B-181904, DEC 24, 1974

B-181904, DEC 24, 1974

CLAIM FOR ACTIVE DUTY PAY FROM DATE OF DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS TO DATE CLAIMANT WOULD OTHERWISE HAVE RETIRED AND FOR RETIREMENT PAY THEREAFTER BASED ON COURT ORDERED CHANGE IN CHARACTERIZATION OF DISCHARGE TO GENERAL IS DENIED SINCE COURT OF APPEALS DECISION DID NOT RENDER DISCHARGE "NULL AND VOID" BUT MERELY DIRECTED A CHANGE IN THE CHARACTER OF THE DISCHARGE NOT A CHANGE IN ITS DATE. WITHOUT CHANGE IN THE DATE OF DISCHARGE NO ADDITIONAL RIGHTS TO ACTIVE DUTY PAY ACCRUED AND SINCE CLAIMANT HAD SERVED ON ACTIVE DUTY INSUFFICIENT TIME FOR RETIREMENT, HE IS NOT ENTITLED TO RETIRED PAY.

CLAIM OF RAYMOND E. ROBINSON - ARREARS OF PAY:

THIS ACTION IS IN RESPONSE TO AN APPEAL OF GENERAL ACCOUNTING OFFICE TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED MARCH 7, 1974, WHICH DISALLOWED THE CLAIM OF RAYMOND E. ROBINSON, FORMER CHIEF WARRANT OFFICER, UNITED STATES ARMY, FOR ACTIVE DUTY PAY AND ALLOWANCES AND RETIRED PAY FOR PERIODS SUBSEQUENT TO JUNE 24, 1955, THE DATE OF HIS DISCHARGE FROM THE ARMY.

FROM THE RECORD IT APPEARS THAT ON JUNE 24, 1955, FOLLOWING HIS VOLUNTARY RESIGNATION, MR. ROBINSON WAS DISCHARGED FROM THE ARMY UNDER OTHER THAN HONORABLE CONDITIONS. ON OCTOBER 25, 1972, THE UNITED STATES COURT OF APPEALS HELD THAT THE ARMY DISCHARGE REVIEW BOARD'S REFUSAL TO ALTER THE CHARACTER OF CLAIMANT'S DISCHARGE WAS ARBITRARY AND CAPRICIOUS AND REMANDED THE CASE TO THE UNITED STATES DISTRICT COURT FOR, INTER ALIA, AN APPROPRIATE ORDER INSURING THAT CLAIMANT WOULD NOT BE GIVEN A DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS, I.E., AN HONORABLE OR GENERAL DISCHARGE. ROBINSON V RESOR, 469 F.2D 944 (D.C. CIR., 1972). AS A RESULT OF THIS DECISION AND AN APPROPRIATE ORDER OF THE DISTRICT COURT, THE SECRETARY OF THE ARMY ON SEPTEMBER 10, 1973, DIRECTED THAT CLAIMANT BE ISSUED A GENERAL DISCHARGE. HOWEVER, THE SECRETARY MADE NO CHANGE IN THE DATE OF CLAIMANT'S DISCHARGE, NOR DID THE DECISION OF THE COURT OF APPEALS OR THE ORDER OF THE DISTRICT COURT APPEAR TO DIRECT ANY CHANGE IN SUCH DATE.

SUBSEQUENT TO THE CHANGE IN THE CHARACTER OF HIS DISCHARGE, CLAIMANT FILED A CLAIM WITH THE ARMY FOR THE ACTIVE DUTY PAY THAT WOULD HAVE ACCRUED BETWEEN THE DATE OF THE DISCHARGE AND WHAT WOULD HAVE BEEN HIS RETIREMENT DATE HAD HE BEEN ALLOWED TO CONTINUE IN SERVICE, AND FOR RETIREMENT PAY THEREAFTER. THE RECORD SHOWS THAT MR. ROBINSON WAS PAID $324.12 BY THE ARMY REPRESENTING MUSTERING-OUT PAYMENT AND TRAVEL ALLOWANCE INCIDENT TO THE CHANGE IN HIS DISCHARGE. THE CLAIM FOR ACTIVE DUTY PAY AND RETIRED PAY WAS FORWARDED TO THIS OFFICE, AS A DOUBTFUL CLAIM, WHICH ON MARCH 7, 1974, ISSUED A CERTIFICATE OF SETTLEMENT DENYING THE CLAIM AS FOLLOWS:

"ACCORDINGLY, SINCE YOU WERE DISCHARGED FROM ACTIVE DUTY ON JUNE 24, 1955 AND WERE NOT ELIGIBLE FOR RETIREMENT ON THAT DATE, IN THE ABSENCE OF EVIDENCE THAT YOU WERE NOT PROPERLY PAID FOR YOUR ACTIVE DUTY SERVICE TO THAT DATE, THERE ARE NO ADDITIONAL AMOUNTS DUE YOU."

CLAIMANT, THROUGH HIS ATTORNEY, REQUEST RECONSIDERATION OF THE MARCH 7 SETTLEMENT ON THE GROUNDS THAT THE GENERAL DISCHARGE WAS NOT JUSTIFIED AS REQUIRED BY THE COURT OF APPEALS DECISION AND BECAUSE "THE DATING BACK OF THE GENERAL DISCHARGE IS HIGHLY IRREGULAR." FURTHER, HE ASSERTS THAT THE DECISION OF THE COURT OF APPEALS RENDERED THE ORIGINAL DISHONORABLE DISCHARGE NULL AND VOID SO THAT CLAIMANT, IN EFFECT, CONTINUED ON ACTIVE DUTY UNTIL HE WOULD ORDINARILY HAVE RETIRED THUS, ENTITLING HIM TO ACTIVE DUTY PAY AND RETIRED PAY SUBSEQUENT TO THE DATE OF HIS DISCHARGE.

AS WAS INDICATED ABOVE, THE DECISION OF THE COURT OF APPEALS IN ROBINSON V. RESOR, SUPRA, DOES NOT SUPPORT THESE ASSERTIONS. THAT DECISION DOES NOT STATE THAT THE DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS WAS "NULL AND VOID" AND, IN ACTUALITY, THE FACT OF THE CLAIMANT'S DISCHARGE APPEARS TI HAVE BEEN ACCEPTED BY THE COURT. THE FOCUS OF THE COURT WAS, HOWEVER, ON THE CHARACTER OF CLAIMANT'S DISCHARGE AS EVIDENCED BY ITS HOLDING:

"WE THINK THERE WAS LACKING IN THIS CASE BOTH PROCEDURAL DUE PROCESS AND SUBSTANTIVE JUSTICE, AND THEREFORE THAT THE ULTIMATE DECISION OF THE ARMY REVIEW BOARD DECLINING TO ALTER THE CHARACTER OF APPELLANT ROBINSON'S DISCHARGE WAS ARBITRARY AND CAPRICIOUS. * * *" ROBINSON V. RESOR, SUPRA, AT 949.

IN ANY EVENT UNDER THE AUTHORITY OF 10 U.S.C. 1553 (1970) THE CORRECTION OF ARMY DISCHARGES IS A MATTER VESTED IN THE SECRETARY OF THE ARMY. CF. B - 161131, APRIL 18, 1967. WHETHER THE GENERAL DISCHARGE EFFECTIVE JUNE 24, 1955, ISSUED TO CLAIMANT AS A RESULT OF HIS COURT ACTION WAS ADEQUATELY JUSTIFIED IS, THEREFORE, NOT A MATTER SUBJECT TO REVIEW BY THIS OFFICE. SEE B-157381, SEPTEMBER 9, 1961.

SINCE THE ACTION OF THE SECRETARY OF THE ARMY ONLY CHANGED THE NATURE OF CLAIMANT'S DISCHARGE BUT NOT ITS DATE, UPON THE PRESENT RECORD NO LEGAL BASIS EXISTS FOR THIS OFFICE TO AUTHORIZE THE PAYMENT OF ACTIVE DUTY PAY TO MR. ROBINSON SUBSEQUENT TO JUNE 24, 1955. FURTHER, SINCE AT THE TIME OF HIS DISCHARGE HE HAD ACTIVE DUTY SERVICE OF LESS THAN 20 YEARS (10 YEARS, 4 MONTHS AND 5 DAYS), AND INELIGIBLE FOR RETIREMENT, HE IS NOT ENTITLED TO RETIRED PAY. SEE 10 U.S.C. 3911. ACCORDINGLY, THE MARCH 7, 1974 SETTLEMENT IS SUSTAINED.