B-136477, JUL. 17, 1958

B-136477, JUL. 17, 1958

TO HONORABLE SUMNER WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

BY LETTER DATED APRIL 18, 1958, THE ACTING DIRECTOR, COMPENSATION AND PENSION SERVICE, VETERANS ADMINISTRATION, FORWARDED CORRESPONDENCE FROM THE NATIONAL ADJUTANT, DISABLED OFFICERS ASSOCIATION, RELATIVE TO AN INCREASE OF EMERGENCY OFFICERS' RETIRED PAY IN THE CASE OF MR. HAROLD R. MORRIS.

A CLAIM ON BEHALF OF MR. MORRIS, C 563 773, WAS TRANSMITTED TO THIS OFFICE BY A LETTER DATED JUNE 28, 1954, FROM THE VETERANS ADMINISTRATION. THE CLAIM WAS PREDICATED ON SECURING THE INCLUSION OF APPROXIMATELY THREE YEARS' NATIONAL GUARD SERVICE IN THE COMPUTATION OF HIS RETIRED PAY. MR. MORRIS, A FORMER OFFICER, ALLEGED THAT HE SERVED IN COMPANY "C," 3D INFANTRY, KENTUCKY NATIONAL GUARD, FROM ABOUT MARCH 8, 1907, TO ABOUT MARCH 7, 1910. IN THE ABSENCE OF STATE RECORDS, WHICH WERE PURPORTEDLY DESTROYED BY FIRE, AFFIDAVITS EXECUTED ON DECEMBER 30, 1953, AND JANUARY 6, 1954, BY MR. CARL SCHENK AND MR. IRL SCHENK, RESPECTIVELY, WERE SUBMITTED TO SUBSTANTIATE THE CLAIM.

IN OUR LETTER OF SEPTEMBER 2, 1954, TO THE CHIEF, VETERANS ACCOUNTS SECTION, VETERANS ADMINISTRATION, AS WELL AS IN OUR LETTER OF SEPTEMBER 3, 1954, TO SENATOR JOHN C. STENNIS, WE SAID THAT THE AFFIDAVITS WERE NOT SUFFICIENT, UNDER THE LONG STANDING AND UNIFORM HOLDINGS OF THIS OFFICE, TO ESTABLISH MR. MORRIS' NATIONAL GUARD SERVICE BECAUSE THEY WERE BASED UPON MEMORY ALONE MORE THAN 40 YEARS AFTER THE SERVICE, AND THEY WERE NOT SUPPORTED BY ANY CONTEMPORANEOUS STATE RECORD. ALTHOUGH A THOROUGH SEARCH WAS MADE OF THE RECORDS OF THIS OFFICE FOR THE YEARS 1907 TO 1910, WE FOUND PAYROLL ENTRIES PERTAINING TO H. R. MORRIS ONLY FOR A SUMMER ENCAMPMENT OF 10 DAYS, JULY 9 TO 18, 1907. HENCE, ON THE RECORD OF THE CASE IN SEPTEMBER 1954 WE CONCLUDED THAT MR. MORRIS WAS NOT ENTITLED TO AN INCREASE IN HIS RATE OF RETIRED PAY.

ATTACHED TO THE CORRESPONDENCE FORWARDED BY THE ACTING DIRECTOR, COMPENSATION AND PENSION SERVICE, IS THE FOLLOWING CERTIFICATE:

"COMMONWEALTH OF KENTUCKY

MILITARY DEPARTMENT

OFFICE OF THE ADJUTANT GENERAL

FRANKFORT

18 MARCH 1958

CERTIFICATE OF SERVICE

"PURSUANT TO SENATE RESOLUTION NO. 55, INTRODUCED 21 FEBRUARY 1958 AND PASSED BY THE SENATE OF THE COMMONWEALTH OF KENTUCKY, 6 MARCH 1958, BEING DIRECTED BY SAID RESOLUTION TO CERTIFY TO THE SERVICE THERETOFORE IN QUESTION OF HAROLD R. MORRIS ON THE BASIS OF AFFIDAVITS NOW MADE OF OFFICIAL RECORD, I HEREBY DO CERTIFY THAT, ACCORDING TO SUCH OFFICIAL AFFIDAVITS NOW OF RECORD IN THE DEPARTMENT OF MILITARY AFFAIRS, HAROLD R. MORRIS DID SERVE IN COMPANY C, 3RD INFANTRY, KENTUCKY NATIONAL GUARD FOR THREE YEARS FROM 8 MARCH 1907 TO 7 MARCH 1910.

(S) J. J. B. WILLIAMS

J. J. B. WILLIAMS

MAJOR GENERAL

THE ADJUTANT GENERAL"

SUCH CERTIFICATE IS MADE "ON THE BASIS OF AFFIDAVITS NOW MADE OF OFFICIAL RECORD.' IN OTHER WORDS, IT APPARENTLY WAS EXECUTED ON THE BASIS OF THE AFFIDAVITS DISCUSSED ABOVE. AS HERETOFORE POINTED OUT, THOSE AFFIDAVITS MAY NOT BE ACCEPTED AS ESTABLISHING THE SERVICE CLAIMED. NOR MAY A CERTIFICATE, BASED ON SUCH AFFIDAVITS, HAVE ANY ADDITIONAL FORCE OR EFFECT. COMPARE OUR DECISION OF JUNE 20, 1930, A 31680, IN WHICH IT WAS SAID THAT "THE AFFIDAVITS, BEING RECORDED IN THE ADJUTANT GENERAL'S OFFICE, GIVE THE CERTIFICATE BASED THEREON NO GREATER PROBATIVE VALUE THAN THE AFFIDAVITS.' MOREOVER, THE AFFIDAVITS NOW OF RECORD COULD NOT BE CONSIDERED AS STATE RECORDS MADE CONTEMPORANEOUSLY DURING THE PERIOD OF THE ALLEGED SERVICE.

WE MAY NOT ACCEPT THE PREMISE THAT THE STATE OF KENTUCKY CAN CORRECT MR. MORRIS' RECORDS SO AS TO ENTITLE HIM TO ADDITIONAL PAY FROM FEDERAL FUNDS. SEE OUR DECISION OF APRIL 13, 1956, B-126671. SUCH POWER, WITH RESPECT TO FEDERAL MILITARY RECORDS, IS VESTED IN THE SECRETARY OF THE ARMY UNDER THE AUTHORITY OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED AND CODIFIED IN 10 U.S.C. 1552.

ACCORDINGLY, SINCE THE NATIONAL GUARD SERVICE OF MR. HAROLD R. MORRIS HAS NOT BEEN ESTABLISHED, NO INCREASE IN THE RATE OF HIS RETIRED PAY WOULD BE AUTHORIZED ON THE PRESENT RECORD.