B-140314, APR. 13, 1961

B-140314, APR. 13, 1961

TO MR. HERBERT B. SHORTER, SR.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1961, AND ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL RETAINER PAY FOR THE PERIOD FROM FEBRUARY 1, 1940, TO APRIL 28, 1947.

YOUR CLAIM (WHICH WAS INCLUDED IN A CLAIM FOR A LONGER PERIOD) WAS NOT CONSIDERED BY OUR CLAIMS DIVISION BECAUSE IT WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL APRIL 29, 1957, WHICH WAS MORE THAN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED. THAT ACTION WAS IN ACCORDANCE WITH THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A. YOU SAY THAT WHEN THIS BACK PAY WAS FIRST AUTHORIZED YOU RECEIVED CARDS (PRESUMABLY FROM THE ADMINISTRATIVE OFFICE CONCERNED) STATING THAT "NO ACTION IS REQUIRED TO RECEIVE THIS PAY.' ALSO, YOU STATE THAT THE DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS SEEMS TO THINK THAT THIS BACK PAY SHOULD BE PAID TO YOU, AND THAT IN VIEW OF THE ACTION TAKEN BY THAT BOARD YOU BELIEVE THAT CONSIDERATION NOW SHOULD BE GIVEN YOUR CLAIM.

THE ACT OF OCTOBER 9, 1940, PROVIDES THAT "EVERY" CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE- - WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE--- "SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.'

SUCH PROVISIONS OF LAW CONSTITUTE AN ABSOLUTE BAR TO OUR CONSIDERATION OF ANY CLAIM UNLESS SUCH CLAIM IS FILED IN OUR OFFICE WITHIN THE 10-YEAR LIMITATION PERIOD. IF A CLAIM IS SUBMITTED TO ANOTHER GOVERNMENT AGENCY AND IS NOT PAID, THE PERSON CONCERNED MUST FILE A CLAIM WITH OUR OFFICE WITHIN THE 10-YEAR PERIOD, FOR THE AMOUNT DUE, IN ORDER TO AVOID THE BAR OF THE STATUTE. THE FACT THAT HE IS UNAWARE THAT HE IS REQUIRED TO FILE CLAIM HERE IS IMMATERIAL SINCE THE STATUTE MAKES NO EXCEPTIONS IN SUCH CASES. IT IS WELL ESTABLISHED THAT THE STATUTORY PERIOD DOES NOT CEASE TO RUN DURING THE PERIOD A CLAIM IS BEING CONSIDERED BY ANOTHER AGENCY OF THE GOVERNMENT, OR AS A RESULT OF SUCH ADMINISTRATIVE CONSIDERATION. SEE 32 COMP. GEN. 267. COMPARE DECISIONS BY THE U.S. COURT OF CLAIMS IN THE CASES OF TAN V. UNITED STATES, 102 F.SUPP. 552, AND ARRIBAS V. UNITED STATES, 110 F.SUPP. 267. IN THE CASE OF KAVANAGH V. NOBLE, 332 U.S. 535, THE SUPREME COURT OF THE UNITED STATES STATED THAT "SUCH PERIODS ARE ESTABLISHED TO CUT OFF RIGHTS, JUSTIFIABLE OR NOT, THAT MIGHT OTHERWISE BE ASSERTED, AND THEY MUST BE STRICTLY ADHERED TO BY THE JUDICIARY.'

YOUR CLAIM FILED HERE, WHICH COVERED THE PERIOD FROM FEBRUARY 1, 1940, TO SEPTEMBER 30, 1949, IS BASED ON THE ACT OF AUGUST 10, 1946, 60 STAT. 994, WHICH GRANTED RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. THE RETROACTIVE PORTION OF YOUR CLAIM ACCRUED ON THE DATE OF ENACTMENT OF THAT ACT. YOUR RIGHT TO INCREASED RETAINER PAY THEREAFTER ACCRUED ON A DAY TO DAY BASIS AND WAS SUBJECT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940. IT APPEARS THAT IN 1947, YOU MADE INQUIRY AS TO YOUR RIGHTS UNDER THE 1946 ACT BUT THAT DUE TO THE THEN CURRENT INTERPRETATION OF THAT ACT, NO INCREASED RETAINER PAY WAS PAID TO YOU. IN THE CASE OF SANDERS V. UNITED STATES, 120 CT.CL. 501 (1951) THE COURT HELD THAT SUCH INTERPRETATION WAS ERRONEOUS. WHILE IT IS UNFORTUNATE THAT YOU WERE NOT AWARD OF THAT CASE OR OF OUR DECISION TO FOLLOW IT (32 COMP. GEN. 159, 1952), THE RECORD INDICATES THAT YOU DID NOT FILE A CLAIM FOR INCREASED RETAINER PAY UNTIL AFTER RECEIPT OF LETTER OF DECEMBER 19, 1956, FROM THE U.S. NAVY FINANCE CENTER, ADVISING YOU OF YOUR RIGHTS. THE CLAIM FORWARDED TO THE FINANCE CENTER WAS RECEIVED HERE ON APRIL 29, 1957. SINCE YOUR CLAIM WAS NOT ACTUALLY RECEIVED IN THIS OFFICE UNTIL THE LATTER DATE, THE PORTION OF YOUR CLAIM FOR ADDITIONAL RETAINER PAY FOR THE PERIOD PRIOR TO APRIL 29, 1947, WAS PROPERLY DENIED UNDER THE PROVISIONS OF THAT STATUTE.

SECTION 1552 OF TITLE 10, U.S.C. PROVIDES, IN PERTINENT PART, THAT:

"/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 APPEARS THAT THE BOARD FOR CORRECTION OF NAVAL RECORDS RECENTLY REVIEWED YOUR NAVAL RECORD AND IT IS REPORTED THAT THE SECRETARY OF THE NAVY APPROVED THE DECISION AND THE RECOMMENDATION OF THE BOARD AS FOLLOWS:

"DECISION:

"IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S PAY RECORD AS OF 1 FEBRUARY 1940 BE CORRECTED TO SHOW HIS ENTITLEMENT TO PAY FROM THAT DATE AT THE RATE TO WHICH HE WAS ENTITLED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 10, 1946 AND THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF CHRISTOPHER C. SANDERS V. THE UNITED STATES, 120 C.CLS. 501.

"RECOMMENDATION:

"THE BOARD RECOMMENDS THAT THE DEPARTMENT OF THE NAVY PAY TO THE PETITIONER, OR OTHER PROPER PARTY, OR PARTIES, ALL MONIES LAWFULLY FOUND TO BE DUE AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.'

UNDER THE PROVISIONS OF 10 U.S.C. 1552, THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO "CORRECT" MILITARY RECORDS AND IT IS OUR VIEW THAT ACTION UNDER THAT SECTION, IF IT IS TO GIVE RISE TO A RIGHT TO THE PAYMENT OF MONEY, MUST, WITHOUT EXCEPTION, RESULT IN A CHANGE OF FACTS AS SET OUT IN THE ORIGINAL RECORD, OR AN ADDITION TO, OR A DELETION OF SOME OF SUCH FACTS, SUCH CHANGE, ADDITION, OR DELETION BEING NECESSARY TO ESTABLISH A PROPER BASIS TO SUPPORT THE PAYMENT IN QUESTION. RESTATEMENT OF FACTS ALREADY IN A MILITARY RECORD DOES NOT CONSTITUTE A CORRECTION OF THAT RECORD WITHIN THE MEANING OF 10 U.S.C. 1552.

THE CORRECTION BOARD'S "DECISION" IN YOUR CASE MADE ABSOLUTELY NO CHANGE IN THE FACTS OF RECORD UPON WHICH YOUR RIGHT TO THE ADDITIONAL RETAINER PAY DEPENDS AND ITS ACTION AMOUNTED TO NOTHING MORE THAN A CONCLUSION THAT BY DIRECTING THAT YOUR RECORD BE "CORRECTED" IN A MANNER WHICH DID NOT CONSTITUTE A CORRECTION AND, IN FACT, MADE NO CHANGE IN THAT RECORD, THE BAR OF THE ACT OF OCTOBER 9, 1940, WAS REMOVED. OUR CONCLUSION THAT A PURPORTED CORRECTION OF THIS TYPE HAS NO LEGAL SIGNIFICANCE AND IS OF NO EFFECT (SEE 39 COMP. GEN. 178, 180) WAS SUSTAINED IN THE RECENT CASES OF HAISLIP V. UNITED STATES, CT.CL. NO. 442-59, LAMB V. UNITED STATES, CT.CL. NO. 466-59, AND SIMON V. UNITED STATES, CT.CL. NO. 439-59, DECIDED JANUARY 18, 1961.

UPON THE RECEIPT OF YOUR CLAIM HERE YOU WERE ALLOWED THE SUM OF $799.33 REPRESENTING ADJUSTED RETAINER PAY FOR THE PERIOD APRIL 29,1947, THROUGH SEPTEMBER 30, 1949, A PERIOD NOT BARRED BY THE ACT OF OCTOBER 9, 1940. EXPLAINED ABOVE, WE ARE WITHOUT AUTHORITY TO CONSIDER THAT PART OF YOUR CLAIM FOR THE PERIOD PRIOR TO APRIL 29, 1947.