B-152310, OCTOBER 29, 1968, 48 COMP. GEN. 235

B-152310, OCTOBER 29, 1968, 48 COMP. GEN. 235

PAY - RETIRED - DISABILITY - DISABILITY DETERMINATION SUBSEQUENT TO RELEASE - STATUTES OF LIMITATION THE COURT IN LERNER V UNITED STATES, 168 CT. CL. 247, DECIDED DECEMBER 11, 1964, HAVING ESTABLISHED THE RIGHT OF THE PLAINTIFF TO DISABILITY RETIREMENT PAY EFFECTIVE DECEMBER 23, 1943, A CORRECTION OF MILITARY RECORDS, APPROVED DECEMBER 4, 1967, DID NOT CHANGE THE DISABILITY RETIRED STATUS OF THE PLAINTIFF--- AN ARMY OFFICER--- AND, THEREFORE, HE IS NOT ENTITLED TO DISABILITY RETIRED PAY FOR THE PERIOD DECEMBER 23, 1943, TO JULY 31, 1953, A PERIOD BARRED BY REASON THAT UNDER 28 U.S.C. 2501, PAYMENT OF THE JUDGMENT WAS RESTRICTED TO THE PERIOD JULY 1, 1957, TO DECEMBER 11, 1964, AND UNDER 31 U.S.C. 71A, PAYMENT OF A CLAIM RECEIVED AUGUST 1, 1963, BY THE UNITED STATES GENERAL ACCOUNTING OFFICE WAS LIMITED TO THE PERIOD AUGUST 1, 1953, TO JUNE 30, 1957, BUT IN VIEW OF THE RECOGNITION OF THE UNCORRECTED MILITARY RECORDS OF THE OFFICER, HE IS ENTITLED TO DISABILITY RETIRED PAY FROM DATE OF JUDGMENT. CLAIMS - ABATEMENT PENDING COURT DECISION THE GENERAL RULE THAT NO ACTION WILL BE TAKEN BY THE UNITED STATES GENERAL ACCOUNTING OFFICE ON A CLAIM INVOLVED IN A SUIT OR CONTROVERSY WHILE A JUDICIAL DETERMINATION IS PENDING HAS NO APPLICATION TO AN ARMY OFFICER SEEKING INJUNCTIVE RELIEF INCIDENT TO THE CORRECTION OF HIS MILITARY RECORDS RATHER THAN A MONEY JUDGMENT. THEREFORE A REQUEST FOR A DECISION ON THE LEGALITY OF PAYMENT OF DISABILITY RETIRED PAY THAT IS BASED ON ADMINISTRATIVE ACTION TAKEN SUBSEQUENT TO THE DATE THE COURT ACTION WAS FILED WILL BE CONSIDERED AND THE MERITS OF THE OFFICER'S CLAIM FOR DISABILITY DETERMINED.

TO CAPTAIN A. E. VELEZ, DEPARTMENT OF THE ARMY, OCTOBER 29, 1968:

REFERENCE IS MADE TO YOUR UNDATED LETTER (FILE REFERENCE FINCS-E LERNER, DAVID G. 0 322 054, RETIRED), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $16,772.27 IN FAVOR OF CAPTAIN DAVID G. LERNER, RETIRED, REPRESENTING DISABILITY RETIREMENT PAY FOR THE PERIOD DECEMBER 23, 1943, TO JULY 31, 1953, UNDER THE CIRCUMSTANCES DISCLOSED. YOU SAY THAT THE AMOUNT OF THE VOUCHER EXCLUDES RETIRED PAY DURING A PERIOD OF ACTIVE DUTY FROM JANUARY 13, 1944, TO JANUARY 11, 1946, AND VETERANS ADMINISTRATION COMPENSATION RECEIVED BY THE RETIRED OFFICER DURING THE PERIOD INVOLVED. YOUR REQUEST WAS FORWARDED HERE ON AUGUST 2, 1968, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ASSIGNED DO-A NUMBER 1015 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AS A GENERAL RULE WHERE A SUIT OR CONTROVERSY PENDING BEFORE A COURT INVOLVES A MATTER BEFORE US FOR PAYMENT, NO ACTION IS TAKEN BY OUR OFFICE UNTIL THE MATTER HAS BEEN JUDICIALLY DETERMINED. IN THIS CONNECTION, THERE IS NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA A COMPLAINT FILED IN MARCH 1967 IN THE CASE OF DAVID G. LERNER V STANLEY R. RESOR, SECRETARY OF THE ARMY, AND ELMER B. STAATS, COMPTROLLER GENERAL OF THE UNITED STATES, CIVIL ACTION NO. 511-67, ASKING THE COURT TO ISSUE CERTAIN ORDERS THERE SPECIFIED FOR PERMANENT INJUNCTIVE RELIEF PERTAINING TO THE CORRECTION OF LERNER'S MILITARY RECORD AND HIS RETIRED PAY STATUS.

IN THE PENDING CASE, HOWEVER, THE PLAINTIFF SEEKS INJUNCTIVE RELIEF RATHER THAN A MONEY JUDGMENT, AND SINCE YOUR REQUEST FOR DECISION ON THE LEGALITY OF PAYMENT OF DISABILITY RETIRED PAY IS BASED ON ACTION TAKEN BY THE UNDER SECRETARY OF THE ARMY ON DECEMBER 4, 1967, WHICH ACTION IS SUBSEQUENT TO THE DATE THE COURT ACTION WAS FILED--- THE MERITS OF LERNER'S CLAIM WILL BE CONSIDERED.

CAPTAIN LERNER'S CLAIM FOR DISABILITY RETIRED PAY COMMENCING DECEMBER 23, 1943, WAS THE SUBJECT OF COURT OF CLAIMS DECISION IN THE CASE OF LERNER V UNITED STATES, 168 CT. CL. 247, DECIDED DECEMBER 11, 1964. SINCE THE FACTS REPORTED IN THAT DECISION ARE IDENTICAL WITH THOSE RELATED IN YOUR SUBMISSION, ONLY THOSE PERTINENT FACTS GIVING RISE TO THE QUESTION PRESENTED WILL BE STATED HERE.

THE COURT IN ITS DECISION OF DECEMBER 11, 1964, NOTED THAT ON DECEMBER 31, 1943, THE SECRETARY OF WAR APPROVED THE FINDING OF AN ARMY RETIRING BOARD THAT CAPTAIN LERNER WAS PERMANENTLY INCAPACITATED AS A RESULT OF A SERVICE-CONNECTED DISABILITY FOR WHICH HE WAS RELIEVED FROM ACTIVE DUTY ON DECEMBER 22, 1943, AND PLACED ON INACTIVE STATUS. SINCE THE FINDINGS APPROVED BY THE SECRETARY, HOWEVER, INCLUDED A RECOMMENDATION THAT LERNER, A MEDICAL OFFICER, BE RETAINED ON ACTIVE DUTY IN A LIMITED SERVICE CAPACITY, HE WAS ORDERED TO ACTIVE DUTY EFFECTIVE JANUARY 13, 1944, AND CONTINUED IN THAT CAPACITY UNTIL JANUARY 11, 1946, WHEN HE WAS AGAIN RELIEVED FROM ACTIVE DUTY BECAUSE OF PHYSICAL DISABILITY.

PURSUANT TO THE JUDGMENT ENTERED BY THE COURT OF CLAIMS IN CAPTAIN LERNER'S CASE, THE PLAINTIFF WAS PAID DISABILITY RETIRED PAY IN THE AMOUNT OF $18,717.84 FOR THE PERIOD JULY 1, 1957, TO DECEMBER 11, 1964, PAYMENT BEING RESTRICTED TO THE 6-YEAR LIMITATION PERIOD PRESCRIBED IN 28 U.S.C. 2501. SUBSEQUENTLY, PLAINTIFF'S CLAIM FOR RETIRED PAY, RECEIVED IN THIS OFFICE ON AUGUST 1, 1963, WAS ALLOWED FOR THE PERIOD AUGUST 1, 1953, TO JUNE 30, 1957. THE 10-YEAR LIMITATION PERIOD FIXED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BARRED CONSIDERATION OF THAT PART OF THE CLAIM COVERING THE PERIOD DECEMBER 23, 1943, TO JULY 31, 1953.

YOU SAY THAT IN VIEW OF THE ACTION TAKEN BY THE COURT OF CLAIMS AND THE COMPTROLLER GENERAL, THE OFFICER WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST ON JULY 15, 1965, IN THE GRADE OF CAPTAIN AS OF DECEMBER 23, 1943, WITH ENTITLEMENT TO DISABILITY RETIRED PAY FROM DECEMBER 12, 1964, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1940 ED.). DISABILITY RETIREMENT PAY HAS BEEN PAID TO LERNER FOR THE PERIOD DECEMBER 12, 1964, THROUGH MAY 31, 1968, IN THE TOTAL AMOUNT OF $10,064.55.

YOU EXPRESS THE VIEW THAT SINCE CAPTAIN LERNER WAS FIRST DENIED THE CORRECTION OF HIS RECORDS BUT WAS PAID A MONEY JUDGMENT WHICH COULD NOT, AND DID NOT, BESTOW ON HIM THE STATUS OF RETIREMENT OR ENTITLEMENT TO DISABILITY RETIREMENT PAY, AND SINCE HE WAS NOT ACTUALLY CERTIFIED FOR RETIREMENT UNTIL AFTER JUDGMENT BY THE COURT, IT APPEARS THAT ESTABLISHMENT AND PAYMENT OF RETIRED PAY FROM DATE OF JUDGMENT BASED SOLELY ON SUCH JUDGMENT MAY BE ERRONEOUS AND MAY HAVE RESULTED IN AN OVERPAYMENT OF RETIRED PAY FOR THE PERIOD ON AND AFTER DECEMBER 12, 1964. IF THE ACTION OF THE CORRECTION BOARD ON DECEMBER 4, 1967, IS DETERMINED TO BE LEGAL AND PROPER, YOU SAY THAT THERE IS DUE THE OFFICER THE SUM OF $16,772.27 FOR THE PERIOD DECEMBER 23, 1943, TO JULY 31, 1953, AS SHOWN ON THE VOUCHER.

CONCERNING YOUR VIEWS OF A POSSIBLE OVERPAYMENT OF DISABILITY RETIRED PAY FROM THE DATE OF JUDGMENT, WE INVITE YOUR ATTENTION TO THE FACT, AS STATED ABOVE, THAT BOTH THE COURT OF CLAIMS AND THIS OFFICE HAVE RECOGNIZED THAT CAPTAIN LERNER'S UNCORRECTED RECORD PERMITS PAYMENT OF DISABILITY RETIRED PAY UNDER THE LAW. SEE B-152310, APRIL 16, 1965. THE COURT OF CLAIMS HAS RECOGNIZED ON A NUMBER OF OCCASIONS THAT WHERE IT IS ESTABLISHED THAT A DETERMINATION WAS ADMINISTRATIVELY MADE WHILE THE MEMBER WAS ENTITLED TO RECEIVE BASIC PAY THAT HE WAS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE BY REASON OF PHYSICAL DISABILITY, FURTHER ADMINISTRATIVE ACTION IS UNNECESSARY TO AUTHORIZE PAYMENT OF RETIRED PAY. SEE, FOR EXAMPLE, BARNES V UNITED STATES, 163 CT. CL. 321 (1963), AND REMALEY V UNITED STATES, 134 CT. CL. 874 (1956). THE EFFECT OF THE LATTER DECISION WAS FULLY CONSIDERED BY US IN 45 COMP. GEN. 389. CONSEQUENTLY, THERE IS NO LEGAL BASIS TO CONCLUDE THAT LERNER WAS NOT ENTITLED TO DISABILITY RETIREMENT PAY SUBSEQUENT TO THE DATE OF THE JUDGMENT (DECEMBER 11, 1964).

YOU STATE THAT ON APRIL 5, 1965, AFTER THE JUDGMENT BY THE COURT OF CLAIMS, CAPTAIN LERNER'S ATTORNEY REQUESTED THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS TO RECONSIDER THE OFFICER'S APPLICATION (WHICH WAS PREVIOUSLY DENIED ON JUNE 14, 1962) TO CHANGE HIS RECORDS TO SHOW ENTITLEMENT TO DISABILITY RETIREMENT PAY FOR ALL PERIODS AFTER DECEMBER 22, 1943, EXCEPT WHILE SERVING ON ACTIVE DUTY. SUBSEQUENT TO THE FILING OF THAT REQUEST AND WHILE THE ABOVE-MENTIONED COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WAS PENDING, THE UNDER SECRETARY OF THE ARMY IN A MEMORANDUM DATED DECEMBER 4, 1967, TO THE ADJUTANT GENERAL DIRECTED THAT:

HAVING APPROVED THE ADDITIONAL FINDINGS, CONCLUSIONS AND THE SUBSTITUTED RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS IN THE CASE OF DAVID LERNER, THE ACTION OF THE UNDER SECRETARY OF THE ARMY ON 14 JUNE 1962 IS WITHDRAWN, AND UNDER THE PROVISIONS OF 10 U.S.C. 1552, IT IS DIRECTED:

THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF DAVID LERNER BE CORRECTED TO SHOW:

A. THAT HE WAS CERTIFIED AS ELIGIBLE FOR DISABILITY RETIREMENT PAY BENEFITS IN THE GRADE OF CAPTAIN, EFFECTIVE 23 DECEMBER 1943, UNDER THE PROVISIONS OF THE ACT OF 3 APRIL 1939 (PUBLIC LAW 18, 76TH CONGRESS);

B. THAT HE WAS RECALLED TO ACTIVE DUTY IN THE GRADE OF CAPTAIN, EFFECTIVE 13 JANUARY 1944; AND

C. THAT HE WAS RELIEVED FROM ACTIVE DUTY IN THE GRADE OF CAPTAIN, EFFECTIVE 11 JANUARY 1946, AT WHICH TIME HE REGAINED ELIGIBILITY TO RECEIVE DISABILITY RETIREMENT PAY.

WHILE THE ACTION TAKEN BY THE UNDER SECRETARY OF THE ARMY IS IN THE FORM OF A CORRECTION OF LERNER'S MILITARY RECORD, IT DID NOT CHANGE ANY BASIC FACT CONCERNING HIS MILITARY DISABILITY RETIRED STATUS OR GIVE HIM ANY NEW RIGHT TO RETIRED PAY. THE CERTIFICATION AS TO HIS ELIGIBILITY FOR DISABILITY RETIREMENT PAY EFFECTIVE DECEMBER 23, 1943, DID NOT HAVE ANY LEGAL EFFECT ON HIS RIGHT, ALREADY JUDICIALLY ESTABLISHED BY THE COURT'S DECISION OF DECEMBER 11, 1964, TO DISABILITY RETIREMENT PAY EFFECTIVE DECEMBER 23, 1943. SEE 39 COMP. GEN. 178. SPEAKING OF THE SECRETARY'S APPROVAL OF THE FINDING OF LERNER'S PHYSICAL INCAPACITY, THE COURT SAID THAT (168 CT. CL. 247 AT PAGE 254) "SINCE THE SECRETARY GAVE HIS APPROVAL TO THE FINDING OF PERMANENT INCAPACITY, RECOVERY IS NOT PREVENTED BY THE FACT THAT PLAINTIFF WAS NEVER CERTIFIED TO THE VETERANS ADMINISTRATION AS BEING ELIGIBLE FOR DISABILITY RETIREMENT PAY.'

IN THE CASE OF HAISLIP V UNITED STATES, 152 CT. CL. 339, DECIDED JANUARY 18, 1961, IT WAS STATED " * * * DEFENDANT (GOVERNMENT) FILED A CROSS- MOTION ON THE GROUND THAT THE CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS (28 U.S.C. 2501).' THE MAJORITY OF THE COURT HELD:

WE ARE UNABLE TO SEE HOW THE "DECISION" OF THE CORRECTION BOARD GAVE PLAINTIFF ANY RIGHT HE HAD NOT HAD ALL ALONG. NO FACT APPEARING IN PLAINTIFF'S RECORD WAS CHANGED. THE FACTS REMAINED AS THEY HAD BEEN. THE BASIS OF THOSE FACTS, PLAINTIFF WAS ENTITLED TO BRING SUIT IMMEDIATELY AFTER HE WAS RETURNED TO THE RETIRED LIST AND THE DENIAL BY THE NAVY OF THE CLAIM HE NOW MAKES. THAT WAS IN 1946, WHICH WAS 13 YEARS BEFORE HIS PETITION WAS FILED IN THIS CASE. IN THAT 13 YEARS THE FACTS AND THE LAW GOVERNING HIS RIGHTS HAVE NOT CHANGED. ALL THAT THE "DECISION" OF THE (CORRECTION) BOARD AMOUNTED TO WAS A DECISION THAT ON THE BASIS OF THOSE FACTS PLAINTIFF WAS ENTITLED TO THE RIGHTS HE NOW CLAIMS. THE BOARD'S DECISION WAS MERELY A LEGAL CONCLUSION BASED ON THE LAW AND THE FACTS OF RECORD, NO ONE OF WHICH WAS CHANGED BY THE BOARD.

THE RULE IN THE HAISLIP CASE IS APPLICABLE HERE. UNDER THAT RULELERNER ACQUIRED NO RIGHT TO DISABILITY RETIREMENT PAY AS A RESULT OF THE CORRECTION BOARD'S ACTION APPROVED DECEMBER 4, 1967. THE FACTS CONCERNING HIS DISABILITY RETIRED STATUS REMAIN AS THEY HAD BEEN, THAT IS, HIS DISABILITY RETIRED STATUS AND THE LAW GOVERNING THE ENTITLEMENT TO DISABILITY RETIREMENT PAY WERE THE SAME AFTER THE ACTION OF DECEMBER 4, 1967, AS THEY HAD BEEN EVER SINCE DECEMBER 1943. ON THE BASIS OF THE FACTS FOUND BY THE COURT IN THE DECISION OF DECEMBER 11, 1964, HE COULD HAVE BROUGHT SUIT AT ANY TIME AFTER DECEMBER 22, 1943, THE DATE OF HIS INITIAL RELEASE FROM ACTIVE DUTY, AND BY FAILING TO DO SO UNTIL HE FILED HIS PETITION IN THE COURT OF CLAIMS ON JULY 31, 1963, 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 STATED IN 37 U.S.C. 71A ON HIS CLAIM RECEIVED IN THIS OFFICE ON AUGUST 1, 1963.

AS MATTER OF INTEREST, WE INVITE YOUR ATTENTION TO A RECENT DECISION OF THE COURT OF CLAIMS WHEREIN THE COURT RECOGNIZED THAT CORRECTION BOARD ACTION WHICH IS FAVORABLE TO AN INDIVIDUAL BUT WHICH IS BASED ON UNSUPPORTED FINDINGS OR GROUNDED IN AN ERRONEOUS INTERPRETATION OF THE STATUTE IS NOT BINDING FOR THE PURPOSE OF SUPPORTING A CLAIM FOR A MONEY JUDGMENT. SEE THE CASE OF BRIDGMAN V UNITED STATES, CT. CL. NO. 378-66 DECIDED JULY 17, 1968, AND THE AUTHORITIES CITED THEREIN.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US, THE APPROVED CORRECTION BOARD ACTION OF DECEMBER 4, 1967, FURNISHES NO LEGAL BASIS FOR THE PAYMENT TO CAPTAIN LERNER OF DISABILITY RETIRED PAY FOR ANY PART OF THE PERIOD BARRED BY THE PROVISIONS OF 31 U.S.C. 71A. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.