of Medicine and Surgery and the Bureau replied that there was support for a conclusion that the man was not competent in the past, that confinement would aggravate his disability and that he should be sent to a Veteran's hospital for the insane. The Naval Clemency and Review Board recommended that the Secretary of the Navy approve the findings but the Secretary returned the case to the board for reconsideration in view of the comments of the Bureau of Medicine and Surgery. The Board affirmed its former position. After the man's death his widow asked that his records be corrected to show a discharge other than dishonorable. The Board for Correction of Naval Records concluded that, in view of the divergent views of the various activities within the Navy Department, there was grave doubt as to the man's competence at the time his court-martial was resumed and that there was an injustice in failing to discharge him to a Veteran's Administration facility. The board recommended that his discharge be changed to a general discharge. Held: The action of the Board for Correction of Naval Records goes beyond its legal authority to the extent that it expresses doubt as to the man's competency at the time of his court-martial. That question of competency was raised before the court, its decision was final and conclusive and is not subject to review by the Board for the Correction of Naval Records. However, the inclusion of an opinion which the board is not legally empowered to express will not nullify the entire action and if the Secretary of the Navy should determine, based on the facts found by the Board for the Correction of Naval Records, exclusive of the conclusions as to the man's competency, that the failure to exercise clemency in view of his mental condition was an injustice, there would be no legal objection to approving the decision of the board to change the nature of the discharge. Op JAGN 1954/231. 5 August 1954.

§ 16.8. Non-judicial punishment and letters of reprimand or censure. See Op JAGN 1954/242, NON-JUD PUN § 4.6.

§ 16.9. Disability retirement cases.

See JAGA 1954/8099, RETIRE § 31.1.

See Op JAGN 1954/245, RETIRE § 31.15.

Review by Army Board for Correction of Military Records of disability retirement proceedings establishing percentum of disability, see JAGA 1954/7565, RETIRE § 31.7.

Submission of cases of persons retired for disability to the Army Board for Correction of Military Records where review of their cases prevents them from making timely election of benefits under sec 411 of the Career Compensation Act of 1949, see JAGA 1954/7433, RETIRE § 67.

§ 16.25. Effectiveness, efficiency, and fitness reports.

A Naval officer requested removal of an unsatisfactory fitness report from his record. The report in question was signed by a certain captain and the officer alleged that the captain showed him the report immediately prior to his detachment and that it was in

completed form, signed by himself and the captain, was not torn, and contained no omissions or erasures nor unsatisfactory or unfavorable marks, entries or comments. He maintained that the unsatisfactory report bore almost no resemblance to the report shown him by the captain and he believed that the report shown him was a friendly gesture prior to detachment and was ready for mailing to the Bureau of Naval Personnel. He also alleged that the captain did not indicate that his performance of duty was less than satisfactory nor that he intended to award a bad fitness report or intended to change a favorable report. The Board for Correction of Naval Records found that the officer was unaware that he had received the unsatisfactory report until he received a letter from the Chief of Naval Personnel which forwarded the report to him for a statement; that the report appeared to be torn in half and mended with transparent tape, giving the impression that it was accidentally torn and pasted together to form a complete and original whole; that the report had numerous erasures; that pertinent regulations required that an unsatisfactory report be referred to the officer reported on for a statement before it was forwarded for filing and that these regulations were not complied with in this case. Based on these findings the Board concluded that the unsatisfactory report should never have been accepted by the Bureau of Naval Personnel due to its mutilated and altered condition and numerous discrepancies, including erasures without initials, and that it should have been returned to the reporting senior for a thorough explanation and submission of a new unmutilated report but that due to the captain's death such action was no longer possible and that the only way to correct the injustice was to have the report physically removed from the officer's record. Held: In the absence of a finding that the officer's allegations were true or that the report constituted other than an accurate appraisal of the officer's performance of duty, the main basis for the board's conclusion that an injustice was suffered which can be corrected only by the physical removal of the fitness report is that the report was not referred to the officer for a statement prior to being forwarded for filing. If the Secretary of the Navy determines that an injustice has been suffered by reason of this there is no legal objection to his approving the board's recommendation since the Secretary of the Navy is authorized to correct an officer's record by physically removing documents therefrom and the function of making the final determination as to whether the facts in any case will merit a correction is vested solely in the Secretary of the Navy. (Citing sec 207 of the Legislative Reorganization Act of 1946, as amended (65 Stat 655) 5 USC 191a; JAG: II:1:LRH:wln of 27 Jan 1954.) Op JAGN 1954/237. 20 August

1954.

§ 19.

§ 19.1. Generally.

Findings and Recommendations

A Naval officer was ordered to be brought to trial by general court-martial on charges of stealing and embezzling government property. Investigation by both the prosecution and defense in

preparation for trial revealed that the value of the property was only about $1.10. This amount was considered trivial, and a nolle prosequi was entered. The officer's record showed no disciplinary action, but four items of correspondence relating to the recommendation for trial, including a complete copy of the proposed charges and specifications and a letter relating to the facts of the case, were filed in his selection board jacket. The Board for Correction of Naval Records determined that his record should be corrected by removing the four items and any other references to the recommendation for court-martial from his selection board jacket. The Board determined that the material so removed should be filed in his correspondence file. Included among the findings of the Board was a finding that in view of the trivial nature of the alleged offense, the properly constituted naval authorities were remiss in their official duties in failing to thoroughly investigate all the facts before ordering trial. The Board concluded its decision with the statement that in order that the corrective action might not be nullified, the record of proceedings of the Board should be returned to it, with no reference thereto being made in the officer's official records. Held that:

since documents may be removed from an officer's record when necessary to effect a correction of the record or the removal of an injustice, clearly a document may be transferred from an officer's official record to his correspondence file. The decision of the Board was supported by adequate findings of fact, and if the Secretary of the Navy concludes that an injustice exists there is no legal objection to his approval of the Board's action. (Citing sec 207 of the Legislative Reorganization Act of 1946, 5 USC 191a.) -the Secretary should disapprove the finding that naval authorities were remiss in their duties, since such a conclusion is not supported by appropriate findings of fact. The conclusion is based only on an unstated inference that the triviality of the alleged offense was not discovered until just prior to the trial. The Board made no findings with respect to the extent of any investigation by the properly constituted authorities upon which a conclusion that such authorities did not act with due diligence can be based. There are many possible reasons why the triviality of the alleged offense might not have become apparent in the preliminary or pretrial investigation and the Board negatived none of these possibilities in its findings.

- the Secretary should disapprove that part of the decision which directs removal of any correspondence regarding or reference to the recommendation for trial other than the four items specifically mentioned, since it is conceivable that some references to the incident in question may legitimately have been made in a fitness report covering the officer's performance of duty or that mention of the incident may in some form be legitimately included in his selection board jacket. In the absence of any findings to provide specific support for the removal of any such additional material, a blanket directive is objectionable.

—since (1) the Board has recommended the removal of the

material in question from the officer's official record as defined by the Bureau of Naval Personnel Manual but has not recommended its complete removal from the files of the Bureau of Naval Personnel for sequestration in the confidential files of the Board, and (2) the material in question should be flagged in some manner to prevent its possible reinsertion in the selection board jacket upon a subsequent screening of the officer's correspondence file, the Secretary should direct that a copy of the record of the Board's proceedings be filed with the material in question in the officer's correspondence file, although the Board stated that the record of proceedings should be returned to the Board with no reference thereto being made in the official record of the officer. Op JAGN 1954/238. 20 August 1954.

§ 19.41. Release or settlement of claim based on correction.

An officer was released from active duty on 18 January 1947, not by reason of physical disability. As a result of action taken by the Army Disability Review Board, approved by direction of the President on 28 September 1951, holding that he was physically incapacitated for active duty he was certified for retirement benefits commencing with 1 October 1951. The matter was brought before the Army Board for Correction of Military Records under sec 207 of the Legislative Reorganization Act of 1946, as amended, 5 USC 191a, and it was directed that his records be corrected to show that he became permanently incapacitated for active service as a result of an incident of the service in line of duty and that he was relieved from active duty by reason of physical disability on 18 January 1947 and certified as eligible for retirement pay benefits effective 1 October 1951. Section 207 (c) of the above cited statute provides with respect to correction of military records that acceptance by the claimant of any settlement made pursuant to the Act shall constitute a complete release by the claimant of any claim against the United States on account of such correction of records. The officer accepted pay effective as of 1 October 1951 and in doing so signed a certificate that he agreed that acceptance of the settlement constituted a complete release of any claim against the United States by reason of the correction of his military records. He subsequently sought pay for the period from 18 January 1947 to 30 September 1951. Held: In view of the provisions of sec 207 (c) of the above cited Act, making acceptance of a settlement a complete release of any claim based on the correction of records, there is no authority to allow the officer's claim for additional retroactive retired pay based on the correction of his records under that statute. MS Comp Gen B-12116, 34 Comp Gen 188. 18 October 1954.

An Army officer was originally released from active duty on 3 September 1952, "not by reason of physical disability", and upon such release he was paid a lump sum payment of 45 days' accrued leave. Subsequently, his records were corrected to show, inter alia, that he was retained on active duty from 4 to 30 September 1952, that he was relieved from active duty by reason of physical disability on 30 September and placed on the permanent retired list

effective as of that date with entitlement to retirement pay from 1 October 1952. In 1953 the Finance Center forwarded the officer a claims certificate covering retirement pay from 1 October 1952 to 31 October 1953 and a form on which to make claim for active duty pay and allowances from 4 to 30 September 1952. The claims certificate contained the statement "I . . . do agree that acceptance of this settlement shall constitute complete release by me of any claim against the United States by reason of the correction of my military records." The officer executed both claims and returned them to the Finance Center. Payment of retirement pay was made but payment of active duty pay and allowances was denied because of the claimant's acceptance of the settlement and because he was considered to have been on leave during the period 4 to 30 September 1952 and to have been compensated for accrued leave at the time of separation. Held: Since the officer's military records have been corrected, under authority granted by Section 207(a) of the Legislative Reorganization Act of 1946, as amended by the act of 25 October 1951, 65 Stat 655, 5 USC 191a, to show that he was retained on active duty from 4 to 30 September 1952, and since the statute makes such corrections final and conclusive, in the absence of fraud, he must be considered to have been in an active duty status through 30 September 1952. Consequently, unless his right to active duty pay was affected by his signature of the claims certificate and acceptance of the payment covering retired pay, he is entitled to the payment of active duty pay and allowances for the period 4 to 30 September 1952 and to a lump sum payment for any unused accrued leave to his credit on 30 September 1952 for which he has not been paid. Section 207 (c) of the cited Legislative Reorganization Act of 1946 provides that the acceptance of any settlement made pursuant to the statute shall constitute a complete release by the claimant of any claim against the United States on account of such correction of records. However, in the present case the claims certificate setting forth the amount due to officer as retroactive retired pay was sent to him with a form which he executed for the purpose of claiming active duty pay. Furthermore, he signed both the claims certificate and his claim for active duty pay on the same day and returned them to the Finance Center at, or about, the same time. In such circumstances, his acceptance of the payment of the retirement pay portion of the settlement, may not be considered an acceptance of settlement as contemplated by the statute so as to constitute it a release of his claim against the United States on account of the correction of his military records. The fact that the claim form for the active duty pay was sent with the settlement form for the retired pay shows that the retired pay was not offered or intended as a settlement of all claims based on the correction of the records. (Cf. B-121116, 34 Comp Gen 188, 4 Dig Ops No. 3, Records $ 19.41.) MS Comp Gen B-121445, 34 Comp Gen 456. 21 March 1955.

Following a decision of a court-martial authority not to court