B-139264, SEP. 10, 1963, 43 COMP. GEN. 242

B-139264, SEP. 10, 1963, 43 COMP. GEN. 242

PAY - RETIRED - STATUS ON RETIRED LIST - SUBSEQUENT TO JUDGMENT AWARD AN AIR FORCE CAPTAIN DISCHARGED FOR DISABILITY WITH SEVERANCE PAY WHO SUBSEQUENTLY IN FRITH V. UNITED STATES, 156 CT.CL. 188, IS AWARDED A MONEY JUDGMENT EQUAL TO RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN FROM DATE OF DISCHARGE THROUGH DATE OF JUDGMENT, LESS THE DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION AND THE MUSTERING-OUT PAYMENT RECEIVED AFTER RELEASE FROM ACTIVE DUTY, MAY NOT ON THE BASIS OF THE DECISION CONTINUE TO RECEIVE RETIRED PAY FOR PERIODS SUBSEQUENT TO THE PERIOD COVERED BY THE JUDGMENT IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF THE OFFICER'S RECORDS BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, THE DECISION NOT BESTOWING ON THE OFFICER ANY STATUS IN THE AIR FORCE, ACTIVE OR RETIRED, AND THE MONEY JUDGMENT NEITHER AFFECTING A CHANGE IN THE OFFICER'S RECORDS THAT FAILED TO DISCLOSE A MILITARY STATUS SUBSEQUENT TO DATE OF DISCHARGE, NOR COMPELLING EXECUTIVE ACTION TO EFFECT THE CHANGE.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 10, 1963:

REFERENCE IS MADE TO THE CASE OF CAPTAIN OLLIE T. FRITH, AO 1281535, WHO WAS AWARDED DISABILITY RETIRED PAY BY THE UNITED STATES COURT OF CLAIMS, FRITH V. UNITED STATES, 156 CT.CL. 188, FOR THE PERIOD AUGUST 15, 1954, THROUGH THE DATE OF JUDGMENT. THE COURT FOUND FRITH ENTITLED TO RETIRED PAY AT THE PAY GRADE OF CAPTAIN ON THE BASIS OF A DISABILITY RATED AT LEAST 50 PERCENT, LESS SEVERANCE PAY AND LESS SUCH BENEFITS AS HE MAY HAVE RECEIVED FROM THE VETERANS ADMINISTRATION.

HEADQUARTERS UNITED STATES AIR FORCE FURNISHED TO THE RETIRED PAY DIVISION, AIR FORCE ACCOUNTING AND FINANCE CENTER, A DD FORM 424, CERTIFICATION OF INFORMATION FOR RETIREMENT PAY, DATED MAY 17, 1962, WHICH CARRIES THE NOTIFICATION THAT "MEMBER ENTITLED TO RETIRED PAY AT THE GRADE OF CAPTAIN FROM 14 AUGUST 1954, PERCENTAGE EVALUATION 50 PERCENT, PER COURT OF CLAIMS DECISION NUMBER 138-59 DECIDED 12 JANUARY 1962.'

DURING THE COURSE OF THE AUDIT OF AIR FORCE ACCOUNTS BY OUR DEFENSE ACCOUNTING AND AUDITING DIVISION IT WAS REVEALED THAT IN ACCORDANCE WITH THE ABOVE CERTIFICATION THE RETIRED PAY DIVISION ESTABLISHED RETIRED PAY ON A CURRENT BASIS TO FRITH AT $231.51 PER MONTH, EFFECTIVE AUGUST 1, 1962, AND MADE A RETROACTIVE PAYMENT OF RETIRED PAY LESS VETERANS ADMINISTRATION COMPENSATION FOR THE PERIOD JANUARY 13, THROUGH JULY 31, 1962.

AVAILABLE RECORDS SHOW THAT CAPTAIN FRITH WAS RELEASED FROM ACTIVE DUTY ON OCTOBER 5, 1946, THAT HE SERVED IN THE OFFICERS' RESERVE CORPS AND AIR FORCE RESERVE, AND WAS RECALLED TO ACTIVE DUTY ON JANUARY 18, 1951. AUGUST 14, 1954, HE WAS RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY. DURING THIS LAST TOUR OF DUTY A MEDICAL BOARD FOUND FRITH UNFIT FOR ACTIVE MILITARY SERVICE ON JUNE 7, 1954. A PHYSICAL EVALUATION BOARD MADE A SIMILAR FINDING ON JUNE 8, 1954, AND RECOMMENDED SEPARATION WITH SEVERANCE PAY. HOWEVER, UPON REVIEW BY THE PHYSICAL REVIEW COUNCIL IT WAS DETERMINED THAT FRITH WAS FIT FOR ACTIVE MILITARY DUTY. ON JULY 7, 1954, A PHYSICAL EVALUATION BOARD AGAIN FOUND FRITH UNFIT FOR ACTIVE DUTY AND AGAIN RECOMMENDED DISCHARGE WITH SEVERANCE PAY. THE PHYSICAL REVIEW COUNCIL DID NOT CONCUR AND FOUND THE MEMBER FIT FOR ACTIVE DUTY.

ON AUGUST 2, 1954, THE AIR FORCE PHYSICAL DISABILITY APPEAL BOARD FOUND THAT THE MEMBER WAS UNFIT FOR DUTY, BUT THAT HIS DISABILITY WAS INCIDENT TO HIS PRIOR SERVICE, AND RECOMMENDED DISCHARGE FOR DISABILITY WITHOUT SEVERANCE PAY. ON AUGUST 14, 1954, FRITH WAS DISCHARGED BY REASON OF PHYSICAL DISABILITY. ON JULY 5, 1955, THE AIR FORCE DISABILITY REVIEW BOARD AFFIRMED THE AUGUST 2, 1954, FINDINGS OF THE DISABILITY APPEAL BOARD.

THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS SUBSEQUENTLY FOUND THE OFFICER UNFIT FOR DUTY BASED ON THE SERVICE-INCURRED DISABILITY RATED AT 20 PERCENT. THE SECRETARY OF THE AIR FORCE APPROVED THE BOARD'S RECOMMENDATION THAT FRITH'S RECORDS BE CORRECTED TO SHOW THAT HE WAS DISCHARGED ON AUGUST 14, 1954, BY REASON OF PHYSICAL DISABILITY WITH ENTITLEMENT TO SEVERANCE PAY. FRITH THEN DECIDED NOT TO ACCEPT THE SETTLEMENT OF SEVERANCE PAY AND FILED SUIT IN THE COURT OF CLAIMS.

PRIOR TO THE COURT OF CLAIMS DECISION, THE AIR FORCE HAD CONTINUOUSLY DENIED RETIREMENT BENEFITS TO FRITH BECAUSE THE OFFICER WAS NEVER FOUND TO HAVE A DISABILITY RATING OF 30 PERCENT OR MORE. THUS IT APPEARS THAT THE CERTIFICATION FOR RETIRED PAY FOR PERIODS SUBSEQUENT TO THE JUDGMENT WAS BASED SOLELY UPON THE COURT'S FINDINGS. IT APPEARS FURTHER THAT NO ORDERS DIRECTING FRITH'S RETIREMENT WERE ISSUED AND THAT NO ACTION WAS TAKEN TO SET ASIDE THE DISCHARGE EFFECTIVE AUGUST 14, 1954, AS AMENDED BY THE CORRECTION OF RECORD ACTION.

UNDER THE COURT'S DECISION OF JANUARY 12, 1962, THE PLAINTIFF BECAME ENTITLED TO A JUDGMENT FOR A SUM OF MONEY EQUAL TO RETIRED PAY COMPUTED ON THE GRADE OF CAPTAIN, FOR THE PERIOD AUGUST 15, 1954, THROUGH JANUARY 12, 1962, LESS DISABILITY COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION AND MUSTERING-OUT PAYMENT RECEIVED AFTER RELEASE FROM ACTIVE DUTY ON AUGUST 14, 1954. THE COURT'S DECISION DID NOT, AND COULD NOT, BESTOW ON FRITH ANY STATUS IN THE AIR FORCE, ACTIVE OR RETIRED. THE COURT OF CLAIMS WAS SIMPLY AWARDING A JUDGMENT IN THE NATURE OF MONEY DAMAGES.

IN PATTERSON V. UNITED STATES, 141 CT.CL. 435, 438 (1958), THE COURT POINTED OUT THAT THE RENDERING OF A MONEY JUDGMENT "DOES NOT HAVE THE EFFECT OF ACTUALLY CHANGING AN OFFICIAL RECORD OR OF COMPELLING EXECUTIVE ACTION.' IN SAN MILLAN, JR. V. UNITED STATES, 139 CT.CL. 485, 487 (1957), THE COURT HELD THAT:

* * * WHILE IT IS TRUE THAT THIS COURT CANNOT CONFER THE STATUS OF DISABILITY RETIREMENT ON A MEMBER OR FORMER MEMBER OF THE ARMED FORCES, ANY MORE THAN IT CAN RESTORE A WRONGFULLY DISCHARGED CIVIL SERVICE EMPLOYEE TO HIS JOB WITH THE FEDERAL GOVERNMENT, IT HAS LONG BEEN HELD THAT THIS COURT HAS JURISDICTION TO RENDER JUDGMENT FOR THE PAY WHICH WAS DENIED THE CLAIMANT BY ARBITRARY OR CAPRICIOUS ACTIONS OF THE ADMINISTRATIVE AGENCY OF THE GOVERNMENT.

SEE FRIEDMAN V. UNITED STATES, 141 CT.CL. 239, 258-259 (1958) AND THE DECISION IN BETTS V. UNITED STATES, 145 CT.CL. 530, 536 (1959) IN WHICH THE COURT STATED:

THIS COURT HAS, OF COURSE, NO AUTHORITY TO APPOINT PERSONS TO PUBLIC OFFICE. IT DOES HAVE JURISDICTION TO AWARD THEM MONEY DAMAGES AS COMPENSATION FOR VIOLATIONS OF RIGHTS GRANTED TO THEM BY STATUTE OR REGULATION.

DD FORM 424, DATED MAY 17, 1962, CONTAINS INFORMATION THAT FRITH'S RETIREMENT WAS EFFECTED UNDER STATUTORY AUTHORIZATION OF CH. 61, TITLE 10, U.S. CODE, AND THAT HIS GRADE FOR RETIRED PAY PURPOSES WAS DETERMINED UNDER AUTHORITY OF SECTION 1372, SAME TITLE. THAT SECTION PERTAINS TO RETIREMENTS FOR PHYSICAL DISABILITY UNDER SECTIONS 1201 AND 1204. THOSE SECTIONS AUTHORIZE RETIREMENT UPON A DETERMINATION BY THE SECRETARY CONCERNED AND REQUIRE A RETIREMENT ORDER AND A CONTINUING MILITARY STATUS AS A PREREQUISITE TO THEIR APPLICATION. SINCE THE RECORD FAILS TO DISCLOSE THAT FRITH HAD A MILITARY STATUS SUBSEQUENT TO THE DATE OF HIS DISCHARGE FROM THE SERVICE ON AUGUST 14, 1954, IN WHICH HE COULD HAVE BEEN RETIRED, CONTINUING RETIRED PAY IS NOT AUTHORIZED ON THE PRESENT STATE OF THE RECORD SOLELY ON THE BASIS OF THE COURT OF CLAIMS DECISION OF JANUARY 12, 1962.

ACCORDINGLY, THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF RETIRED PAY FOR PERIODS SUBSEQUENT TO THE PERIOD COVERED BY THE JUDGMENT IN THE ABSENCE OF AN APPROPRIATE CORRECTION OF THE OFFICER'S RECORDS THROUGH THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS. OUR DEFENSE ACCOUNTING AND AUDITING DIVISION IS BEING ADVISED TO TAKE EXCEPTIONS TO SUCH PAYMENTS IN THE ABSENCE OF SUCH A CORRECTION.