING IT.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823--- REPEALED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 680--- PROVIDED, IN PERTINENT PART, THAT:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED SECTION 511 OF THIS ACT * * *.

IN THE ABOVE DECISION OF JUNE 2, 1955, THERE WAS CONSIDERED THE CASE OF AN OFFICER WHOSE RECORDS WERE CORRECTED ON AUGUST 13, 1954, SO AS TO GIVE HIM THE RIGHT TO RETIRED PAY FROM JULY 21, 1946, BUT WHO WAS NOT NOTIFIED OF THE CORRECTION IN SUFFICIENT TIME TO AFFORD HIM AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411 BEFORE THE EXPIRATION DATE ( OCTOBER 1, 1954) OF THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION. IT WAS HELD IN THE DECISION THAT MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS IS CHANGED IN ACCORDANCE WITH APPLICABLE LAWS SO AS TO PLACE THEM RETROACTIVELY WITHIN THE PURVIEW OF SECTION 411 ARE ENTITLED TO EXERCISE THE ELECTION PROVIDED FOR IN THAT SECTION REGARDLESS OF WHETHER THE CHANGE IN STATUS WAS MADE PRIOR OR SUBSEQUENT TO OCTOBER 1, 1954, PROVIDED THE ELECTION IS MADE WITHIN A REASONABLE TIME AFTER THE RIGHT TO MAKE IT FIRST ACCRUES. THE AUTHORIZING OF ELECTIONS AFTER OCTOBER 1, 1954, WAS BASED ON THE PRINCIPLE THAT A CORRECTION OF RECORDS SHOULD PLACE AN INDIVIDUAL, AS NEARLY AS POSSIBLE, IN THE FINANCIAL POSITION WHICH HE WOULD HAVE OCCUPIED IF HIS RECORDS ORIGINALLY HAD REFLECTED THE FACTS SUBSEQUENTLY SHOWN IN HIS CORRECTED RECORDS; AND, HENCE, THAT AN INDIVIDUAL WHOSE RECORDS WERE CORRECTED SO AS TO GIVE HIM A RIGHT TO DISABILITY RETIRED PAY FROM A DATE PRIOR TO OCTOBER 1, 1949, SHOULD BE ALLOWED, WITHIN A REASONABLE TIME, TO MAKE THE ELECTION WHICH HE WOULD HAVE HAD THE RIGHT TO MAKE HAD HE ACTUALLY BEEN RETIRED ON SUCH PRIOR DATE. OBVIOUSLY, THE RULE ESTABLISHED IN THE DECISION OF JUNE 2, 1955, WAS NOT ADOPTED ON THE BASIS THAT SECTION 411 THEN WAS IN EFFECT. IT WAS ADOPTED ON THE BASIS OF WHAT NORMALLY WOULD HAVE HAPPENED DURING THE PERIOD OF THE EFFECTIVENESS OF SECTION 411 IN A CASE INVOLVING A DISABILITY RETIREMENT WHICH TOOK PLACE PRIOR TO OCTOBER 1, 1949. HENCE, THE EXPRESS REPEAL OF THE SECTION DOES NOT CHANGE THE RULE LAID DOWN IN THAT DECISION.

IN THE SPECIFIC CASE CONSIDERED IN THE DECISION OF JUNE 2, 1955, THE OFFICER HAD NOT BEEN INFORMED OF THE CORRECTION OF HIS RECORDS IN TIME FOR HIM TO MAKE AN ELECTION, UNDER SECTION 411, BY OCTOBER 1, 1954. HE WOULD NOT HAVE BEEN ALLOWED TO MAKE AN ELECTION BETWEEN THAT DATE AND JUNE 2, 1955, THE DATE OF THE DECISION FIRST AUTHORIZING AN ELECTION AFTER OCTOBER 1, 1954. ACCORDINGLY, IT WAS CONCLUDED THAT HE NEVER ACTUALLY HAD AN OPPORTUNITY TO ELECT PRIOR TO JUNE 2, 1955, AND THAT HE SHOULD BE ALLOWED A REASONABLE TIME AFTER THAT DATE TO DO SO.

IN THE PRESENT CASE, THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS ADVISED CAPTAIN LOCKE ON JULY 23, 1954, AS FOLLOWS:

A REVIEW OF YOUR CASE HAS BEEN HELD IN ACCORDANCE WITH THE REGULATIONS GOVERNING THE PROCEDURES OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS.

IT IS THE BOARD'S DECISION THAT YOUR MILITARY RECORDS BE CORRECTED AS SET FORTH IN THE ENCLOSED COPY OF A DIRECTIVE TO THE CHIEF OF STAFF, UNITED STATES AIR FORCE, SIGNED BY THE UNDER SECRETARY OF THE AIR FORCE.

YOU WILL BE INFORMED WHEN ALL OF YOUR PERTINENT MILITARY RECORDS HAVE BEEN CORRECTED TO REFLECT THIS CHANGE.

A COPY OF THIS LETTER WITH A COPY OF THE DIRECTIVE HAS BEEN FORWARDED YOUR COUNSEL, THE AMERICAN LEGION.

ON NOVEMBER 4, 1954, HEADQUARTERS, UNITED STATES AIR FORCE, ADVISED CAPTAIN LOCKE AS FOLLOWS:

1. REFERENCE IS MADE TO LETTER DATED 23 JULY 1954 FROM THE EXECUTIVE SECRETARY OF THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS, ADVISING YOU THAT YOUR APPLICATION HAD RECEIVED FAVORABLE CONSIDERATION.

2. YOU ARE ADVISED THAT ALL PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE HAVE BEEN CORRECTED TO SHOW THAT YOUR NAME WAS PLACED ON THE USAF RETIRED LIST, DUE TO PHYSICAL DISABILITY EFFECTIVE 14 APRIL 1946.

3. INCLOSED ARE D D FORM 215 ( CORRECTION TO REPORT OF SEPARATION) AND DD FORM 363 AF ( CERTIFICATE OF RETIREMENT). THE DD FORM 215 SHOULD BE ATTACHED TO YOUR ORIGINAL REPORT OF SEPARATION TO REFLECT THE CORRECTION. ALL COMMANDS CONCERNED HAVE BEEN ADVISED OF THIS ACTION.

4. THE FOREGOING ACTION IS BASED ON THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS ( SECTION 207, PUBLIC LAW 601, 79TH CONGRESS AS AMENDED BY PUBLIC LAW 220, 82D CONGRESS) WHICH RECOMMENDATIONS WERE APPROVED BY THE ASSISTANT SECRETARY OF THE AIR FORCE 22 JULY 1954.

5. A RETIRED IDENTIFICATION CARD WILL BE FURNISHED YOU UNDER SEPARATE COVER.

ON FEBRUARY 17, 1955, CAPTAIN LOCKE ADVISED THE AIR FORCE FINANCE CENTER, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1955, A COPY OF WHICH IS ENCLOSED. THERE APPEARS TO BE SMALL ERROR IN THE SUBTRACTION OF VETERANS ADMINISTRATION BENEFITS FROM RETIRED PAY TO WHICH I CALL YOUR ATTENTION. THIS TWO DOLLAR DISCREPANCY IS TRIVIAL AND I REFER TO IT ONLY FOR THE ACCURACY OF THE RECORD. IN ORDER TO EXPEDITE THE SETTLEMENT OF THIS CLAIM I HAVE TAKEN THE LIBERTY OF DRAFTING AND EXECUTING TWO CLAIMS CERTIFICATES IN WHICH I HAVE SET FORTH WHAT I BELIEVE TO BE AN ACCURATE FIGURE.

IT IS MY IMPRESSION THAT THE AIR FORCE MAY SUBSEQUENTLY ALLOW ME TO ELECT RETIREMENT UNDER SECTION 411, PL 351, 81ST CONGRESS. IF THE AIR FORCE ALLOWS ME TO LATER ELECT AN OPTION BETWEEN PL 351 OR PL 18, THEN IT IS MY UNDERSTANDING BY EXECUTING THE ENCLOSED CLAIM CERTIFICATES, DATED FEBRUARY 15, 1955, IN THE AMOUNT OF $5,685.23 THAT I AM NEITHER LEGALLY OR EQUITABLY ESTOPPED FROM CLAIMING OR RECEIVING ANY ADDITIONAL BENEFITS WHICH MAY ACCRUE TO ME BY SUCH OPTION IF OFFERED AND ELECTION MADE UNDER PL 351.

THE ABOVE LETTER INDICATED THAT CAPTAIN LOCKE HOPED TO BE GIVEN AN OPPORTUNITY TO ELECT UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. IT WAS NOT, HOWEVER, AN ELECTION OF THE TYPE DESCRIBED IN THAT SECTION.

ON APRIL 9, 1956, THE DISABILITY SEPARATION BRANCH, DEPARTMENT OF THE AIR FORCE, ADVISED CAPTAIN LOCKE THAT HE WAS ENTITLED TO ELECT TO RECEIVE RETIRED PAY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. APRIL 19, 1956, HE PURPORTEDLY ELECTED TO RECEIVE SUCH PAY ON AND AFTER OCTOBER 1, 1949, COMPUTED ON THE PERCENTAGE OF HIS DISABILITY, THE BASIS FOR THE PRESENT VOUCHER.

WHILE IT MIGHT BE CONTENDED THAT THE COMMUNICATION OF JULY 23, 1954, WAS NOT ADEQUATE NOTICE TO CAPTAIN LOCKE THAT HIS RECORDS HAD BEEN CORRECTED, HE CLEARLY HAD SUCH NOTICE NOT LATER THAN THE DATE HE RECEIVED THE LETTER OF NOVEMBER 4, 1954. AT THAT TIME THE PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 FOR THE MAKING OF ELECTIONS UNDER THAT SECTION HAD EXPIRED. HOWEVER, UNDER THE RULE SET FORTH IN DECISION OF JUNE 2, 1955, 34 COMP. GEN. 646, WE WILL CONSIDER THAT CAPTAIN LOCKE HAD A REASONABLE TIME AFTER JUNE 2, 1955, IN WHICH TO MAKE AN ELECTION IDENTICAL WITH THAT WHICH HAD BEEN AUTHORIZED BY SECTION 411 DURING THE PERIOD ENDING OCTOBER 1, 1954.

WHAT WOULD CONSTITUTE A REASONABLE TIME AFTER JUNE 2, 1955, WITHIN THE CONTEMPLATION OF OUR DECISION OF THAT DATE WOULD DEPEND, OF COURSE, UPON THE CIRCUMSTANCES IN THE PARTICULAR CASE. HOWEVER, WE TAKE THE VIEW THAT WE WOULD NOT BE JUSTIFIED IN CONSIDERING AS REASONABLE IN THAT RESPECT ANY PERIOD IN EXCESS OF SIX MONTHS AFTER JUNE 2, 1955, OR AFTER THE DATE OF RECEIPT OF THE NOTICE OF THE CORRECTION OF RECORD WHICHEVER MAY BE LATER. CAPTAIN LOCKE ATTEMPTED TO EXERCISE AN ELECTION ON APRIL 19, 1956, MORE THAN TEN MONTHS AFTER JUNE 2, 1955. IT FOLLOWS THAT HE DID NOT MAKE AN ELECTION WITHIN A REASONABLE TIME AFTER THE LATTER DATE. SEE OUR DECISION TO YOU OF TODAY, B-129456, ON THE SIMILAR CASE OF FIRST LIEUTENANT EUGENE H. AKERS.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED ON THE PRESENT RECORD. THIS ACTION WOULD NOT PRECLUDE A FURTHER CORRECTION OF THE OFFICER'S RECORDS TO SHOW THAT HE MADE AN ELECTION WITHIN SIX MONTHS AFTER JUNE 2, 1955. COMPARE 35 COMP. GEN. 643.