Skip to main content

B-152215, NOV. 5, 1963

B-152215 Nov 05, 1963
Jump To:
Skip to Highlights

Highlights

PENROSE LUCAS ALBRIGHT: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 27. THE CIRCUMSTANCES GIVING RISE TO THE INDEBTEDNESS ARE SET FORTH IN OUR DECISION OF SEPTEMBER 9. AS FOLLOWS: "IT APPEARS THAT COMMANDER ROBINSON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVY ON JUNE 30. THAT UPON HIS DISCHARGE HE WAS PAID SEVERANCE PAY IN THE AMOUNT OF $17. HE WAS EMPLOYED BY VARIOUS FEDERAL AGENCIES AND THAT HE RECEIVED COMPENSATION IN THE FOLLOWING AMOUNTS: DEPARTMENT OF THE ARMY. COMMANDER ROBINSON'S NAVAL RECORDS WERE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED WITH SEVERANCE PAY ON JUNE 30. HE WAS CONSIDERED BY A BOARD CONVENED TO RECOMMEND OFFICERS IN HIS CATEGORY FOR CONTINUATION ON THE ACTIVE LIST OF THE REGULAR NAVY.

View Decision

B-152215, NOV. 5, 1963

TO MR. PENROSE LUCAS ALBRIGHT:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 27, 1963, IN BEHALF OF COMMANDER JAMES B. ROBINSON, USN, RETIRED, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 9, 1963, B-152215, 43 COMP. GEN. - , CONCERNING THE MATTER OF COMMANDER ROBINSON'S INDEBTEDNESS TO THE UNITED STATES.

THE CIRCUMSTANCES GIVING RISE TO THE INDEBTEDNESS ARE SET FORTH IN OUR DECISION OF SEPTEMBER 9, 1963, AS FOLLOWS:

"IT APPEARS THAT COMMANDER ROBINSON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVY ON JUNE 30, 1958, HAVING SERVED MORE THAN 17 YEARS; THAT UPON HIS DISCHARGE HE WAS PAID SEVERANCE PAY IN THE AMOUNT OF $17,280; THAT DURING THE PERIOD FROM JULY 1, 1958, THROUGH MARCH 29, 1963, HE WAS EMPLOYED BY VARIOUS FEDERAL AGENCIES AND THAT HE RECEIVED COMPENSATION IN THE FOLLOWING AMOUNTS: DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, JULY 1, 1958, TO FEBRUARY 23, 1959, $4,923.20; TREASURY DEPARTMENT, UNITED STATES COAST GUARD, FEBRUARY 24, 1959, TO DECEMBER 26, 1959, $7,428.48; PUBLIC HOUSING ADMINISTRATION, HOUSING AND HOME FINANCE AGENCY, DECEMBER 27, 1959, TO MARCH 29, 1963, $31,960.80. IT FURTHER APPEARS THAT BY ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, APPROVED BY THE SECRETARY OF THE NAVY ON MARCH 28, 1963; COMMANDER ROBINSON'S NAVAL RECORDS WERE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED WITH SEVERANCE PAY ON JUNE 30, 1958; THAT HE CONTINUED ON ACTIVE DUTY UNTIL JUNE 30, 1960; THAT PRIOR TO THE COMPLETION OF 20 YEARS OF TOTAL COMMISSIONED SERVICE, HE WAS CONSIDERED BY A BOARD CONVENED TO RECOMMEND OFFICERS IN HIS CATEGORY FOR CONTINUATION ON THE ACTIVE LIST OF THE REGULAR NAVY; THAT HE WAS NOT RECOMMENDED FOR CONTINUATION AND, FURTHER, WAS REPORTED AS AN OFFICER WHOSE PERFORMANCE OF DUTY WOULD NOT WARRANT RETENTION ON THE ACTIVE LIST UNDER ANY CIRCUMSTANCES. THE CORRECTION BOARD FURTHER RECOMMENDED THAT PAYMENT OF ALL AMOUNTS DUE BE PAID, LESS SEVERANCE PAY.

"PURSUANT TO THE CORRECTED RECORDS, COMMANDER ROBINSON WAS CREDITED WITH ACTIVE DUTY PAY AS AN OFFICER OF THE REGULAR NAVY FROM JULY 1, 1958, TO JUNE 30, 1960, AND RETIRED PAY FROM JULY 1, 1960. SINCE THE RECORDS NOW SHOW THAT HE WAS NOT DISCHARGED ON JUNE 30, 1958, THERE WAS REQUIRED TO BE DEBITED THE AMOUNT OF SEVERANCE PAY PREVIOUSLY PAID, AND SINCE HE WAS ON ACTIVE DUTY FOR THE PERIOD JULY 1, 1958, THROUGH JUNE 30, 1960, AND IN A RETIRED PAY STATUS THEREAFTER DURING WHICH TIME PAY ACCRUED TO HIM AT A RATE IN EXCESS OF $2,500 PER YEAR, HIS EMPLOYMENT FOR THE PERIOD JULY 1, 1958, THROUGH MARCH 29, 1963, WAS CONSIDERED WITHIN THE PROHIBITION OF THE DUAL EMPLOYMENT STATUTE OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62. HENCE, THERE WAS ALSO DEBITED THE TOTAL CIVILIAN EARNINGS FOR THE MENTIONED PERIOD, $44,312.48. TWO-THIRDS OF HIS RETIRED PAY HAS BEEN WITHHELD AND APPLIED TO REDUCE HIS INDEBTEDNESS, PURSUANT TO THE ACT OF JULY 15, 1954, CH. 509, 68 STAT. 482.'

THE OBSERVATION IS MADE IN YOUR LETTER THAT THE POSITION OF THE GOVERNMENT IN ESTABLISHING THE INDEBTEDNESS AND IN REQUIRING THE REFUND FROM COMMANDER ROBINSON IS UNJUST, INEQUITABLE AND IS CREATING A HARDSHIP ON HIM. HOWEVER, AN EXAMINATION OF THE RIGHTS AND LIABILITIES WHICH FLOW FROM THE CORRECTION OF THE OFFICER'S NAVAL RECORDS SHOWS THE CONTRARY. A RESULT OF THE CORRECTION, COMMANDER ROBINSON ACQUIRED A STATUS AS AN OFFICER ON ACTIVE DUTY IN THE REGULAR NAVY FROM JULY 1, 1958, TO JUNE 30, 1960, WITH THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES FOR THAT PERIOD. HE ALSO ACQUIRED THE STATUS OF A RETIRED OFFICER OF THE NAVY AS OF JULY 1, 1960, WITH THE RIGHT TO RETIRED PAY FROM THAT DATE AND FOR THE REMAINDER OF HIS LIFE. THUS, THE CHANGES MADE IN HIS RECORD GAVE HIM SUBSTANTIAL FINANCIAL BENEFITS NOT ONLY FOR THE PERIOD ACTUALLY INVOLVED IN THE PAY ADJUSTMENT THAT FOLLOWED THE CORRECTION BUT EXTENDING ON INTO THE FUTURE AS LONG AS HE LIVES. SINCE HE APPARENTLY INITIATED THE ACTION WHICH RESULTED IN THE CORRECTION OF HIS RECORDS, IT APPEARS THAT THOSE BENEFITS WERE THOUGHT TO BE TO HIS ADVANTAGE.

ON THE OTHER HAND, THE CORRECTION OF HIS RECORDS WHICH HE INITIATED WAS NOT ACCOMPLISHED WITHOUT CERTAIN LIABILITIES. OBVIOUSLY, HE COULD NOT RETAIN THE SEVERANCE PAY HE RECEIVED WHEN HE WAS DISCHARGED ON JUNE 30, 1958, BECAUSE THE RECORD AS CORRECTED SHOWS THAT HE WAS NOT DISCHARGED BUT INSTEAD WAS RETIRED AT THE END OF HIS ACTIVE SERVICE. LIKEWISE, THE RETENTION OF COMPENSATION AS A CIVILIAN EMPLOYEE DURING THE PERIOD HE WAS GIVEN AN ACTIVE STATUS OR RETIRED STATUS AS AN OFFICER OF THE REGULAR NAVY COULD NOT BE PERMITTED BECAUSE THE EMPLOYMENT OF SUCH AN OFFICER IN THE CIVILIAN POSITION HE HELD WAS PROHIBITED BY LAW. NO OFFICER OF THE NAVY SIMILARLY SITUATED IS ENTITLED TO COMPENSATION FLOWING FROM SUCH A DUAL EMPLOYMENT STATUS. IT IS IMMATERIAL THAT HIS OFFICER STATUS DID NOT ACTUALLY EXIST AT THE TIME OF HIS CIVILIAN EMPLOYMENT BECAUSE UNDER THE BROAD POWERS GRANTED BY THE CORRECTION OF RECORDS LEGISLATION, THE SECRETARY MAY PLACE HIM IN AN OFFICER STATUS DURING THE PERIOD HE WAS EMPLOYED AND THEREBY GIVE HIM ALL THE BENEFITS AUTHORIZED FOR SUCH AN OFFICER.

IT IS ALSO STATED IN YOUR PRESENT LETTER THAT OUR DECISION OF SEPTEMBER 9, 1963, IS PREDICATED ON THE OPINION IN THE CASE OF SEASTROM V. UNITED STATES, 147 CT.CL. 453 (1959), BUT THAT THE SEASTROM CASE DID NOT INVOLVE THE STATUTE IN ISSUE IN THIS MATTER.

YOU FURTHER STATE THAT:

"IN THE INSTANT CASE, THE COMPTROLLER GENERAL IS SEEKING TO RECOVER FROM COMMANDER ROBINSON ALL THE PAY WHICH COMMANDER ROBINSON RECEIVED AS A CIVILIAN EMPLOYEE OF THE UNITED STATES GOVERNMENT ON THE BASIS THAT HE WAS HOLDING TWO INCOMPATIBLE OFFICES IN VIOLATION OF 5 U.S.C. 62. THE COMPTROLLER GENERAL APPARENTLY DOES NOT QUESTION ANY PORTION OF COMMANDER ROBINSON'S CLAIM FOR ACTIVE DUTY AND RETIRED PAY WHICH ARISES IN VIEW OF THE ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS ON HIS CASE.

SETTING THE ISSUE OF AN EX POST FACTO APPLICATION OF THE LAW, AS RAISED IN MY PRIOR LETTER, ASIDE, THE INSTANT CASE INVOLVES THE FURTHER ISSUES OF WHETHER COMMANDER ROBINSON MAY BE CONSIDERED TO HAVE HELD TWO INCOMPATIBLE OFFICES IN VIOLATION OF 5 U.S.C. 62 BECAUSE OF THE ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, AND, IF SUCH BE CONSIDERED THE CASE, SHOULD THE AMOUNTS RECEIVED BY COMMANDER ROBINSON FOR SERVICES PERFORMED AS EMPLOYEE OF THE UNITED STATES GOVERNMENT BE REFUNDED? THESE ISSUES WERE NOT REACHED NOR APPARENTLY CONSIDERED IN YOUR DECISION OF SEPTEMBER 9, 1963.'

FROM THE TENOR OF YOUR LETTER AND THE NATURE OF THE SEVERAL CASES CITED THEREIN YOU APPEAR TO HAVE MISCONSTRUED OUR DECISION AND OVERLOOKED THE BASIC PRINCIPLES INVOLVED.

THE SEASTROM CASE WAS CITED NOT AS DEFINITIVE OF THE QUESTION INVOLVED IN THE PRESENT CASE, BUT AS ILLUSTRATIVE OF THE PRINCIPLE THAT A CORRECTION OF RECORDS BY AN APPROPRIATE CORRECTION BOARD REQUIRES A REAPPRAISAL AND REEVALUATION OF THE SERVICE MEMBER'S OR FORMER SERVICE MEMBER'S ENTIRE FINANCIAL RELATIONSHIP WITH THE GOVERNMENT. IN THE SEASTROM CASE, THE COURT HELD THAT THE CORRECTION OF PLAINTIFF'S MILITARY RECORD WAS MERELY TO PLACE PLAINTIFF IN THE SAME FINANCIAL CONDITION WHICH HE WOULD HAVE OCCUPIED HAD A CORRECTION NOT BEEN NECESSARY, AND FURTHER THAT "THE MERE FACT THAT THE RETIRED PAY WAS RETROACTIVE WOULD NOT RELIEVE THE DEFENDANT OF THE DUTY TO IMPOSE UPON PLAINTIFF THE RESTRICTIONS OF THE SALES ACT.' IT IS FOR THIS PRINCIPLE THAT THE SEASTROM CASE WAS CONSIDERED PERTINENT TO THE CASE OF COMMANDER ROBINSON. IN OTHER WORDS, THE RECORD CORRECTION MERELY ESTABLISHES A SET OF MILITARY FACTS AS THEY WOULD HAVE BEEN HAD THE RECORD NOT NEEDED CORRECTION, AND EXISTING LAWS ARE APPLIED TO THE FACTS AS THEY WOULD HAVE BEEN, HAD THE CORRECTION NOT BEEN NECESSARY.

THE PRESENT STATE OF THE RECORD RENDERS COMMANDER ROBINSON'S SITUATION NOT UNLIKE THAT OF THE PLAINTIFF IN THE CASE OF HOSTINSKY V. UNITED STATES, 292 F.2D 508 (1951), WHEREIN THE COURT OF CLAIMS HELD:

"IF IT BE CONCEDED THAT THE PLAINTIFF HELD AN OFFICE BY VIRTUE OF BEING A RETIRED OFFICER IN THE REGULAR NAVY, THEN THE HOLDING OF THE OFFICE OF FIRE AND DAMAGE CONTROL SUPERINTENDENT WITH THE MARITIME ADMINISTRATION, DEPARTMENT OF COMMERCE, WAS IN VIOLATION OF THE ACT OF JULY 31, 1894, SUPRA. THIS STATUTE PROVIDES IN PART:

" "* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIFICALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

"SINCE HE HELD THE OFFICE IN VIOLATION OF THIS ACT OF CONGRESS, HE CANNOT RECOVER THE SALARY OF THE OFFICE.

"THAT HE HELD THE OFFICE ONLY TEMPORARILY IS OF NO MOMENT. THE STATUTE MAKES NO SUCH EXCEPTION. IT SAYS A PERSON ALREADY HOLDING AN OFFICE SHALL NEITHER BE APPOINTED TO ANOTHER ONE NOR HOLD ANOTHER ONE. PLAINTIFF SUES FOR THE SALARY OF AN OFFICE SO LONG AS HE HELD IT. TO HOLD IT AT ALL WAS ILLEGAL. BUT PLAINTIFF SAYS HE IS ENTITLED TO THE COMPENSATION OF THE OFFICE BECAUSE HE HELD IT DE FACTO. WHETHER HE HELD IT DE FACTO OR DE JURE, HE HELD IT, AND TO HOLD IT WAS A VIOLATION OF THE ACT.

"CONSEQUENTLY, WE CONCLUDE THAT PLAINTIFF IS NOT ENTITLED TO THE COMPENSATION HE RECEIVED AS FIRE AND DAMAGE CONTROL SUPERINTENDENT WITH THE MARITIME ADMINISTRATION, BECAUSE THE HOLDING OF THAT OFFICE WAS IN DIRECT VIOLATION OF THE MANDATE OF CONGRESS AS CONTAINED IN THE ACT OF JULY 31, 1894, SUPRA.'

HENCE, AS STATED IN OUR DECISION OF SEPTEMBER 9, 1963---

"BY VIRTUE OF THE CORRECTION BOARD ACTION, COMMANDER ROBINSON MUST BE REGARDED AS AN OFFICER WHOSE ACTIVE DUTY STATUS CONTINUED UNTIL JUNE 30, 1960, AND WHO, BECAUSE OF HIS SUBSEQUENT RETIREMENT AS AN OFFICER OF THE REGULAR NAVY, RECEIVED SEVERANCE PAY NOT PAYABLE IN SUCH CIRCUMSTANCES. THE SAME CIRCUMSTANCES BROUGHT HIS CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT WITHIN THE PROHIBITION OF THE 1894 STATUTE. IT FOLLOWS THAT THE AMOUNTS PAID IN CONNECTION WITH SUCH EMPLOYMENT MUST NOW BE VIEWED AS PAYMENTS WHICH MUST BE REFUNDED.'

CONSIDERATION HAS BEEN GIVEN TO THE DECISIONS OF THE SUPREME COURT AND THE COURT OF CLAIMS CITED IN YOUR LETTER. HOWEVER, THE PRINCIPLES ENUNCIATED THEREIN WERE REQUIRED BY THE STATUTES THERE INTERPRETED, AND IN MOST OF THOSE CASES THE STATUTE CONCERNED ANTEDATED THE 1894 STATUTE FOUND APPLICABLE IN THE PRESENT MATTER. THE STATUTES IN THE DECISIONS CITED IN YOUR LETTER RELATED TO DUAL COMPENSATION MATTERS INCLUDING COMPENSATION FOR HOLDING INCOMPATIBLE OFFICES AND MORE THAN ONE COMPENSATION FOR THE SAME OFFICE. IT APPEARS THAT THE 1894 ACT WAS INTENDED TO CLARIFY THE SITUATION BROUGHT ABOUT BY THE EARLIER LAWS AND DECISIONS AND TO MAKE IT CLEAR THAT PERSONS HOLDING AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTED TO $2,500, WERE NOT TO BE APPOINTED TO OR HOLD ANY OTHER OFFICE UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW. WHEN THE APPOINTMENT IS VOID, ANY COMPENSATION PAID IS UNAUTHORIZED. AS INDICATED ABOVE IN THE HOSTINSKY CASE, THE COMPATIBILITY OF THE TWO "OFFICES" IS IMMATERIAL.

GAO Contacts

Office of Public Affairs