B-196570.OM, APR 4, 1980

B-196570.OM, APR 4, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF LT. BERNARD D. SMITH, A MEMBER OF THE UNITED STATES COAST GUARD WHO IS CLAIMING ATTORNEY FEES AND MEDICAL EXPENSES RELATIVE TO THE CORRECTION OF HIS MILITARY RECORDS.

THE BOARD FOR CORRECTION OF MILITARY RECORDS CORRECTED THE MEMBER'S RECORDS TO SHOW, AMONG OTHER THINGS, THAT HE IS ENTITLED TO PAY, ALLOWANCES, AND PRIVILEGES FROM THE DATE OF SEPARATION FROM ACTIVE DUTY AS IF HE HAD REMAINED ON ACTIVE DUTY. ADJUSTMENTS ARE TO BE MADE FOR HIS EARNINGS DURING THE INTERIM AFTER ALLOWING CREDIT FOR OUT-OF-POCKET EXPENSES RESULTING FROM HIS SEPARATION FROM ACTIVE DUTY.

10 U.S.C. 1552(A) STATES IN PERTINENT PART THAT THE SECRETARY OF THE TREASURY MAY CORRECT ... ANY MILITARY RECORD OF THE COAST GUARD. U.S.C. 1552(C) STATES THAT THE DEPARTMENT CONCERNED MAY PAY A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS.

IN THE CASE OF RAY V. UNITED STATES, 197 CT.CL. 10, THE COURT EXPRESSLY CAUTIONED AGAINST UNLIMITED APPLICATION OF 10 U.S.C. 1552 TO PROVIDE RELIEF FROM ANY PERCEIVED WRONG FLOWING FROM CORRECTION OF ERRONEOUS RECORDS. IT DID NOT INTEND TO "INTIMATE ANY ROVING DELEGATION TO US OR ANYONE ELSE, TO REMEDY THE INDIRECT CONSEQUENCES OF AN ERRONEOUS RECORD."

WHILE THE MEMBER'S CLAIM FOR ATTORNEY'S FEES IS NOT PAYABLE, A QUESTION ARISES AS TO WHETHER MEDICAL EXPENSES CAN BE CONSIDERED A PECUNIARY BENEFIT, OR THE INDIRECT CONSEQUENCE OF AN ERRONEOUS RECORD.

ACCORDINGLY, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

THE ADJUDICATOR HANDLING THIS CASE IS MS. MARCIA BROWN, EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE ISSUE PRESENTED IS WHETHER A MEMBER'S MEDICAL EXPENSES, INCURRED AFTER DATE OF SEPARATION FROM ACTIVE DUTY, ARE PECUNIARY BENEFITS WITHIN THE MEANING OF 10 U.S.C. SEC. 1552(C) THUS PAYABLE TO THE MEMBER AFTER CORRECTION OF HIS MILITARY RECORD RESTORING HIM TO ACTIVE DUTY, OR WHETHER THEY ARE AN "INDIRECT CONSEQUENCE OF AN ERRONEOUS RECORD" AS STATED IN RAY V. UNITED STATES, 197 CT.CL. 1, 453 F.2D 754 (1972), AND THEREFORE, NOT PAYABLE TO THE MEMBER.

SUBSECTION 1552(A) OF TITLE 10, U.S.C. (1976), AUTHORIZES THE CORRECTION OF MILITARY RECORDS WHEN NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUBSECTION 1552(C) PROVIDES THAT UPON A CORRECTION OF RECORDS, THE DEPARTMENT CONCERNED MAY PAY FROM APPLICABLE CURRENT APPROPRIATIONS, "A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS OR OTHER PECUNIARY BENEFITS."

LIEUTENANT SMITH CLAIMS THE MEDICAL EXPENSES HE INCURRED FOR HIMSELF AND HIS FAMILY AFTER HIS SEPARATION FROM ACTIVE DUTY. SINCE THESE ARE THE KIND OF EXPENSES TO WHICH HE WOULD NOT HAVE BEEN PUT IF HE WERE ON ACTIVE DUTY, HE MAY PROPERLY CLAIM THESE EXPENSES PROVIDED THEY CAN BE DEFINITELY ASCERTAINED AND REDUCED TO A SUM CERTAIN. LIEUTENANT COLONEL LOUIS D. GADDINI, AUS, B-195558, DECEMBER 14, 1979, AT P. 7, AND CASES CITED THEREIN.

IN RAY, THE COURT EXPRESSLY CAUTIONED AGAINST UNLIMITED APPLICATION OF 10 U.S.C. SEC. 1552 TO PROVIDE RELIEF FROM ANY PERCEIVED WRONG FLOWING FROM CORRECTION OF ERRONEOUS RECORDS. IT DID NOT INTEND TO "INTIMATE ANY ROVING DELEGATION TO US OR ANYONE ELSE, TO REMEDY THE INDIRECT CONSEQUENCES OF AN ERRONEOUS RECORD." IN THAT CASE "PECUNIARY BENEFITS" WERE RESTRICTED TO TAX WITHHOLDINGS THE CLAIMANT WOULD HAVE BEEN ENTITLED TO HAD THE RECORDS BEEN CORRECTED INITIALLY, AND NOT AN AMOUNT WHICH WOULD ADJUST CLAIMANT'S OVERALL TAX LIABILITY DURING THE PERIOD HE WAS SEPARATED FROM ACTIVE DUTY. THE COURT STATED THAT THE CASE WAS "SIMPLY A MATTER OF CORRECTING THE PAY ACCOUNT BETWEEN THE SERVICEMAN AND THE UNITED STATES." WE BELIEVE THIS CASE DOES NOT RESTRICT THE PAYMENT OF MEDICAL EXPENSES INCURRED DURING THE INTERIM PERIOD WHEN LIEUTENANT SMITH WAS DEPRIVED OF FREE MILITARY MEDICAL CARE.