B-178760, FEB 28, 1974

B-178760, FEB 28, 1974

AIR FORCE MEMBER PLAINTIFF IN CASE OF HARLTON V. SECRETARY OF THE AIR FORCE (USDC ND OKLA.), 69-C-152, MAY 16, 1962, WHO FOLLOWING JUDGMENT IN CASE, APPLIED FOR AND WAS GRANTED CORRECTION OF RECORDS BY AFBCMR TO CONFORM TO JUDGMENT OF COURT IS ENTITLED TO RETIRED PAY AT GRADE DETERMINED TO BE PROPER BY THE COURT FOR PERIOD SUBSEQUENT TO DATE OF JUDGMENT. AIR FORCE MEMBER WHO, PURSUANT TO COURT JUDGMENT WHEREIN IT WAS PROVIDED FOR INTEREST TO BE PAID AT 6% ON "ARREARAGE PAYMENTS" OF RETIRED PAY, IS ENTITLED TO THE PAYMENT OF INTEREST ONLY ON THOSE RETIRED PAY PAYMENTS DETERMINED TO BE PAST DUE AS OF DATE OF JUDGMENT, COMPUTED THROUGH DATE OF JUDGMENT.

TO MR. N. R. BRENINGSTALL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1973 (FILE REFERENCE RPTT), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $4,339.17 IN FAVOR OF BRUCE H. HARLTON, JR., USAF, RETIRED, SSAN XXX-XX-XXXX, REPRESENTING ADDITIONAL RETIRED PAY FOR THE PERIOD SEPTEMBER 1, 1962, THROUGH APRIL 30, 1973, INCLUDING INTEREST, IN ACCORDANCE WITH A JUDGMENT IN HIS FAVOR RENDERED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA ON MAY 16, 1972. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER FROM THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, DATED MAY 25, 1973, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. D0- AF-1193 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FILE SHOWS THAT THE MEMBER ENLISTED IN THE AIR FORCE ON JANUARY 26, 1953, WAS COMMISSIONED AS A SECOND LIEUTENANT, USAFR, ON APRIL 28, 1954, AND WAS PROMOTED TO FIRST LIEUTENANT ON DECEMBER 12, 1955. IT APPEARS THAT IN MARCH 1956, THE MEMBER SUSTAINED A SPINAL INJURY WHILE ON A TRAINING MISSION WHICH RESULTED IN HIS BEING SUSPENDED FROM FLYING DUTIES BY REASON OF PHYSICAL DISQUALIFICATION AND WAS HOSPITALIZED FOR EXAMINATION AND ORTHOPEDIC EVALUATION. IN 1957 THE MEMBER APPARENTLY REQUESTED RELEASE FROM HIS INDEFINITE ACTIVE DUTY SERVICE COMMITMENT. SEPTEMBER 11, 1957, HE WAS MEDICALLY EXAMINED AND FOUND "QUALIFIED FOR DISCHARGE AND FLYING CLASS II", AND WAS RELEASED FROM EXTENDED ACTIVE DUTY ON SEPTEMBER 16, 1957, AND REVERTED TO HIS RESERVE STATUS, HAVING COMPLETED 4 YEARS, 7 MONTHS AND 19 DAYS OF SERVICE FOR PAY PURPOSES. THE FILE INDICATES THAT ON SEPTEMBER 18, 1957, FOLLOWING THAT RELEASE, THE MEMBER REQUESTED A CONDITIONAL RELEASE FROM THE AIR FORCE RESERVE TO ACCEPT AN APPOINTMENT WITH THE OKLAHOMA AIR NATIONAL GUARD AND WAS SO APPOINTED ON DECEMBER 13, 1957.

ON SEPTEMBER 9, 1961, INCIDENT TO THE RECALL TO ACTIVE DUTY OF HIS OKLAHOMA AIR NATIONAL GUARD UNIT, THE MEMBER WAS MEDICALLY EXAMINED AND FOUND TO BE PHYSICALLY UNQUALIFIED FOR ACTIVE FLYING DUTY DUE TO HIS SPINAL CONDITION. THE FILE FURTHER INDICATES ON OCTOBER 5, 1961, THE NATIONAL GUARD BUREAU CERTIFIED MEMBER MEDICALLY DISQUALIFIED FOR AN AIR FORCE COMMISSION DUE TO RHEUMATOID ARTHRITIS AND BY ORDERS ISSUED BY THE OKLAHOMA AIR NATIONAL GUARD DATED OCTOBER 24, 1961, THE MEMBER WAS DISCHARGED FROM THE AIR NATIONAL GUARD, EFFECTIVE SEPTEMBER 30, 1961, FOR PHYSICAL DISABILITY AND TRANSFERRED TO THE AIR FORCE RESERVE NON- AFFILIATED RESERVE SECTION, EFFECTIVE OCTOBER 1, 1961.

THE RECORD SHOWS THAT THE MEMBER APPLIED TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS ASKING THAT HIS RECORD BE CHANGED TO SHOW HE HAD RETIRED FOR SERVICE-INCURRED DISABILITY ON SEPTEMBER 16, 1957, RATHER THAN HAVING BEEN RELEASED FROM EXTENDED ACTIVE DUTY PURSUANT TO SECTION H, AFR 36-22. THIS APPLICATION WAS DENIED BY THE CORRECTION BOARD ON SEPTEMBER 27, 1968.

SUBSEQUENT TO THE DENIAL OF MEMBER'S APPLICATION TO THE CORRECTION BOARD IN 1968, HE APPEALED TO THE CORRECTION BOARD FOR RECONSIDERATION AND ON JULY 10, 1969, FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA AGAINST THE SECRETARY OF THE AIR FORCE.

ON JANUARY 13, 1970, THE CORRECTION BOARD RECONSIDERED THE MEMBER'S CASE AND CONCLUDED THAT "ERRORS AND INJUSTICES EXISTED." BASED ON THE FINDINGS AND RECOMMENDATIONS OF THE CORRECTION BOARD, THE ASSISTANT SECRETARY OF THE AIR FORCE, IN A MEMORANDUM ADDRESSED TO THE CHIEF OF STAFF, DATED FEBRUARY 16, 1970, DIRECTED THAT THE MEMBER'S RECORD BE CORRECTED TO SHOW THAT ON SEPTEMBER 16, 1957, HE WAS UNFIT TO PERFORM HIS DUTIES DUE TO A SERVICE-INCURRED DISABILITY WITH A TOTAL COMBINED COMPENSABLE RATING OF 40 PERCENT AND THAT HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE SEPTEMBER 17, 1957. FURTHER, IT WAS DIRECTED THAT HIS RECORDS BE CORRECTED TO SHOW THAT HIS NAME WAS PLACED ON THE PERMANENT RETIRED LIST WITH A VA RATING OF 100 PERCENT WITH ENTITLEMENT TO DISABILITY RETIRED PAY EFFECTIVE JUNE 17, 1962.

YOU SAY THAT PURSUANT TO THE FEBRUARY 16, 1970 DIRECTIVE, THE MEMBER WAS PAID $25,978.88 REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 17, 1957, THROUGH FEBRUARY 15, 1970, LESS $2,209.58, FOR ACTIVE AND INACTIVE DUTY PERFORMED BY HIM DURING THE PERIOD JANUARY 1, 1958, THROUGH SEPTEMBER 30, 1961, OR A TOTAL OF $23,769.30. FURTHER, THAT HIS RETIRED PAY ACCOUNT WAS ESTABLISHED EFFECTIVE FEBRUARY 16, 1970, IN THE GRADE OF FIRST LIEUTENANT, AND YOU SAY THAT PAYMENTS HAVE BEEN RELEASED AS DUE FROM THAT DATE.

IN THE DECISION RENDERED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA IN HIS CASE (HARLTON V. SECRETARY OF THE AIR FORCE (USDC ND OKLA), 69-C-152, MAY 16, 1972), THE COURT DETERMINED THAT "THE FINDINGS AND ULTIMATE CONCLUSIONS CONCERNING DISABILITY RETIREMENT PAY OF THE SECRETARY OF THE AIR FORCE IN THE MEMORANDUM FOR THE CHIEF OF STAFF, DATED FEBRUARY 16, 1970, ARE ARBITRARY AND FAIL TO CONSIDER RELEVANT FACTS CONTAINED IN THE MILITARY RECORD OF THE PLAINTIFF." ON THE BASIS OF THIS DETERMINATION THE COURT ISSUED A JUDGMENT IN THE CASE WHICH IS QUOTED IN PERTINENT PART:

"IT IS ORDERED THAT PLAINTIFF HAVE HIS NAME PLACED ON THE PERMANENT DISABILITY RETIRED LIST OF THE UNITED STATES AIR FORCE AS OF SEPTEMBER 1, 1962, VA CODE 5002 AND 5286, RATED AT 100%, WITH ENTITLEMENTS TO DISABILITY RETIRED PAY EFFECTIVE SEPTEMBER 1, 1962, AND COMPUTED ON THE BASIS OF 10 YEARS AND 26 DAYS LONGEVITY AT THE HIGHEST RANK ATTAINED OF CAPTAIN.

"IT IS ORDERED THAT PLAINTIFF IS GRANTED INTEREST AT THE RATE OF 6% ON ALL DISABILITY RETIREMENT ARREARAGE PAYMENTS FROM DUE DATE.

"IT IS FURTHER ORDERED THAT THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, CALCULATE AND ESTABLISH THE AMOUNT DUE CAPTAIN HARLTON, PURSUANT TO THIS ORDER."

YOU SAY THAT BASED ON THE JUDGMENT THE MEMBER'S RETIRED PAY HAS BEEN RECOMPUTED ON THE BASIS OF THE GRADE OF CAPTAIN WITH OVER 10 YEARS SERVICE FOR BASIC PAY PURPOSES, EFFECTIVE SEPTEMBER 1, 1962. HOWEVER, YOU EXPRESS DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER, BASICALLY FOR THE REASONS THAT THE AWARDING OF RETIRED PAY PURSUANT TO A JUDGMENT IS VALID FOR PAYMENT THROUGH THE DATE OF THE JUDGMENT AND THAT IT IS NOT VALID FOR PAYMENT OF RETIRED PAY FOR PERIODS AFTER THE JUDGMENT IN THE ABSENCE OF APPROPRIATE CORRECTION OF RECORDS UNDER 10 U.S.C. 1552. FURTHER, THAT IN THE ABSENCE OF A PROVISION OF LAW PERMITTING THE PAYMENT OF INTEREST, NO SUCH PAYMENT OF INTEREST IS AUTHORIZED.

SUBSEQUENT TO RECEIPT OF YOUR LETTER, WE WERE INFORMALLY ADVISED BY MR. M. T. MARTIN, EXECUTIVE SECRETARY OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, THAT THE MEMBER HAD AGAIN FILED A PETITION IN AN EFFORT TO HAVE HIS RECORDS CORRECTED BY THE AIR FORCE TO REFLECT HIS STATUS AS SHOWN IN THE COURT ORDER. WE HAVE RECENTLY BEEN INFORMALLY ADVISED THAT THE CORRECTION BOARD ACTED FAVORABLY IN HIS CASE AND BASED ON THEIR FINDINGS AND RECONSIDERATIONS, THE ACTING ASSISTANT SECRETARY OF THE AIR FORCE, BY MEMORANDUM DATED NOVEMBER 27, 1973, ADDRESSED TO THE AIR FORCE CHIEF OF STAFF, DIRECTED THAT THE MEMBER'S RECORDS BE CORRECTED TO CARRY OUT THE JUDGMENT OF THE COURT. IN THIS REGARD IT IS NOTED THAT THE MEMORANDUM INCLUDED, AS A CHANGE, THE FACT THAT THE MEMBER "WAS ORDERED TO EXTENDED ACTIVE MILITARY SERVICE IN THE GRADE OF CAPTAIN ON 31 AUGUST 1962."

THE VOUCHER WHICH ACCOMPANIED THE SUBMISSION PROVIDES THAT THE PAYMENT ($4,339.17) REPRESENTS THE DIFFERENCE IN RETIRED PAY DUE THE MEMBER IN THE GRADE OF CAPTAIN FOR THE PERIOD SEPTEMBER 1, 1962, THROUGH APRIL 30, 1973, AND THE RETIRED PAY PREVIOUSLY PAID FOR THE PERIOD SEPTEMBER 17, 1957, THROUGH APRIL 30, 1973, IN THE GRADE OF FIRST LIEUTENANT, PLUS 6 PERCENT INTEREST OF $245.61.

IN LIGHT OF THE ABOVE-MENTIONED ACTION BY THE CORRECTION BOARD, AS IMPLEMENTED BY MEMORANDUM OF NOVEMBER 27, 1973, THERE NO LONGER APPEARS TO BE ANY QUESTION CONCERNING THE MEMBER'S ENTITLEMENT TO RETIRED PAY IN THE GRADE OF CAPTAIN FOR THE PERIOD SUBSEQUENT TO THE DATE OF JUDGMENT IN HIS CASE AND THE MEMBER MAY BE PAID THE DIFFERENCE BETWEEN RETIRED PAY AS A CAPTAIN FOR THE PERIOD DATED IN THE VOUCHER, LESS RETIRED PAY PREVIOUSLY PAID IN HIS CASE, IF OTHERWISE CORRECT.

WITH RESPECT TO THE MATTER OF THE INTEREST, THE JUDGMENT DATED MAY 16, 1972, PROVIDES, "IT IS ORDERED THAT PLAINTIFF IS GRANTED INTEREST AT THE RATE OF 6 PERCENT ON ALL DISABILITY RETIREMENT ARREARAGE PAYMENTS FROM DUE DATE." SINCE THE "ARREARAGE PAYMENTS" REFERRED TO ARE THOSE RETIRED PAY PAYMENTS WHICH IN THE COURT'S JUDGMENT THE MEMBER WAS ENTITLED TO RECEIVE AND FAILED TO RECEIVE AS OF THE DATE OF JUDGMENT, IT IS OUR VIEW THAT THE INTEREST PROVISION INCLUDED IN THE JUDGMENT PERMITS PAYMENT OF INTEREST ONLY ON THE DIFFERENCE IN RETIRED PAY DETERMINED BY THE COURT TO BE PAST DUE BY THE JUDGMENT, COMPUTED AT THE RATE OF 6 PERCENT THROUGH THE DATE OF THE JUDGMENT, MAY 16, 1972.

ACCORDINGLY, SETTLEMENT MAY BE MADE WITH THE MEMBER ON THE BASIS PREVIOUSLY STATED. THE VOUCHER, WHICH IS RETURNED HEREWITH, SHOULD BE RECOMPUTED ON THE BASIS INDICATED ABOVE.