B-135124, NOV. 5, 1959

B-135124, NOV. 5, 1959

TO FIRST LIEUTENANT JAMES H. PRESLEY, A.U.S. (RETIRED):

REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL RETIRED PAY IN THE AMOUNT OF $1,633.34 FOR THE PERIOD MAY 1, 1944, TO AUGUST 31, 1945, BASED ON A PURPORTED CORRECTION OF YOUR MILITARY RECORDS UNDER THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 65 STAT. 655, AS CODIFIED IN 10 U.S.C. 1552, WHICH CLAIM WAS FORWARDED TO THIS OFFICE BY THE UNITED STATES ARMY FINANCE CENTER.

THE RECORDS SHOW THAT EFFECTIVE APRIL 30, 1944, YOU WERE GRANTED RETIREMENT PAY AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES, UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1940 ED.), WHICH RELATED TO CERTAIN MEMBERS OF THE ARMY OF THE UNITED STATES WHO SUFFERED DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY OR DISEASE WHILE EMPLOYED ON ACTIVE DUTY. DURING THE PERIOD MAY 1, 1944, TO AUGUST 31, 1945, YOU WERE EMPLOYED AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT. THE AMOUNT OF YOUR RETIRED PAY WAS REDUCED DURING THAT PERIOD BECAUSE OF A BELIEF THAT SUCH ACTION WAS REQUIRED UNDER THE PROVISIONS OF SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A (A) (1940 ED.), PROVIDING GENERALLY, THAT RETIRED PAY SHOULD NOT BE PAID TO ANY PERSON HOLDING A FEDERAL CIVIL POSITION, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH A CIVILIAN SALARY EXCEEDED $3,000 PER ANNUM. THE DEPARTMENT OF THE ARMY REPORTS THAT $1,633.34 WAS WITHHELD FROM YOUR RETIRED PAY DURING THIS PERIOD.

ON APRIL 11, 1957, YOUR CLAIM FOR THE RETIRED PAY SO WITHHELD WAS RECEIVED IN OUR OFFICE. SINCE YOUR CLAIM ACCRUED AT THE TIME THE AMOUNTS INVOLVED WERE WITHHELD FROM YOUR RETIRED PAY AND AS NO RECORD WAS FOUND OF ANY PRIOR CLAIM FOR SUCH AMOUNTS, THE CLAIM WAS RETURNED ON MAY 15, 1957, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A. SECTION 1 OF THAT ACT PROVIDES THAT EVERY CLAIM OR DEMAND COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

SECTION 212 (B) OF THE ECONOMY ACT OF 1932, 47 STAT. 406, AS AMENDED BY THE ACT OF JULY 15, 1940, 54 STAT. 761, 5 U.S.C. 59 (B) (1940 ED.), PROVIDED THAT THE $3,000 LIMITATION OF THE ACT ,SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY.' A REPORT FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, DATED MARCH 12, 1957, INDICATES THAT THE INJURIES WHICH WERE THE BASIS FOR YOUR RETIREMENT BROUGHT YOU WITHIN THE PURVIEW OF THE ABOVE QUOTED EXCEPTION, SINCE IT WAS STATED THAT YOUR INJURIES WERE "COMBAT INCURRED OR INSTRUMENTALITY OF WAR.' WE WERE ADVISED INFORMALLY IN FEBRUARY 1958 THAT YOU WERE RETIRED BECAUSE OF A HEARING DEFECT RESULTING FROM FIRING ON A FIRING RANGE AND THAT THE DEPARTMENT OF THE ARMY CONSIDERED YOUR HEARING DEFECT TO HAVE BEEN CAUSED BY THE EXPLOSION OF AN INSTRUMENTALITY OF WAR.

ON JULY 13, 1959, THE ASSISTANT SECRETARY OF THE ARMY, ACTING UNDER AUTHORITY OF 10 U.S.C. 1552, AND BASED ON RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, DIRECTED THAT YOUR RECORDS BE CORRECTED TO SHOW THAT EFFECTIVE APRIL 29, 1944, YOU WERE CERTIFIED TO THE VETERANS ADMINISTRATION FOR RETIREMENT PAY ON THE BASIS OF A DISABILITY THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR. HE FURTHER DIRECTED THE DEPARTMENT OF THE ARMY TO PAY TO YOU, OR OTHER PROPER PERSON OR PERSONS, ALL MONEY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF MILITARY RECORDS.

10 U.S.C. 1552, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.'

IN OUR DECISION OF SEPTEMBER 11, 1959, B-137384, 39 COMP. GEN. 178, IN THE CONSIDERATION OF A SIMILAR SITUATION UNDER 10 U.S.C. 1552, WE STATED:

"UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO "CORRECT" MILITARY RECORDS AND, IT IS OUR VIEW THAT ACTION UNDER THAT SECTION, IF IT IS TO GIVE RISE TO A RIGHT TO THE PAYMENT OF MONEY, MUST, WITHOUT EXCEPTION, BE A CHANGE OF FACTS AS SET OUT IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF SOME OF, SUCH FACTS, SUCH CHANGE, ADDITION, OR DELETION BEING NECESSARY TO ESTABLISH A PROPER BASIS TO SUPPORT THE PAYMENT. AN AFFIRMATION OF FACTS ALREADY IN A MILITARY RECORD DOES NOT CONSTITUTE A CORRECTION OF THAT RECORD AND HENCE IS NOT FINAL AND CONCLUSIVE ACTION UNDER 10 U.S.C. 1552.'

PRIOR TO THE PURPORTED CORRECTION ACTION TAKEN IN THIS CASE, THIS OFFICE ACCEPTED YOUR MILITARY RECORD AS ESTABLISHING THAT YOU WERE ORIGINALLY RETIRED FOR A DISABILITY "RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR.' HENCE, YOU WERE ENTITLED TO RECEIVE FULL MILITARY RETIRED PAY WHILE EMPLOYED AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT AND THE ACTION TAKEN IN WITHHOLDING A PART OF SUCH PAY WAS ERRONEOUS. YOUR CLAIM WAS UNFAVORABLY CONSIDERED NOT BECAUSE OF A LACK OF PROOF OF THE FACT THAT YOU WERE INJURED AS A RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR BUT BECAUSE OF YOUR FAILURE TO FILE YOUR CLAIM WITHIN THE TEN YEAR PERIOD FIXED IN THE ACT OF OCTOBER 9, 1940. AS FAR AS THE MATTER OF EXEMPTION FROM THE RESTRICTIONS OF THE ECONOMY ACT IS CONCERNED, THE INFORMATION FURNISHED THIS OFFICE WITH RESPECT TO THE EXISTING RECORD SHOWS THAT YOU WERE SO EXEMPT AND THE ACTION TAKEN BY THE ASSISTANT SECRETARY OF THE ARMY ON JULY 13, 1959, DID NOT MATERIALLY CHANGE ANY OF THE FACTS SET OUT IN THE RECORD, OR ADD TO OR DELETE FROM THOSE FACTS IN ANY MANNER WHICH COULD ESTABLISH A BASIS TO SUPPORT A RIGHT TO PAYMENT WHICH YOU DID NOT PREVIOUSLY HAVE.

THE AUTHORITY OF THE SECRETARY CONCERNED, ACTING THROUGH THE BOARD FOR CORRECTION OF MILITARY RECORDS, IS LIMITED TO THE CORRECTION OF FACTUAL SITUATIONS. YOUR RIGHT TO RECEIVE A PAYMENT OF MONEY FROM THE GOVERNMENT DEPENDS UPON A PROPER APPLICATION OF PERTINENT STATUTES TO THE FACTS SHOWN IN THE CORRECTED RECORD. B-137384, SEPTEMBER 11, 1959, 39 COMP. GEN. 178; 38 ID. 208, 210; 34 ID. 7, 12. SINCE THE EXISTING RECORDS STATED THE ACTUAL FACTS AS FAR AS THE MATTER HERE INVOLVED IS CONCERNED AND THE PURPORTED CORRECTION MERELY RESTATED THE FACTS AS ALREADY ESTABLISHED, NO ADDITIONAL RIGHTS ACCRUED AS A RESULT OF SUCH CORRECTIVE ACTION AND THE BAR OF THE ACT OF OCTOBER 9, 1940, WAS NOT AVOIDED.

IN THE CIRCUMSTANCES DISCLOSED, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.