B-129424, MARCH 5, 1957, 36 COMP. GEN. 632

B-129424: Mar 5, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS ERRONEOUSLY ADVISED THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST MAY NOT BE REGARDED AS IN A DE FACTO STATUS WHILE ON A TEMPORARY OR PERMANENT RETIRED LIST AND WHEN NO OFFICIAL DUTIES ARE PERFORMED SO AS TO RETAIN RETIRED PAY IN EXCESS OF THAT LEGALLY DUE AS A PERMANENTLY RETIRED MEMBER. TRAVELED TO HIS HOME IS NOT ENTITLED TO A MILEAGE ALLOWANCE BY REASON OF ERRONEOUS ADVICE THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST NOR TO MILEAGE AND REIMBURSEMENT FOR DEPENDENT'S TRAVEL FOR TRAVEL PRIOR TO ISSUANCE OF COMPETENT ORDERS. TRAVELED TO HIS HOME WHERE HE CONTINUED TO RESIDE AFTER NOTICE OF PERMANENT RETIREMENT DID NOT HAVE HIS RIGHT TO SELECT A HOME AND TRAVEL TO THAT PLACE WITHIN ON YEAR OF RETIREMENT PREJUDICED BY REASON OF ERRONEOUS ADVICE THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND THE TRAVEL ACTUALLY PERFORMED AND CONTINUED RESIDENCE CONSTITUTES SELECTION OF A RETIREMENT HOME.

B-129424, MARCH 5, 1957, 36 COMP. GEN. 632

MILITARY PERSONNEL - RETIRED PAY - ERRONEOUS PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST - TRAVEL AND TRANSPORTATION EXPENSES A COAST GUARD MEMBER WHO, AFTER PERMANENT RETIREMENT FOR PHYSICAL DISABILITY, WAS ERRONEOUSLY ADVISED THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST MAY NOT BE REGARDED AS IN A DE FACTO STATUS WHILE ON A TEMPORARY OR PERMANENT RETIRED LIST AND WHEN NO OFFICIAL DUTIES ARE PERFORMED SO AS TO RETAIN RETIRED PAY IN EXCESS OF THAT LEGALLY DUE AS A PERMANENTLY RETIRED MEMBER. A MEMBER OF THE COAST GUARD WHO, WHILE ON LEAVE PRIOR TO PERMANENT RETIREMENT, TRAVELED TO HIS HOME IS NOT ENTITLED TO A MILEAGE ALLOWANCE BY REASON OF ERRONEOUS ADVICE THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST NOR TO MILEAGE AND REIMBURSEMENT FOR DEPENDENT'S TRAVEL FOR TRAVEL PRIOR TO ISSUANCE OF COMPETENT ORDERS. A MEMBER OF THE COAST GUARD WHO, WHILE ON LEAVE, TRAVELED TO HIS HOME WHERE HE CONTINUED TO RESIDE AFTER NOTICE OF PERMANENT RETIREMENT DID NOT HAVE HIS RIGHT TO SELECT A HOME AND TRAVEL TO THAT PLACE WITHIN ON YEAR OF RETIREMENT PREJUDICED BY REASON OF ERRONEOUS ADVICE THAT HIS NAME HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND THE TRAVEL ACTUALLY PERFORMED AND CONTINUED RESIDENCE CONSTITUTES SELECTION OF A RETIREMENT HOME.

TO THE SECRETARY OF THE TREASURY, MARCH 5, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 7, 1957, FROM THE ACTING SECRETARY OF THE TREASURY, REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE RETIREMENT OF CHARLES E. DICKEY, BM2 (P), U.S. COAST GUARD, ON SEPTEMBER 1, 1952.

IT APPEARS THAT ON JULY 8, 1952, DICKEY RECEIVED A COPY OF PROCEEDINGS AND FINDINGS OF A PHYSICAL EVALUATION BOARD WHICH STATED THAT HE WAS PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS RATING DUE TO PHYSICAL DISABILITIES CONSIDERED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY; THAT HIS DISABILITY WAS CONSIDERED TO BE 30 TO 40 PERCENT; AND THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT HIS DISABILITIES "ARE OF A PERMANENT NATURE.' ON THE SAME DATE HE REQUESTED IN WRITING THAT HE NOT BE SEPARATED FROM THE SERVICE IN THE NEAR FUTURE AS HE FELT THAT HIS PHYSICAL CONDITION WAS SUCH THAT HE WOULD NOT BE ABLE TO HOLD A JOB. THE PHYSICAL REVIEW COUNCIL CONCURRED IN THE FINDINGS OF THE PHYSICAL EVALUATION BOARD AND ON AUGUST 14, 1952, RECOMMENDED THAT HE BE PLACED ON THE PERMANENT DISABILITY RETIRED LIST WITH A 40 PERCENT DISABILITY RATING. WHILE IT IS SHOWN THAT THE COMMANDANT OF THE COAST GUARD APPROVED THE FINDINGS OF THE PHYSICAL EVALUATION BOARD ON AUGUST 25, 1952, AND BY APPROPRIATE ACTION PROVIDED THAT DICKEY "IS HEREBY PERMANENTLY RETIRED EFFECTIVE 1 SEPTEMBER 1952" THE RETIREMENT ORDERS OF AUGUST 26, 1952--- DELIVERED TO HIM AT HIS HOME IN BALTIMORE, MARYLAND, TO WHICH HE HAD PROCEEDED IN A LEAVE STATUS IN MAY 1952 AFTER HAVING BEEN GRANTED INDEFINITE SICK LEAVE PENDING FINAL ACTION ON THE RETIREMENT PROCEEDINGS IN HIS CASE--- ADVISED HIM THAT HE HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND THAT HE WOULD BE DIRECTED TO REPORT FOR PERIODIC PHYSICAL EXAMINATIONS AS REQUIRED UNDER SECTIONS 402 (E) AND 404 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT 819, 821, 37 U.S.C. 272 (E), 274. AFTER REPORTING FOR THE SECOND OF SUCH PHYSICAL EXAMINATIONS IN JULY 1955 PURSUANT TO ORDERS SO DIRECTING, THE ADMINISTRATIVE ERROR IN ADVISING HIM THAT HE HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WAS DISCOVERED AND UNDER DATE OF SEPTEMBER 28, 1955, HE WAS NOTIFIED OF THE ERROR AND THAT HE WAS NOT ENTITLED TO THE RETIRED PAY OF 50 PERCENT OF HIS BASIC PAY--- THE MINIMUM AMOUNT PAYABLE UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 272 (D), TO MEMBERS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST--- THEN BEING PAID HIM. IT IS STATED THAT THEREAFTER HE WAS PAID AT THE RATE OF 40 PERCENT OF HIS BASIC PAY, BASED ON HIS DISABILITY RATING OF 40 PERCENT, AND THAT THE AMOUNT HE WAS OVERPAID AS A RESULT OF THE ADMINISTRATIVE ERROR FOR THE PERIOD SEPTEMBER 1, 1952, TO AUGUST 31, 1955, WAS $616.97.

THE FIRST QUESTION ON WHICH A DECISION IS REQUESTED RELATES TO THE LIABILITY OF DICKEY TO REFUND THE AMOUNT OF THE OVERPAYMENTS. SECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272 (A), AUTHORIZES THE PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OF THE NAME OF AN OTHERWISE QUALIFIED MEMBER ONLY WHEN ACCEPTED MEDICAL PRINCIPLES INDICATE THAT SUCH DISABILITY "MAY BE" OF A PERMANENT NATURE. IF THAT CONDITION IS MET BY A FINDING THAT SUCH DISABILITY "IS" OF A PERMANENT NATURE, THE ONLY RETIREMENT ACTION THAT MAY BE TAKEN IS A PERMANENT RETIREMENT FOR PHYSICAL DISABILITY. SINCE THE ADMINISTRATIVE FINDINGS IN THIS CASE WERE TO THE EFFECT THAT DICKEY'S DISABILITIES WERE OF A PERMANENT NATURE AND HE WAS PERMANENTLY RETIRED, THE RETIREMENT ORDERS OF AUGUST 26, 1952, WERE WITHOUT EFFECT TO PLACE HIM ON THE TEMPORARY DISABILITY RETIRED LIST.

CONCERNING THE QUESTION WHETHER, ON THE BASIS FO THE DE FACTO STATUS RULE (COMPARE 30 COMP. GEN. 195), DICKEY MAY RETAIN THE AMOUNT OF $616.97 ERRONEOUSLY PAID TO HIM, IT IS WELL TO REMEMBER THAT SUCH RULE WA INTRODUCED INTO THE LAW, NOT AS A PAY RULE, BUT AS A MATTER OF POLICY AND NECESSITY, TO PROTECT THE INTERESTS OF THE PUBLIC AND INDIVIDUALS WHOSE INTERESTS WERE INVOLVED IN THE OFFICIAL ACTS OF PERSONS EXERCISING THE DUTIES OF AN OFFICE WITHOUT BEING LAWFUL OFFICERS. SEE STATE V. CARROLL, 9 AM. REP. 409, 423, WHERE THE EARLIER ENGLISH AND AMERICAN CASES ARE REVIEWED. AS THAT RULE DEVELOPED, IT WAS CONCLUDED THAT SUCH DE FACTO OFFICERS COULD RETAIN THE SALARIES PAID THEM FOR DUTIES PERFORMED IN SUCH STATUS BUT THERE APPEARS TO BE NO SOUND REASON WHY THE RULE SHOULD BE EXTENDED FURTHER TO COVER PERSONS WHO ARE ON A TEMPORARY OR A PERMANENT RETIRED LIST AND WHO HAVE NO OFFICIAL DUTIES TO PERFORM FROM DAY TO DAY. HENCE, IT IS CONCLUDED THAT THE ERRONEOUS NOTICE WHICH DICKEY RECEIVED RESPECTING THE TEMPORARY OR PERMANENT NATURE OF HIS RETIREMENT DID NOT CHANGE HIS LEGAL RIGHTS OR GIVE HIM A RIGHT TO RETAIN ANY RETIRED PAY IN EXCESS OF THAT LEGALLY DUE AS A (PERMANENTLY) RETIRED MEMBER. ACCORDINGLY, DICKEY SHOULD REFUND THE SUM ERRONEOUSLY PAID TO HIM.

DECISION ALSO IS REQUESTED ON THE FOLLOWING FOUR QUESTIONS.

1. IS THE RETIRED MEMBER ENTITLED TO MILEAGE ALLOWANCE FOR HIMSELF ONLY, WHICH WAS PAYABLE UPON TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST WHETHER OR NOT TRAVEL WAS PERFORMED? (PARA. 4153, CASE 7, JOINT TRAVEL REGULATIONS, CH. 2, 8/1/52).

2. IF THE TEMPORARY DISABILITY ORDERS WHICH WERE ISSUED MUST BE DISREGARDED, THE ONE YEAR WITHIN WHICH A SELECTION OF HOME MUST BE MADE FOR TRAVEL ALLOWANCE PURPOSES HAS EXPIRED, WHETHER OR NOT ONE CONSIDERS THE ORIGINAL DATE OF RETIREMENT (1 SEPTEMBER, 1952) OR THE DATE ON WHICH DICKEY WAS CORRECTLY INFORMED THAT HIS PHYSICAL DISABILITY RETIREMENT WAS PERMANENT INSTEAD OF TEMPORARY (28 SEPTEMBER, 1955). THE MEMBER WAS NEVER INFORMED THAT HE HAD ONE YEAR TO SELECT AND TRAVEL TO A PERMANENT HOME AND RECEIVE TRAVEL ALLOWANCES THERETO. ON THE CONTRARY, HE WAS INFORMED IN HIS RETIREMENT ORDERS THAT HE WAS NOT ENTITLED TO SELECT A "HOME OF RETIREMENT.' IS IT POSSIBLE FOR THE HEAD OF THE DEPARTMENT TO GRANT AN EXTENSION OF TIME IN WHICH A SELECTION OF A HOME CAN BE MADE IN VIEW OF THE ADMINISTRATIVE ERROR AND DELAY IN SETTLING THIS CASE?

IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, COULD TRAVEL ALLOWANCE BE PAID FOR THE MEMBER AND HIS DEPENDENTS FROM ALAMEDA, CALIF. TO BALTIMORE, MD., ASSUMING THE LATTER IS SELECTED AS HIS HOME, IN VIEW OF THE RESTRICTIONS OF PARA. 4156, CASE 7A, AND PARA. 7000-9, JOINT TRAVEL REGULATIONS?

4. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE AND DICKEY SELECTS A HOME AT SOME POINT OTHER THAN BALTIMORE, MD., MAY TRAVEL ALLOWANCES BE PAID FOR THE MEMBER AND HIS DEPENDENTS FROM BALTIMORE, MD., TO THE POINT SELECTED?

THE MILEAGE, IF ANY, WHICH WAS PAYABLE UNDER CASE 7, PARAGRAPH 4153, CHANGE 2, AUGUST 1, 1952, JOINT TRAVEL REGULATIONS, UPON TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST, DID NOT ACCRUE TO DICKEY SINCE HE WAS NOT ELIGIBLE FOR TRANSFER TO THAT LIST. IT IS DOUBTFUL THAT A RIGHT TO MILEAGE FOR HIS TRAVEL TO HIS HOME IN BALTIMORE COULD HAVE ACCRUED IN ANY EVENT, SINCE THE PROVISO IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253 (A/--- ON WHICH CASE 7 WAS BASED -- WHICH AUTHORIZES THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES ON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY REGARDLESS OF WHETHER THE MEMBER CONCERNED PERFORMS THE TRAVEL INVOLVED, HAS BEEN HELD TO RELATE TO PROSPECTIVE TRAVEL WHICH COULD BE PERFORMED FROM THE PLACE OF LEAVE TO ULTIMATE DESTINATION AFTER THE ISSUANCE OF ORDERS DIRECTING SUCH TRAVEL. SEE DECISION OF APRIL 11, 1956, B-125430. MILEAGE IS NOT PAYABLE INCIDENT TO HIS PERMANENT RETIREMENT SINCE HE TRAVELED TO HIS HOME WHILE ON LEAVE PRIOR TO SUCH RETIREMENT AND HENCE, DID NOT TRAVEL "UNDER COMPETENT ORDERS" AS REQUIRED BY SECTION 303 (A) OF THE CAREER COMPENSATION CAT. COMP. GEN. 373. IN VIEW OF THE PROVISION IN PARAGRAPH 7000-9, JOINT TRAVEL REGULATIONS (7000-11 OF THE REGULATIONS THEN IN EFFECT) BARRING REIMBURSEMENT FOR DEPENDENTS' TRAVEL PRIOR TO THE ISSUANCE OF ORDERS, REIMBURSEMENT MAY NOT BE MADE FOR THE TRAVEL OF HIS DEPENDENTS TO BALTIMORE. COMPARE 32 COMP. GEN. 348. QUESTION 1 IS ANSWERED ACCORDINGLY.

THE REQUIREMENT OF SELECTION OF A HOME AND TRAVEL TO THAT PLACE WITHIN ONE YEAR FROM THE DATE OF RETIREMENT ( CASE 12, PARAGRAPH 4153 AND PARAGRAPH 1150-3 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME OF DICKEY'S RETIREMENT, AND PARAGRAPH 4158 OF THE CURRENT REGULATIONS) IS MANDATORY AND THAT PERIOD FOR TRAVEL MAY NOT BE EXTENDED BY THE HEAD OF A DEPARTMENT BECAUSE WRONG INFORMATION MAY HAVE BEEN GIVEN THE MEMBER CONCERNED AS TO HIS RIGHTS RELATING TO THE SELECTION OF A HOME. DICKEY'S RIGHT TO SELECT A HOME WAS NOT PREJUDICED BY THE ERRONEOUS ORDERS OF AUGUST 26, 1952, SINCE HE MADE NO ATTEMPT TO SELECT A HOME OTHER THAN BALTIMORE AND CONTINUED RESIDENCE THERE CONSTITUTED A SUFFICIENT SELECTION OF THAT PLACE AS HIS HOME. HOWEVER, AS STATED ABOVE, NO RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES ACCRUED AS A RESULT OF SUCH ACTION SINCE THE TRAVEL WAS PERFORMED IN A LEAVE STATUS PRIOR TO HIS RETIREMENT.

ACCORDINGLY, QUESTIONS 2 AND 3 ARE ANSWERED IN THE NEGATIVE AND NO ANSWER IS REQUIRED TO QUESTION 4.