Denton v. United States

204 Ct. Cl. 188, 1974 U.S. Ct. Cl. LEXIS 122, 1974 WL 21682
CourtUnited States Court of Claims
DecidedApril 17, 1974
DocketNo. 319-72
StatusPublished
Cited by41 cases

This text of 204 Ct. Cl. 188 (Denton v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denton v. United States, 204 Ct. Cl. 188, 1974 U.S. Ct. Cl. LEXIS 122, 1974 WL 21682 (cc 1974).

Opinion

SkeltoN, Judge,

delivered the opinion of the court:

On August 19,1944, the plaintiff, Marion G. Denton, while [191]*191holding the rank of major, was released from active duty and dismissed as an officer in the United States Army Air Corps Eeserve, pursuant to a general court-martial. Nine years later, on September 24, 1953, he applied to the Board for Correction of Military Records for a correction of his military record. Item seven of the plaintiff’s application contained his complete request for relief, and read in full as follows:

7. I request the following correction of record (State the exact record for which a correction is requested and in what particular)
Vacation of findings and sentence of general court martial convened at Mitchell Field, New York, 27 September 1943, pursuant to Special Orders 234, 24 August 1943, and 266, 25 September 1943, Headquarters First Air Force.

The Correction Board denied the application.

In 1963, the plaintiff again requested the Air Force Board for the Correction of Military Records to correct his military records. The application before the Correction Board in 1963, including the request for relief, was exactly the same as the application filed by the plaintiff in 1953, which is quoted above. The Board conducted a hearing on May 1, 1963. Thereafter, pursuant to recommendations by the Chairman of the Air Force Board for the Correction of Military Records, the Assistant Secretary of the Air Force, on March 19, 1964, directed that the findings and sentence of plaintiff’s court-martial be ‘‘set aside so that all rights, privileges, and property of which said member [plaintiff] may have been deprived by virtue of the findings, sentence and execution thereof, be restored.” He also directed that plaintiff’s military records be corrected to show that the plaintiff was released from extended active duty d/m to demobilization effective September 2,1945; and he ordered that all necessary and appropriate action be taken in consonance with his directive.

On November 30, 1965, the plaintiff again applied for correction of his military records. As may be seen below, this application requested relief that was new and different [192]*192from that requested in 1953 and 1968. His 1965 application requested relief as follows:

The order of the Board of 19 March 1964 providing that “* * * all rights, privileges, and property of which said member may have been deprived * * * be restored,” be specifically amended to provide service beyond 2 Sept. 1945, and on determination of such date terminal promotion to Lieut. Colonel be provided, and to Colonel on 1 April 1953, and to Brigadier General on 30 November 1956.
Pay
1. Active duty pay from 19 Aug 1944 to separation date.
2. Drill pay as Lieut. Colonel from separation date to 1 April 1953.
3. Drill pay of Colonel from 1 April 1953 (date all reserve officers were tendered new commissions) to 29 November 1956.
4. Accrued leave of 90 days on determined separation date.
Points
All points eamable for retirement from separation date to 29 November 1956.
* ij: * * #

It is important to note that the relief requested in this 1965 application was not requested in plaintiff’s 1953 or 1963 applications as it could have been.

After a hearing, the Board recommended that corrections be made to the plaintiff’s military records. On October 4, 1966, the Undersecretary of the Air Force directed that plaintiff’s records be corrected as follows:

MEMORANDUM FOR THE CHIEF OF STAFF
■Having received and approved the recommendations of the Air Force Board for the Correction of Military Records and under authority of Section 1552, Title 10, United States Code (70A Stat. 116), it is directed that:
1. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was not released from extended active duty on 2 September 1945.
[193]*1932. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was tendered and placed on 90 days terminal leave effective 2 September 1945.
3. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was eligible for promotion under the terminal leave promotion policies in effect and promoted to grade of 'Lt. Colonel, Air Reserve, Officer Reserve Corps, effective 1 November 1945.
4. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was relieved from extended active duty due to demobilization, effective 2 September 1945 and reverted to inactive status on 2 December 1945.
5. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was promoted to grade of Colonel, Reserve of the Air Force, effective 31 March 1953.
6. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he was tendered an indefinite term appointment as Colonel, Reserve of the Air Force on 1 April 1953, and that he accepted the appointment on the same date.
7. The pertinent military records of the Department of the Air Force, relating to MARION G. DENTON, 0-150 432, be corrected to show that he accrued 35 Inactive duty points and 15 Gratuitous points for a total of 50 points during each of the following periods; and that each period is a satisfactory year of Federal service for retirement purposes:
1 July 1949 to 30 June 1950
1 July 1950 to 30 June 1951
1 July 1951 to 30 June 1952
1 July 1952 to 30 June 1953
1 July 1953 to 30 June 1954
1J 1954 to 30 June 1955
1 July 1955 to 30 June 1956
8. Upon submission of an appropriate application, the pertinent military records of the Department of the Air Force relating to MARION G. DENTON, 0-150 [194]*194432, be corrected to show that he retired in grade of Colonel, Eeserve of the Air Force, under the provisions of Section 1331, Title 10, USC, on 30 November 1956, with entitlement to retired pay effective 1 December 1956.
9. All necessary and appropriate action be taken in consonance with this Directive.

On April 25,1967, the plaintiff received $42,511.57 as payment for sums due him as a result of the corrections to his records. Since October 1966, he has been receiving monthly retirement checks.

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Bluebook (online)
204 Ct. Cl. 188, 1974 U.S. Ct. Cl. LEXIS 122, 1974 WL 21682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denton-v-united-states-cc-1974.