B-160808, AUG 10, 1971
Highlights
PAYMENT OF THE SUBJECT CLAIMS MAY NOT BE AUTHORIZED UNTIL SUCH TIME THERE IS FURNISHED THE CLAIMS DIVISION OF GAO ACCEPTABLE EVIDENCE OF INFORMATION SHOWING THE AMOUNT EACH OFFICER EARNED FROM CIVILIAN EMPLOYMENT DURING THE PERIOD COVERED BY THE DECISION BY THE COURT OF CLAIMS INCIDENT TO THEIR DECISION OF JULY 7. THE OFFICERS WERE ORIGINALLY RETIRED EFFECTIVE JULY 1. JUDGMENT WAS ENTERED BY THE COURT ON JULY 7. THE OFFICERS HAVE BEEN PAID THOSE AMOUNTS. THE BOARD FOR CORRECTION OF NAVAL RECORDS DIRECTED THAT THE OFFICERS' NAVAL RECORDS BE CORRECTED TO SHOW THAT THEY WERE NOT RETIRED ON JULY 1. WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31. THE DECISION AND RECOMMENDATION WERE APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON SEPTEMBER 17.
B-160808, AUG 10, 1971
MILITARY PERSONNEL - ACTIVE DUTY PAY AND ALLOWANCES - COURT OF CLAIMS DIVISION DECISION CONCERNING CLAIMS BY CAPTAINS RICHARD W. RICKER AND OSWALD B. SALYER, CHAPLAIN CORPS, USN, INCIDENT TO THE CORRECTION OF THEIR NAVAL RECORDS BY THE BOARD FOR CORRECTION OF NAVAL RECORDS. PAYMENT OF THE SUBJECT CLAIMS MAY NOT BE AUTHORIZED UNTIL SUCH TIME THERE IS FURNISHED THE CLAIMS DIVISION OF GAO ACCEPTABLE EVIDENCE OF INFORMATION SHOWING THE AMOUNT EACH OFFICER EARNED FROM CIVILIAN EMPLOYMENT DURING THE PERIOD COVERED BY THE DECISION BY THE COURT OF CLAIMS INCIDENT TO THEIR DECISION OF JULY 7, 1969, 118 CT. CLS. 1169. THE RECORD CORRECTION EFFECTED PURSUANT TO THAT DECISION ENTITLED THEM TO ACTIVE DUTY PAY AND ALLOWANCES OFFSET BY INTERIM CIVILIAN EARNINGS AS SET OUT IN B-160808, APRIL 2, 1970.
TO PENROSE LUCAS ALBRIGHT, ESQUIRE:
WE AGAIN REFER TO YOUR LETTER OF MARCH 3, 1971, AND ENCLOSURES, WRITTEN ON BEHALF OF CAPTAINS RICHARD W. RICKER AND OSWALD B. SALYER, CHAPLAIN CORPS, UNITED STATES NAVY, AND PERTAINING TO THEIR CLAIMS FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIODS JULY 1, 1965, TO OCTOBER 12, 1970, AND JULY 1, 1965, TO OCTOBER 14, 1970, RESPECTIVELY, INCIDENT TO THE CORRECTION OF THEIR NAVAL RECORDS BY THE BOARD FOR CORRECTION OF NAVAL RECORDS.
THE OFFICERS WERE ORIGINALLY RETIRED EFFECTIVE JULY 1, 1965, PURSUANT TO ACTION BY A NAVY CONTINUATION BOARD WHICH THE COURT OF CLAIMS IN A DECISION OF JUNE 14, 1968, HELD HAD BEEN ILLEGALLY CONSTITUTED. BASED ON A STIPULATION OF THE PARTIES, JUDGMENT WAS ENTERED BY THE COURT ON JULY 7, 1969 (118 CT. CL. 1169), IN THE AMOUNTS OF $1,000 FOR CAPTAIN RICKER AND $5,000 FOR CAPTAIN SALYER, FOR THE ACTIVE DUTY PAY AND ALLOWANCES DUE EACH OFFICER FOR THE PERIOD JULY 1, 1965, TO JUNE 14, 1968, AND THE OFFICERS HAVE BEEN PAID THOSE AMOUNTS. IN ARRIVING AT THOSE AMOUNTS, THE COURT APPARENTLY TOOK INTO CONSIDERATION THE AMOUNT OF EACH OFFICER'S CIVILIAN EARNINGS DURING THE PERIOD INVOLVED.
ON SEPTEMBER 8, 1969, THE BOARD FOR CORRECTION OF NAVAL RECORDS DIRECTED THAT THE OFFICERS' NAVAL RECORDS BE CORRECTED TO SHOW THAT THEY WERE NOT RETIRED ON JULY 1, 1965, BUT WERE CONTINUED ON ACTIVE DUTY UNTIL JULY 31, 1969, AND RETIRED ON AUGUST 1, 1969, WITH THE GRADE OF CAPTAIN PURSUANT TO 10 U.S.C. 6323. THE BOARD ALSO RECOMMENDED THAT THE DEPARTMENT OF THE NAVY PAY TO EACH OFFICER OR OTHER PARTY OR PARTIES ALL MONIES LAWFULLY FOUND TO BE DUE FROM JUNE 15, 1968, TO JULY 31, 1969 (INCLUDING PAYMENT FOR ANNUAL LEAVE ACCRUED FOR SUCH PERIOD), LESS RETIRED PAY RECEIVED BY THEM FOR SUCH PERIOD. THE DECISION AND RECOMMENDATION WERE APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON SEPTEMBER 17, 1969.
THE QUESTION WHETHER OFFSET OF INTERIM CIVILIAN EARNINGS WAS REQUIRED FROM THE AMOUNT OF ACTIVE DUTY PAY AND ALLOWANCES DUE THE OFFICERS FOR THE PERIOD JUNE 15, 1968, TO JULY 31, 1969, INCIDENT TO THE CORRECTION OF THEIR NAVAL RECORDS WAS PRESENTED TO THIS OFFICE FOR DECISION. DECISION OF APRIL 2, 1970, B-160808, 49 COMP. GEN. 656, WE CONCLUDED, AFTER A CAREFUL REVIEW OF THE LAW, THE DEPARTMENTAL REGULATIONS, OUR DECISIONS AND DECISIONS OF THE COURT OF CLAIMS, THAT WE COULD NOT AUTHORIZE PAYMENT OF THE AMOUNTS DUE WITHOUT THE OFFSET OF CIVILIAN EARNINGS.
THE BOARD FOR CORRECTION OF NAVAL RECORDS ON JULY 20, 1970, DIRECTED THAT THE NAVAL RECORDS OF THE OFFICERS BE CORRECTED BY CANCELLING ITS ACTION OF SEPTEMBER 8, 1969, WHICH WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON SEPTEMBER 17, 1969. THE BOARD'S ACTION WAS APPROVED BY THE ASSISTANT SECRETARY OF THE NAVY ON JULY 21, 1970. THE CHIEF OF NAVAL PERSONNEL ON AUGUST 21, 1970, CORRECTED THE OFFICERS' RECORDS TO SHOW THAT THE RETIREMENT ORDERS OF MARCH 1, 1965, WHICH RETIRED THEM AS OF JULY 1, 1965, WERE REVOKED AND NOTIFIED THEM ACCORDINGLY. ALSO ON THE SAME DATE ORDERS WERE ISSUED TO THE OFFICERS DIRECTING THEM TO PROCEED AND REPORT TO DUTY ON OR BEFORE OCTOBER 15, 1970 - CAPTAIN RICKER TO NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, AND CAPTAIN SALYER TO FLEET MARINE FORCE, PACIFIC, TWENTY-NINE PALMS, CALIFORNIA. THE RECORD SHOWS THAT THE OFFICERS REPORTED FOR DUTY AS DIRECTED.
THE NAVY FINANCE CENTER DECLINED TO EFFECT SETTLEMENT OF THE OFFICERS' CLAIMS FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY 1, 1965, UNTIL THEY REPORTED FOR ACTIVE DUTY PURSUANT TO THE ORDERS OF AUGUST 21, 1970, UNTIL A REPORT OF THE CIVILIAN EARNINGS WAS FURNISHED AND TRANSMITTED THE CLAIMS TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT.
YOUR LETTER OF MARCH 3, 1971, TO OUR CLAIMS DIVISION, CONCERNING THESE CLAIMS, CONTAINS THE FOLLOWING STATEMENT:
"IF THERE IS ANY STATUTORY OR REGULATORY BASIS FOR YOU TO DEDUCT CIVILIAN EARNINGS FROM ACTIVE DUTY PAY, PLEASE ADVISE ME OF SAME AND FURNISH ME WITH A CITATION AND, IF NOT PUBLISHED IN THE U.S.C. OR IN THE CODE OF FEDERAL REGULATIONS, WITH A COPY."
ALSO, YOU INVITE OUR ATTENTION TO THE FACT THAT CAPTAIN RICKER HAD NOT BEEN PAID A DISLOCATION ALLOWANCE BASED ON HIS ORDERS DIRECTING HIM TO REPORT FOR DUTY AT THE NAVAL AIR STATION, PATUXENT RIVER.
UNDER THE ABOVE-MENTIONED COURT'S JUDGMENT, BASED ON A STIPULATION BETWEEN THE PARTIES, THE OFFICERS BECAME ENTITLED TO AND RECEIVED MONEY JUDGMENTS IN THE SPECIFIED AMOUNTS, THAT IS $1,000 (RICKER) AND $5,000 (SALYER). IN OUR OPINION, THEREFORE, NO FURTHER ENTITLEMENT TO PAY AND ALLOWANCES FOR THE PERIOD PRIOR TO JUNE 15, 1968, EXISTS SINCE THE BAR OF RES JUDICATA APPLIES TO THIS PERIOD. SEE 47 COMP. GEN. 573 (1968) AND B- 156476, DATED MARCH 13, 1969, COPY ENCLOSED.
THE EFFECT OF THE RECORDS CORRECTION ACTIONS IN THE CASES OF THESE OFFICERS WAS TO CONTINUE THEM IN AN ACTIVE DUTY STATUS WITH ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES LESS APPROPRIATE OFFSETS. FOR THE REASONS SET OUT IN THE DECISION OF APRIL 2, 1970, IT IS OUR VIEW THAT APPROPRIATE OFFSETS INCLUDE INTERIM CIVILIAN EARNINGS.
WITH REGARD TO THE STATEMENT IN YOUR LETTER OF MARCH 3, 1971, REGARDING STATUTORY OR REGULATORY AUTHORITY FOR THE DEDUCTION OF THE EARNINGS FROM INTERIM CIVILIAN EMPLOYMENT, WE REFER YOU TO THE NAVY REGULATION WHICH WAS QUOTED IN OUR DECISION OF APRIL 2, 1970, SUBSECTION 723.10(C) OF TITLE 32, CODE OF FEDERAL REGULATIONS, PUBLISHED IN 34 F.R. 19196, DECEMBER 4, 1969, AND NOW INCORPORATED AS 32 C.F.R. 723.10(C), REVISED AS OF JANUARY 1, 1971, AND TO THE MEMORANDUM OF THE ASSISTANT SECRETARY OF DEFENSE DATED MARCH 12, 1969, ALSO REFERRED TO IN THAT DECISION. IN THIS REGARD, IT MAY BE NOTED THAT, AS POINTED OUT IN THAT DECISION, THE COURT OF CLAIMS HAS CONSISTENTLY REQUIRED THE OFFSET OF INTERIM CIVILIAN EARNINGS IN JUDGMENTS FOR BACK PAY AND ALLOWANCES WITHOUT THE BENEFIT OF ANY STATUTE OR REGULATION SO PROVIDING.
ACCORDINGLY WE PROPERLY MAY NOT AUTHORIZE ANY PAYMENT ON THE CLAIMS OF THESE OFFICERS UNTIL SUCH TIME THERE IS FURNISHED OUR CLAIMS DIVISION ACCEPTABLE EVIDENCE OR INFORMATION SHOWING THE AMOUNT EACH OFFICER EARNED FROM CIVILIAN EMPLOYMENT DURING THE PERIOD COVERED BY HIS CLAIM. THE CLAIMS OF THE OFFICERS FOR DISLOCATION ALLOWANCE WILL BE DISPOSED OF WHEN FINAL SETTLEMENT ACTION CAN BE TAKEN ON THEIR CLAIMS.