B-147096, JUL. 12, 1966

B-147096, JUL. 12, 1966

TO EMERY, SELLS AND WOOD, ATTORNEYS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1966, ENCLOSING A COPY OF DECISION OF OCTOBER 12, 1965, B-147096, ADDRESSED TO LIEUTENANT COLONEL J. J. VANYA, U.S. AIR FORCE, ACCOUNTING AND FINANCE DIVISION, CONCERNING THE ERRONEOUS PAYMENT OF RETIRED PAY MADE ON JANUARY 8, 1965, TO CAPTAIN JOHN M. BARNES, U.S. AIR FORCE, RETIRED, FOR THE PERIOD AUGUST 21, 1946, TO NOVEMBER 7, 1953, INCLUSIVE. ALSO RECEIVED AS AN ENCLOSURE WITH YOUR LETTER WAS A COPY OF HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER LETTER OF MAY 23, 1966, ADVISING CAPTAIN BARNES OF THE OVERPAYMENT.

IN A MEMORANDUM DATED MAY 21, 1964, THE UNDER SECRETARY OF THE AIR FORCE DIRECTED THAT:

"HAVING RECEIVED AND APPROVED THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS AND UNDER AUTHORITY OF SECTION 1552, TITLE 10, U.S.C. (70A STAT 116), IT IS DIRECTED THAT:

"1. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO JOHN M. BARNES, AO 311 077 BE CORRECTED TO SHOW THAT ON 20 AUGUST 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY SERVICE BY REASON OF HEPATITIS, CHRONIC, MODERATELY SEVERE; THAT THE DISABILITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF SERVICE, HAVING BEEN SUFFERED IN THE LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY SUBSEQUENT TO 19 DECEMBER 1940.

"2. ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN CONSONANCE WITH THIS DIRECTIVE.'

IN ADDITION, COLONEL VANYA ADVISED THIS OFFICE AS FOLLOWS:

"4. ON 21 MAY 1964, THE SECRETARY OF THE AIR FORCE CORRECTED THIS OFFICER'S MILITARY RECORDS TO SHOW THAT HE WAS NOT RETIRED 31 AUGUST 1963 UNDER THE PROVISION OF SECTION 1331, TITLE 10, U.S. CODE, BUT THAT HE WAS PLACED ON THE DISABILITY RETIRED LIST 20 AUGUST 1946 UNDER SECTION 5, ACT OF 3 APRIL 1939, AS AMENDED (PL 18, 76TH CONGRESS).'

IN DECISION OF OCTOBER 12, 1965, B-147096, THIS OFFICE POINTED OUT THAT THE COURT OF CLAIMS ON DECEMBER 13, 1963, HAD FOUND IN FAVOR OF CAPTAIN BARNES (SEE BARNES V. UNITED STATES, 163 CT.CL. 321) ON HIS SUIT FOR "* * * RETIRED PAY FOR THE PERIOD COMMENCING AUGUST 21, 1946, AND EXTENDING TO SUCH TIME AS THE COURT MAY ENTER JUDGMENT HEREIN * * *.' SEE PARAGRAPH XVII, COURT OF CLAIMS POSITION NO. 330-61, FILED AUGUST 18, 1961. THE COURT ENTERED A MONEY JUDGMENT ON MAY 18, 1964, COVERING THE PERIOD AUGUST 1, 1955, TO DECEMBER 13, 1963, INCLUSIVE, THEREBY GIVING DUE EFFECT TO THE PROVISIONS OF 28 U.S.C. 2501, WHICH BARRED THE COURT FROM JURISDICTION IN THE AWARD OF RETIRED PAY AS TO ANY PART OF THE PERIOD PRECEDING THE MONTH OF AUGUST 1955.

IT WAS ALSO POINTED OUT IN THE DECISION OF OCTOBER 12, 1965, THAT THE COURT OF CLAIMS HAD FOUND EVERY ELEMENT OF FACT AND LAW REQUIRED TO ESTABLISH THAT CAPTAIN BARNES SHOULD HAVE RECEIVED DISABILITY RETIREMENT PAY EFFECTIVE FROM AUGUST 21, 1946, THE DATE OF HIS RELEASE TO INACTIVE DUTY; THAT THE CORRECTION OF CAPTAIN BARNES' MILITARY RECORDS ON MAY 21, 1964, DID NOT CHANGE ANY BASIC FACT CONCERNING HIS MILITARY DISABILITY RETIRED STATUS AND THAT THE PLACEMENT OF HIS NAME ON THE DISABILITY RETIRED LIST AS OF AUGUST 20, 1946, DID NOT HAVE ANY LEGAL EFFECT ON HIS RIGHT, ALREADY JUDICIALLY ESTABLISHED BY THE DECISION OF DECEMBER 13, 1963, TO RECEIVE DISABILITY RETIREMENT PAY EFFECTIVE FROM AUGUST 21, 1946, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5, ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456, 1946 ED. COMPARE 32 COMP. GEN. 242, 247.

THUS, IT WAS CONCLUDED IN THE DECISION OF OCTOBER 12, 1965, THAT UNDER THE RULE OF HAISLIP V. UNITED STATES, 152 CT.CL. 339, DECIDED JANUARY 18, 1961, CAPTAIN BARNES ACQUIRED NO RIGHT TO DISABILITY RETIREMENT PAY AS A RESULT OF THE APPROVED CORRECTION BOARD ACTION OF MAY 21, 1964, WHICH HE HAD NOT HAD SINCE IN OR AROUND APRIL 1944; THAT UNDER THE HOLDING OF THE COURT OF CLAIMS IN THE DECISION OF DECEMBER 13, 1963, HE HAD BEEN ENTITLED ALL ALONG UNDER APPLICABLE PROVISIONS OF LAW AND WITHOUT ANY CHANGE NEEDED IN HIS MILITARY RECORDS TO RECEIVE THE DISABILITY RETIREMENT PAY CLAIMED BY HIM FROM THE TIME SUCH PAY HAD BEEN WRONGFULLY WITHHELD FROM HIM; THAT THE FACTS CONCERNING HIS DISABILITY RETIRED STATUS WERE THE SAME AFTER THE CORRECTION BOARD ACTION ON MAY 21, 1964, AS THEY HAD BEEN SINCE APRIL 1944; AND THAT ON THE BASIS OF THE FINDINGS OF THE COURT IN THE DECISION OF DECEMBER 13, 1963, HE COULD HAVE BROUGHT SUIT AT ANY TIME ON AND AFTER AUGUST 21, 1946, AND HAVING FAILED TO DO SO UNTIL THE FILING OF COURT OF CLAIMS PETITION NO. 330-61, ON AUGUST 18, 1961, HE WAS SUBJECT TO THE PERIOD OF LIMITATION PRESCRIBED IN 28 U.S.C. 2501 ON HIS COURT OF CLAIMS ACTION AND TO THE 10-YEAR PERIOD PRESCRIBED IN 31 U.S.C. 71A ON THE CLAIM RECEIVED IN THIS OFFICE NOVEMBER 8, 1963. AS A CONSEQUENCE, IT WAS HELD THAT THE CORRECTION BOARD ACTION OF MAY 21, 1964, FURNISHED NO LEGAL BASIS FOR THE PAYMENT TO CAPTAIN BARNES OF DISABILITY RETIREMENT PAY FOR THE PERIOD AUGUST 21, 1946, TO NOVEMBER 7, 1953, INCLUSIVE.

YOUR REQUEST FOR RECONSIDERATION OF THE ACTION TAKEN BY THIS OFFICE IN THE DECISION OF OCTOBER 12, 1965, REFERS FIRST TO THE DECISION RENDERED JULY 16, 1965, BY THE COURT OF CLAIMS IN OLESON V. UNITED STATES, CT.CL. NO. 376-64, IN WHICH THE COURT ADOPTED THE VIEW THAT WHILE THE CORRECTION BOARD ACTION IN OLESON'S CASE LEGALLY HAD PRODUCED NOTHING ON WHICH THE COURT COULD HAVE AWARDED A MONEY JUDGMENT TO OLESON DIRECTLY--- SEE THE HAISLIP DECISION--- SUCH CORRECTION BOARD ACTION NEVERTHELESS HAD INITIATED A VALID CLAIM WHICH COULD BE PAID ADMINISTRATIVELY. THE OLESON DECISION THUS SEEMS TO SAY THAT WHILE THE COURT WOULD NOT AID IN THE FIRST INSTANCE A LITIGANT WHO HAS SUCH A CLAIM AGAINST THE GOVERNMENT, IT WILL NEVERTHELESS AWARD JUDGMENT FOR THE AMOUNT PAID ADMINISTRATIVELY IF SUCH AMOUNT LATER IS COLLECTED BY DEDUCTIONS FROM THE MEMBER'S RETIRED PAY. THE STATEMENT MADE BY THE COURT IN THE OLESON CASE THAT THE CORRECTION OF RECORDS PAYMENT THEREIN UNDER CONSIDERATION WAS FINAL AND CONCLUSIVE ON THE GENERAL ACCOUNTING OFFICE IS IN DIRECT CONFLICT WITH THE LEGISLATIVE HISTORY OF THE STATUTORY PROVISIONS INVOLVED WHICH ARE NOW CODIFIED IN 10 U.S.C. 1552. SINCE SUCH LEGISLATIVE HISTORY IS SO CLEAR AS NOT TO ADMIT OF DIFFERENCES OF OPINION AS TO THIS MATTER, WE HAVE DECIDED NOT TO FOLLOW THE OLESON CASE. SEE DECISION OF MARCH 3, 1966, B-130839.

IN ADDITION, YOU SUGGEST THAT THE CORRECTION BOARD ACTION OF MAY 21, 1964, DID MAKE AN ACTUAL CHANGE OF A BASIC FACT IN CAPTAIN BARNES' MILITARY RECORDS. THIS WAS ACCOMPLISHED, YOU STATE, BY CORRECTING CAPTAIN BARNES' MILITARY RECORDS TO SHOW THAT ON AUGUST 20, 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY SERVICE, THAT HIS DISABILITY WAS PERMANENT AND THE RESULT OF AN INCIDENT OF HIS SERVICE INCURRED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY SUBSEQUENT TO DECEMBER 19, 1940. ALSO, YOU POINT OUT THAT THE SECRETARY OF THE AIR FORCE CORRECTED CAPTAIN BARNES' MILITARY RECORDS TO SHOW THAT HE WAS NOT RETIRED AUGUST 31, 1963, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1331,"* * * BUT THAT HE WAS PLACED ON THE DISABILITY RETIRED LIST 20 AUGUST 1946 UNDER SECTION 5, ACT OF 3 APRIL 1939, AS AMENDED * * *.' YOU ASSERT THAT AS A CONSEQUENCE OF THE CORRECTION BOARD ACTION CAPTAIN BARNES' RIGHTS TO RECEIVE DISABILITY RETIREMENT PAY:

"* * * NOW FLOW, NOT FROM HIS 1944 RETIRING BOARD ACTION AND SUBSEQUENT ADMINISTRATIVE ACTION RETAINING HIM ON ACTIVE DUTY UNLAWFULLY, AS COMPTROLLER GENERAL'S DECISION B-147096 SEEMS IMPLICITLY TO HOLD, BUT FROM THE SECRETARY'S MAY 21, 1964, DIRECTIVE CHANGING HIS MILITARY RECORD TO REFLECT THAT, AT THE TIME OF HIS SEPARATION FROM ACTIVE MILITARY SERVICE AUGUST 20, 1946, HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE MILITARY SERVICE BY REASON OF PHYSICAL DISABILITY INCURRED IN LINE OF DUTY AND INCIDENT TO HIS EXTENDED ACTIVE SERVICE BETWEEN 1940 AND 1946.'

THE COURT OF CLAIMS HELD IN THE DECISION OF DECEMBER 13, 1963, THAT CAPTAIN BARNES HAD BEEN ENTITLED "* * * TO COLLECT DISABILITY RETIREMENT PAY FROM THE TIME (IN OR AROUND APRIL 1944) OF THE RELEASE DUE HIM UNDER THE WAR DEPARTMENT MEMORANDUM.' THE COURT CITED FRIEDMAN V. UNITED STATES, 159 CT.CL. 1 (1962), AFTER STATING:

"IN THE INSTANT CASE PLAINTIFF (BARNES) WAS RELEASED FROM SERVICE AS A MATTER OF LAW, AND WAS ENTITLED TO DISABILITY RETIREMENT PAY IN OR AROUND APRIL, 1944. CONTRARY TO HIS LAWFUL RIGHT HE WAS RETAINED ON A LIMITED SERVICE STATUS FOR ANOTHER TWO YEARS. BUT HIS RIGHT TO THE DISABILITY RETIREMENT PAY HAD NOW PASSED BEYOND "THOSE OTHER CLAIMS DEPENDENT ON PRIOR ADMINISTRATIVE EVALUATION," AND HAD BECOME A CLAIM "INDEPENDENT OF ADMINISTRATIVE DETERMINATION.'"

SINCE IT HAS BEEN JUDICIALLY ESTABLISHED THAT CAPTAIN BARNES WAS LEGALLY ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY ON AND AFTER AUGUST 21, 1946, IT SEEMS SELF-EVIDENT THAT THE CHANGES MADE IN HIS MILITARY RECORDS BY THE CORRECTION BOARD ACTION OF MAY 21, 1964, (1) TO SHOW THAT ON AUGUST 20, 1946, HE WAS INCAPACITATED FOR ACTIVE MILITARY SERVICE, ETC., AND (2) TO SHOW THAT HE WAS NOT RETIRED AUGUST 31, 1963, UNDER THE PROVISIONS OF 10 U.S.C. 1331 BUT INSTEAD THAT HE HAD BEEN PLACED ON THE DISABILITY RETIRED LIST AUGUST 20, 1946, UNDER AUTHORITY OF SECTION 5 OF THE ACT OF APRIL 3, 1939, SUPRA, DID NOT HAVE ANY EFFECT ON HIS DISABILITY RETIREMENT PAY STATUS. WHILE HIS MILITARY RECORDS MAY HAVE BEEN CHANGED BY SHOWING HIS PLACEMENT ON THE DISABILITY RETIRED LIST ON AUGUST 20, 1946, IN LIEU OF HIS RETIREMENT AUGUST 31, 1963, THE CORRECTION ACTION ACTUALLY WAS REPETITIOUS IN NATURE IN THAT NO NEW RELEVANT FACT WAS PRODUCED BEARING ON HIS RIGHT TO RECEIVE RETIREMENT PAY ON AND AFTER AUGUST 21, 1946. SUCH ACTION PROPERLY MAY NOT BE CONSIDERED AS HAVING CREATED A NEW AND SEPARATE LEGAL RIGHT TO RECEIVE DISABILITY RETIREMENT PAY. THE COURT HAD ALREADY DETERMINED HIS RIGHTS WITH RESPECT TO RETIREMENT PAY FROM AUGUST 21, 1946, AND WOULD HAVE AWARDED HIM SUCH PAY FROM THAT DATE BUT FOR THE PROVISIONS OF 28 U.S.C. 2501.

THE COURT OF CLAIMS DECISION OF DECEMBER 13, 1963, CLEARLY ESTABLISHES THAT UNDER THE FACTS AND APPLICABLE PROVISIONS OF LAW NO ADMINISTRATIVE ACTION OR ANY CHANGE IN CAPTAIN BARNES' MILITARY RECORDS WAS NECESSARY TO ACCRUE HIS RIGHT TO THE DISABILITY RETIREMENT PAY DUE HIM FROM AUGUST 21, 1946. SEE NOTE 4 IN KUTZ V. UNITED STATES, 168 CT.CL. 68 (1964), CITING THE BARNES DECISION OF DECEMBER 13, 1963. THE CORRECTION BOARD ACTION OF MAY 21, 1964, LEFT CAPTAIN BARNES IN EXACTLY THE SAME SITUATION, INSOFAR AS HIS DISABILITY RETIREMENT PAY STATUS WAS CONCERNED, THAT PREVAILED PRIOR THERETO.

ACCORDINGLY, WE ADHERE TO THE CONCLUSIONS REACHED IN THE DECISION OF OCTOBER 12, 1965.