B-175382, OCT 23, 1973
Highlights
SUSKIND: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 2. WHO YOU INDICATE WAS ACTING AS INTERIM COUNSEL FOR MR. WHOSE CASE WAS THE SUBJECT MATTER OF OUR DECISION B-175382. YOU SAY THAT YOU ARE STILL SEEKING PAYMENT OF THE AMOUNT INVOLVED. GOEWEY WAS HONORABLY DISCHARGED FROM THE AIR FORCE IN THE GRADE OF MAJOR ON MARCH 5. HE WAS FOUND UNFIT TO PERFORM THE DUTIES OF HIS OFFICE. GRADE OR RATING BY REASON OF PHYSICAL DISABILITY RATED AT 10 PERCENT AND THAT HE WAS DISCHARGED FOR PHYSICAL DISABILITY ON MARCH 5. THIS CORRECTION WAS IMPLEMENTED BY SPECIAL ORDER NO. THE RECORDS FURTHER SHOW THAT VETERANS ADMINISTRATION COMPENSATION PAYMENTS WERE MADE TO MR. THE DISBURSING OFFICER REQUESTED A DECISION OF THIS OFFICE AS TO WHETHER THE PROVISIONS OF 10 U.S.C. 1212(C) WERE APPLICABLE IN MR.
B-175382, OCT 23, 1973
DENIAL AFFIRMED, UPON REVIEW, OF CLAIM OF MR. DONALD C. GOEWEY FOR $6,384, REPRESENTING DISABILITY SEVERANCE PAY. A MEMBER MAY NOT RECEIVE BOTH DISABILITY SEVERANCE PAY AND VETERANS ADMINISTRATION COMPENSATION FOR THE SAME DISABILITY SINCE THE PROVISIONS OF 10 U.S.C. 1212(C) CLEARLY REQUIRE THAT ANY SUMS PAID FOR DISABILITY SEVERANCE PAY AT SEPARATION OR DETERMINED TO BE DUE AT SEPARATION BY VIRTUE OF A CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552(C), BE SET OFF AGAINST ANY VETERANS ADMINISTRATION COMPENSATION RECEIVED FOR THE SAME DISABILITY.
TO HERBERT P. SUSKIND:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 2, 1973, AND LETTER DATED MAY 15, 1973, WITH ENCLOSURE, FROM MARTIN FOGEL, ESQ., WHO YOU INDICATE WAS ACTING AS INTERIM COUNSEL FOR MR. DONALD C. GOEWEY, WHOSE CASE WAS THE SUBJECT MATTER OF OUR DECISION B-175382, APRIL 21, 1972, RENDERED PURSUANT TO A REQUEST FROM A DISBURSING OFFICER OF THE AIR FORCE CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER IN FAVOR OF MR. GOEWEY IN THE AMOUNT OF $6,384, REPRESENTING DISABILITY SEVERANCE PAY. YOU SAY THAT YOU ARE STILL SEEKING PAYMENT OF THE AMOUNT INVOLVED, IN EFFECT REQUESTING A REVIEW OF THIS MATTER AND FURTHER CONSIDERATION OF THAT DECISION.
THE RECORDS SHOW THAT MR. GOEWEY WAS HONORABLY DISCHARGED FROM THE AIR FORCE IN THE GRADE OF MAJOR ON MARCH 5, 1951. ON JULY 19, 1971, THE ASSISTANT SECRETARY OF THE AIR FORCE DIRECTED THAT THE AIR FORCE RECORDS RELATING TO MR. GOEWEY'S DISCHARGE BE VOIDED AND CORRECTED TO SHOW THAT ON MARCH 5, 1951, HE WAS FOUND UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE OR RATING BY REASON OF PHYSICAL DISABILITY RATED AT 10 PERCENT AND THAT HE WAS DISCHARGED FOR PHYSICAL DISABILITY ON MARCH 5, 1951, WITH ENTITLEMENT TO DISABILITY SEVERANCE PAY. THIS CORRECTION WAS IMPLEMENTED BY SPECIAL ORDER NO. AC-30532, DATED AUGUST 31, 1971.
THE RECORDS FURTHER SHOW THAT VETERANS ADMINISTRATION COMPENSATION PAYMENTS WERE MADE TO MR. GOEWEY BEGINNING JANUARY 10, 1960, AND AS OF JULY 18, 1971, HE HAD RECEIVED BENEFITS TOTALING $42,854.59.
IN VIEW OF THE ABOVE, THE DISBURSING OFFICER REQUESTED A DECISION OF THIS OFFICE AS TO WHETHER THE PROVISIONS OF 10 U.S.C. 1212(C) WERE APPLICABLE IN MR. GOEWEY'S CASE SINCE HE BECAME ENTITLED TO THE DISABILITY SEVERANCE PAY AS OF MARCH 5, 1951, AND HE DID NOT RECEIVE VETERANS ADMINISTRATION PAYMENTS FOR ANY PERIOD PRIOR TO JANUARY 10, 1960.
WE HELD IN OUR DECISION OF APRIL 21, 1972, B-175382, THAT A MEMBER MAY NOT RECEIVE BOTH DISABILITY SEVERANCE PAY AND VETERANS ADMINISTRATION COMPENSATION FOR THE SAME DISABILITY SINCE THE PROVISIONS OF 10 U.S.C. 1212(C) CLEARLY REQUIRE THAT ANY SUMS PAID FOR DISABILITY SEVERANCE PAY AT SEPARATION, OR DETERMINED TO BE DUE AT SEPARATION BY VIRTUE OF A CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552(C), BE SET OFF AGAINST ANY VETERANS ADMINISTRATION COMPENSATION RECEIVED FOR THE SAME DISABILITY.
IN HIS LETTER OF MAY 15, 1973, MR. FOGEL SAYS THAT AFTER CAREFUL CONSIDERATION OF THE LAW AND THE FACTS HE DISAGREES WITH OUR DECISION RENDERED IN THIS CASE, CITING RECENT COURT OF CLAIMS DECISIONS IN THE CASES OF LON DEAL RUSSELL V. UNITED STATES, 190 CT. CL. 591 (1970) AND CLYDE A. RAY V. UNITED STATES, 197 CT. CL. 1 (1972) AS HAVING APPLICATION.
ON EXAMINATION OF THE REPORTS OF CASES CITED BY MR. FOGEL, WE FIND NOTHING CONTAINED THEREIN WHICH HAS ANY BEARING ON OUR DECISION IN MR. GOEWEY'S CASE.
IN THE RAY CASE, THE PLAINTIFF'S RECORDS WERE CORRECTED BY THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS NINE YEARS AFTER HIS DISCHARGE FROM THE AIR FORCE TO SHOW THAT HE RETIRED FOR PHYSICAL DISABILITY WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE FROM HIS ORIGINAL RETIREMENT DATE. IT WAS DETERMINED BY THE COURT THAT IN ORDER TO PUT HIM IN AS GOOD A FINANCIAL POSITION AS HE WOULD HAVE BEEN HAD HE BEEN ORIGINALLY RETIRED FOR PHYSICAL DISABILITY, IT WAS NECESSARY FOR THE AIR FORCE TO REIMBURSE THE PLAINTIFF FOR FEDERAL INCOME TAXES WITHHELD AND PAID TO THE INTERNAL REVENUE SERVICE. THE QUESTION OF SETOFFS BETWEEN DISABILITY SEVERANCE PAY AND VETERANS' ADMINISTRATION BENEFITS UNDER 10 U.S.C. 1212(C) WAS NOT AT ISSUE IN THE CASE.
IN THE RUSSELL CASE, THE PRIMARY QUESTION WAS THE EXTENT TO WHICH THE PLAINTIFF WAS DISABLED AT THE TIME OF HIS DISCHARGE. AGAIN 10 U.S.C. 1212(C) WAS NOT AT ISSUE IN THE CASE.
AS WE STATED IN OUR DECISION OF APRIL 21, 1972, B-175382, OUR VIEW IS THAT AFTER THE CORRECTION OF RECORDS, PAYMENT IS TO BE MADE SO AS TO PLACE THE INDIVIDUAL IN AS GOOD A POSITION AS HE WOULD HAVE BEEN HAD THE ERROR NOT BEEN MADE. IF MR. GOEWEY HAD BEEN AWARDED SEVERANCE PAY UPON SEPARATION IN 1951 HE WOULD HAVE RECEIVED $6,384. UPON BEING AWARDED DISABILITY COMPENSATION BY THE VETERANS ADMINISTRATION, THE PAYMENTS OF SUCH BENEFITS WOULD HAVE HAD TO BE WITHHELD UNTIL THE AMOUNT OF THE DISABILITY SEVERANCE PAY HAD BEEN RECOUPED. THEREFORE, SINCE 10 U.S.C. 1212(C) REFERS ONLY TO THE "SAME DISABILITY" AND NO REFERENCE IS MADE TO PERIODS OF ENTITLEMENT, MR. GOEWEY IS IN THE SAME POSITION FINANCIALLY THAT HE WOULD HAVE BEEN IN IF HE HAD ACTUALLY BEEN SEPARATED WITH SEVERANCE PAY ON MARCH 5, 1951.
MR. FOGEL ALSO POINTS OUT THAT THE RECORDS IN MR. GOEWEY'S CASE WERE CORRECTED TO SHOW THAT THE AIR FORCE HAD COMMITTED AN ERROR AND AN INJUSTICE. OUR CONSIDERATION OF THE CASE DOES NOT INVOLVE THE REASON BEHIND THE CORRECTION OF MR. GOEWEY'S SERVICE RECORDS. SUCH MATTERS ARE SOLELY WITHIN THE EXCLUSIVE JURISDICTION OF THE SECRETARY OF THE AIR FORCE AND THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS. OUR CONCERN WITH CORRECTION OF RECORDS RELATES SOLELY TO THE EFFECT SUCH CORRECTION OF RECORDS MAY HAVE ON A MEMBER'S OR FORMER MEMBER'S ENTITLEMENT TO RECEIVE ADDITIONAL MILITARY PAY AND ALLOWANCES. SINCE 10 U.S.C. 1212(C) PROHIBITS THE RECEIPT OF BOTH DISABILITY SEVERANCE PAY AND VETERANS ADMINISTRATION COMPENSATION FOR THE SAME DISABILITY, WE FIND NO PROPER BASIS TO ALLOW HIS CLAIM.
ACCORDINGLY, IT IS OUR VIEW THAT REASONS ADVANCED FOR RECONSIDERATION OF THE CASE DO NOT WARRANT A DIFFERENT RESULT THAN THAT REACHED IN OUR DECISION, B-175382, APRIL 21, 1972, AND WE REAFFIRM THE HOLDING IN THAT CASE.