B-157759, DEC 14, 1971

B-157759, DEC 14, 1971

MILITARY PERSONNEL - CORRECTION OF RECORDS - ENTITLEMENT TO PAY AND ALLOWANCES DECISION AFFIRMING PRIOR DECISION OF AUGUST 16, 1971 WHICH DISALLOWED THE CLAIM OF MAJOR DANTE S. REALE, USAF, RETIRED TO ACTIVE DUTY PAY AND ALLOWANCES AS A MAJOR FOR THE PERIOD APRIL 13, 1963 THROUGH JULY 31, 1969. GAO IS WITHOUT AUTHORITY TO QUESTION THE RECOMMENDATION OF THE BOARDS FOR THE CORRECTION OF MILITARY RECORDS OR THE RESPECTIVE SECRETARIES OF THE ARMED SERVICES IN THIS MATTER. ACCORDINGLY, AS CLAIMANT'S MILITARY RECORDS, AS CORRECTED, DO NOT INDICATE SERVICE AS A MAJOR DURING THE PERIOD, THE CLAIM IS DENIED.

TO MAJOR DANTE S. REALE:

REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 15 AND 24, 1971, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION B-157759, AUGUST 16, 1971, WHICH DENIED YOUR CLAIM FOR THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR FOR THE PERIOD APRIL 13, 1963, THROUGH JULY 31, 1969, RESULTING FROM THE CORRECTION OF YOUR MILITARY RECORD PURSUANT TO THE RECOMMENDATIONS OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS.

IN OUR DECISION OF AUGUST 16, 1971, YOU WERE ADVISED THAT 10 U.S.C. 8380(A) AND (B) PROVIDE THAT IN THE ABSENCE OF ORDERS DIRECTING YOU TO PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR (IN THE AIR FORCE RESERVE) OR ORDERS PROMOTING YOU TO THE USAF TEMPORARY GRADE OF MAJOR, YOU ARE NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR. YOU WERE NOT IN FACT ORDERED TO PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR IN THE AIR FORCE RESERVE AND YOUR MILITARY RECORDS WERE NOT CORRECTED TO SHOW THAT YOU WERE ORDERED TO PERFORM ACTIVE DUTY IN THAT GRADE OR THAT YOU WERE PROMOTED TO THE USAF TEMPORARY GRADE OF MAJOR.

IT WAS ALSO POINTED OUT THAT, ON THE CONTRARY, YOUR RETIREMENT ORDERS PREPARED PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1552, GOVERNING THE CORRECTION OF MILITARY RECORDS, EXPRESSLY STATE THAT THE HIGHEST GRADE HELD BY YOU ON ACTIVE DUTY WAS THE GRADE OF CAPTAIN. WE CONCLUDED, THEREFORE, THAT YOU WERE NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR DURING ANY PART OF THE PERIOD OF APRIL 13, 1963, THROUGH JULY 31, 1969.

FROM YOUR LETTER OF AUGUST 24, 1971, IT APPEARS TO BE YOUR POSITION THAT PARAGRAPH 2 OF THE MEMORANDUM FOR THE CHIEF OF STAFF, DATED MAY 26, 1970, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, DIRECTING THAT YOUR MILITARY RECORD BE CORRECTED TO SHOW THAT YOU WERE "PROMOTED TO THE GRADE OF MAJOR, RESERVE OF THE AIR FORCE, EFFECTIVE 13 APRIL 1963" SHOULD HAVE OPERATED TO CORRECT YOUR RECORDS TO SHOW THAT YOU SERVED ON ACTIVE DUTY IN THAT GRADE. YOU CONTEND, THEREFORE, THAT YOUR RETIREMENT ORDER OF JUNE 17, 1970, WHICH WAS ISSUED PURSUANT TO THAT MEMORANDUM WAS INCORRECT IN THAT IT SHOWED YOUR HIGHEST GRADE HELD ON ACTIVE DUTY AS CAPTAIN, NOT MAJOR. AS WE INDICATED PREVIOUSLY, IN THE ABSENCE OF ORDERS DIRECTING YOU TO PERFORM ACTIVE DUTY IN THE GRADE OF MAJOR OR ORDERS PROMOTING YOU TO THE USAF TEMPORARY GRADE OF MAJOR (WHICH PROMOTION WAS SPECIFICALLY DENIED BY PARAGRAPH 5 OF THE ASSISTANT SECRETARY'S MEMORANDUM), YOU ARE NOT ENTITLED TO THE PAY AND ALLOWANCES OF THAT GRADE.

YOU ALSO INDICATE THAT YOUR ENTIRE RETIREMENT ORDER IS "ILLEGAL" IN THAT IT SHOWS THAT YOU WERE RETIRED PER 10 U.S.C. 8911, WHICH PROVIDES IN EFFECT THAT THE SECRETARY OF THE AIR FORCE MAY, "UPON THE OFFICER'S REQUEST," RETIRE A REGULAR OR RESERVE OFFICER WHO HAS AT LEAST 20 YEARS OF SERVICE. YOU SAY YOU NEVER REQUESTED TO BE RETIRED, ALTHOUGH, WE NOTE THAT THAT PORTION OF THE ORDERS APPEARS TO BE AN ACCURATE REFLECTION OF PARAGRAPH 4 OF THE ASSISTANT SECRETARY'S MEMORANDUM. HOWEVER THAT MAY BE, THE CORRECTION OF MILITARY RECORDS, WHICH IS AUTHORIZED BY 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."

IT IS APPARENT THAT THIS OFFICE IS WITHOUT AUTHORITY TO QUESTION THE RECOMMENDATION OF THE BOARD OR THE SECRETARY'S DETERMINATION, SINCE, IN THE ABSENCE OF FRAUD, AN AUTHORIZED CORRECTION IS FINAL. SEE ALSO 44 COMP. GEN. 143, 146 (1964) AND 40 COMP. GEN. 116, 119 (1960).

ACCORDINGLY, UNDER YOUR MILITARY RECORD AS CORRECTED AND THE ORDERS ISSUED PURSUANT THERETO, YOU ARE NOT ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF A MAJOR DURING ANY PART OF THE PERIOD FROM APRIL 13, 1963, THROUGH JULY 31, 1969. OUR DECISION OF AUGUST 16, 1971, IS THEREFORE AFFIRMED.