B-132057, MAY 18, 1965, 44 COMP. GEN. 729

B-132057: May 18, 1965

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SOCIAL SECURITY - MILITARY PERSONNEL - STATUS OF BACK PAY AS WAGES ALTHOUGH THE WAGE STATUS FOR SOCIAL SECURITY TAX PURPOSES OF A FORMER MEMBER OF THE UNIFORMED SERVICES WHO IS AWARDED A JUDGMENT BY THE COURT OF CLAIMS FOR BACK PAY AND ALLOWANCES FOR A PERIOD WHEN HE DID NOT PERFORM ANY MILITARY SERVICE IS A MATTER FOR DETERMINATION BY THE HEAD OF THE PARTICULAR FEDERAL AGENCY CONCERNED AND SUCH DETERMINATION IS FINAL AND CONCLUSIVE AND NOT AFFECTED BY THE SETTLEMENT ACTION MADE BY THE GENERAL ACCOUNTING OFFICE PURSUANT TO THE JUDGMENT UNDER 28 U.S.C. 2517 (A). 42 U.S.C. 410 (M) (1) AS INCLUDING SERVICE AS A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY AND THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22) MAKE IT DOUBTFUL WHETHER THE INDIVIDUAL COULD BE CONSIDERED EMPLOYED DURING THE BACK PAY PERIOD UNLESS THE COURT'S DECISION IS VIEWED AS CONFERRING ON HIM AN ACTIVE DUTY STATUS FOR SUCH PERIOD.

B-132057, MAY 18, 1965, 44 COMP. GEN. 729

SOCIAL SECURITY - MILITARY PERSONNEL - STATUS OF BACK PAY AS WAGES ALTHOUGH THE WAGE STATUS FOR SOCIAL SECURITY TAX PURPOSES OF A FORMER MEMBER OF THE UNIFORMED SERVICES WHO IS AWARDED A JUDGMENT BY THE COURT OF CLAIMS FOR BACK PAY AND ALLOWANCES FOR A PERIOD WHEN HE DID NOT PERFORM ANY MILITARY SERVICE IS A MATTER FOR DETERMINATION BY THE HEAD OF THE PARTICULAR FEDERAL AGENCY CONCERNED AND SUCH DETERMINATION IS FINAL AND CONCLUSIVE AND NOT AFFECTED BY THE SETTLEMENT ACTION MADE BY THE GENERAL ACCOUNTING OFFICE PURSUANT TO THE JUDGMENT UNDER 28 U.S.C. 2517 (A), THE DEFINITION OF "EMPLOYMENT" IN SECTION 210 OF THE SOCIAL SECURITY ACT, 42 U.S.C. 410 (M) (1) AS INCLUDING SERVICE AS A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY AND THE DEFINITION OF "ACTIVE DUTY" IN 10 U.S.C. 101 (22) MAKE IT DOUBTFUL WHETHER THE INDIVIDUAL COULD BE CONSIDERED EMPLOYED DURING THE BACK PAY PERIOD UNLESS THE COURT'S DECISION IS VIEWED AS CONFERRING ON HIM AN ACTIVE DUTY STATUS FOR SUCH PERIOD.

TO THE SECRETARY OF THE AIR FORCE, MAY 18, 1965:

BY LETTER FROM THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER,COLORADO, DATED MARCH 5, 1965, THERE HAS BEEN REFERRED TO OUR CLAIMS DIVISION FOR ITS CONSIDERATION AND ACTION, A LETTER FROM THE SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DATED FEBRUARY 15, 1965, PERTAINING TO THE WAGE STATUS UNDER THE SOCIAL SECURITY ACT, OF AN AWARD OF BACK PAY AND ALLOWANCES MADE TO JESSE FREDERICK MURRAY, MASTER SERGEANT, AF 14 073 711, BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF JESSE FREDERICK MURRAY V. UNITED STATES, 154 CT.CL. 185 (DECIDED JUNE 7, 1961).

PURSUANT TO A JUDGMENT RENDERED BY THE COURT OF CLAIMS ON MARCH 2, 1962, IN THE MURRAY CASE, OUR CLAIMS DIVISION BY SETTLEMENT DATED APRIL 24, 1962, ALLOWED THE PLAINTIFF THE SUM OF $15,998.82. THIS AMOUNT REPRESENTED PAY AND ALLOWANCES FOR THE PERIOD MAY 10, 1956, TO AUGUST 20, 1960, LESS THE SUM OF $5,980.30, THE PLAINTIFF RECEIVED AS BENEFIT PAYMENTS FROM THE VETERANS ADMINISTRATION DURING THE CORRESPONDING PERIOD.

THE LETTER OF THE SOCIAL SECURITY ADMINISTRATION STATES THAT ITS RECORDS DO NOT SHOW THAT THE AIR FORCE REPORTED THE PAY TO THE MEMBER ON SOCIAL SECURITY TAX RETURNS. THE LETTER REFERS TO SECTION 205 (P) OF THE SOCIAL SECURITY ACT AND REQUESTS THE AIR FORCE TO MAKE A DETERMINATION AS TO WHETHER THE PAYMENT MADE TO SERGEANT MURRAY PURSUANT TO THE COURT DECISION CONSTITUTES WAGES UNDER THE SOCIAL SECURITY ACT AND, IF SO, THAT THE AMOUNT THEREOF AND THE DATE OF PAYMENT BE FURNISHED. REQUEST WAS ALSO MADE AS TO WHETHER YOUR DEPARTMENT WILL REPORT THE AMOUNT ON SOCIAL SECURITY TAX RETURNS. IT WAS FURTHER STATED THAT IF A DETERMINATION IS MADE THAT THE PAYMENT DOES NOT CONSTITUTE WAGES UNDER THE SOCIAL SECURITY ACT, THE BASIS FOR THAT DETERMINATION SHOULD BE FURNISHED.

SECTION 205 (P) OF THE SOCIAL SECURITY ACT, 42 U.S.C. 405 (P), PROVIDES IN PERTINENT PART THAT WITH RESPECT TO SERVICE INCLUDED AS EMPLOYMENT UNDER SECTION 210 OF THE ACT (42 U.S.C. 410), WHICH IS PERFORMED IN THE EMPLOY OF THE UNITED STATES, INCLUDING SERVICE PERFORMED AFTER DECEMBER 1956 AS A MEMBER OF THE UNIFORMED SERVICE ON ACTIVE DUTY (42 U.S.C. 410 (M) (1) (, THE SECRETARY OF HEALTH, EDUCATION AND WELFARE SHALL ACCEPT THE DETERMINATION OF THE HEAD OF THE APPROPRIATE FEDERAL AGENCY OR INSTRUMENTALITY, AND OF SUCH AGENTS AS SUCH HEAD MAY DESIGNATE WITH RESPECT TO WHETHER AN INDIVIDUAL HAS PERFORMED SUCH SERVICE, THE AMOUNTS OF REMUNERATION FOR SUCH SERVICE WHICH CONSTITUTE WAGES UNDER THE PROVISIONS OF SECTION 209 OF THE ACT (42 U.S.C. 409), OR THE PERIODS IN WHICH OR FOR WHICH SUCH WAGES WERE PAID. SUCH DETERMINATIONS ARE TO BE EVIDENCED BY RETURNS FILED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3122 OF THE INTERNAL REVENUE CODE OF 1954, 26 U.S.C. 3122 AND CERTIFICATIONS MADE PURSUANT TO SECTION 205 (P) OF THE SOCIAL SECURITY ACT. SUCH DETERMINATIONS ARE FINAL AND CONCLUSIVE.

UNDER THE ABOVE STATUTE EITHER YOU OR YOUR DESIGNEE ARE AUTHORIZED TO MAKE A CONCLUSIVE DETERMINATION WHETHER ANY OF THE AMOUNT PAID TO MR. MURRAY PURSUANT TO THE COURT OF CLAIMS' JUDGMENT CONSTITUTES WAGES WITHIN THE MEANING OF THE SOCIAL SECURITY ACT AND TO CERTIFY SUCH MATTER TO THE SOCIAL SECURITY ADMINISTRATION. ACCORDINGLY, THE LETTER FROM THE SOCIAL SECURITY ADMINISTRATION IS BEING RETURNED TO YOUR DEPARTMENT FOR APPROPRIATE ACTION AND REPLY.

WE ARE ENCLOSING FOR YOUR INFORMATION COPIES OF OUR REPORTS TO THE CHIEF CLERK, UNITED STATES COURT OF CLAIMS, DATED SEPTEMBER 28 AND NOVEMBER 1, 1961, WHICH WE PREPARED IN RESPONSE TO THE PLAINTIFF'S MOTION FOR CALL AND WHICH SHOW THE COMPUTATION OF PAY AND ALLOWANCES DUE THE PLAINTIFF FOR THE PERIOD COVERED BY THE JUDGMENT OF THE COURT, LESS DEDUCTION FOR PAYMENTS MADE BY THE VETERANS' ADMINISTRATION. ALSO ENCLOSED IS A COPY OF CERTIFICATE OF SETTLEMENT ISSUED BY OUR OFFICE APRIL 24, 1962, EVIDENCING FINAL SETTLEMENT IN THE AMOUNT OF $15,998.82, ON ACCOUNT OF THE JUDGMENT RENDERED BY THE COURT OF CLAIMS IN THE CASE.

THE REPORTS TO THE CHIEF CLERK, COURT OF CLAIMS, REFERRED TO ABOVE, DID NOT TAKE INTO CONSIDERATION WITHHOLDING OF SOCIAL SECURITY TAX FROM THE AMOUNT FOUND DUE THE PLAINTIFF AND THEY ARE NOT CONCERNED WITH WHETHER THE PLAINTIFF IS ENTITLED TO ANY SERVICE CREDIT FOR SOCIAL SECURITY PURPOSES. FINAL JUDGMENTS OF THE COURT OF CLAIMS ARE PAID ON SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE ON PRESENTATION OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT AS PROVIDED BY SECTION 2517 (A) OF THE JUDICIAL CODE (28 U.S.C.). EXCEPT FOR THE ADDITION OF INTEREST IN CERTAIN CASES, AS PROVIDED BY 28 U.S.C. 2516 (B) AND SECTION 1302 OF THE ACT OF JULY 27, 1956, 70 STAT. 694, 31 U.S.C. 724A, AND EXCEPT FOR THE WITHHOLDING OF AN AMOUNT EQUAL TO A PLAINTIFF'S DEBT TO THE UNITED STATES, IN ACCORDANCE WITH THE PROCEDURES ESTABLISHED BY THE ACT OF MARCH 3, 1875, AS AMENDED, 31 U.S.C. 227, WE ARE NOT AUTHORIZED TO CERTIFY JUDGMENTS FOR PAYMENT OTHER THAN IN ACCORDANCE WITH THE TERMS OF THE FINAL JUDGMENT. UNITED STATES V. O-GRADY, 89 U.S. (22 WALL.) 641; BENEDICT V. UNITED STATES, 66 CT.CL. 437.

APPARENTLY, THE SOCIAL SECURITY ADMINISTRATION IS INTERESTED PRIMARILY IN OBTAINING A DETERMINATION AS TO WHETHER THE INDIVIDUAL CONCERNED IS TO BE REGARDED AS HAVING AN EMPLOYED STATUS DURING THE PERIOD COVERED BY THE JUDGMENT FOR PURPOSES OF SOCIAL SECURITY BENEFITS. AS INDICATED ABOVE, UNDER THE LAW SUCH A DETERMINATION IS THE RESPONSIBILITY OF YOUR DEPARTMENT AND WE DO NOT VIEW OUR SETTLEMENT ACTION ON THE JUDGMENT AS OPERATING IN ANY WAY TO AFFECT THAT DETERMINATION. POSSIBLY, OF SOME APPLICATION IN THE MATTER ARE THE PROVISIONS OF SECTION 410 (M) (1) OF TITLE 42, U.S.C. DEFINING THE TERM "EMPLOYMENT" FOR SOCIAL SECURITY PURPOSES AS INCLUDING "SERVICE PERFORMED AFTER DECEMBER 1956 BY AN INDIVIDUALAS A MEMBER OF THE UNIFORMED SERVICE ON ACTIVE DUTY" AND SECTION 101 (22) OF TITLE 10 OF THE U.S.C. DEFINING ,ACTIVE DUTY" AS FULL-TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, ETC. SINCE THE INDIVIDUAL IN THIS CASE DID NOT IN FACT PERFORM ANY MILITARY SERVICE DURING THE PERIOD COVERED BY THE JUDGMENT, IT WOULD APPEAR TO BE DOUBTFUL THAT HE IS TO BE REGARDED AS MEETING THE REQUIREMENTS OF THOSE DEFINITIONS UNLESS THE COURT'S DECISION IN THE CASE IS TO BE VIEWED AS OPERATING TO CONFER UPON HIM AN ACTIVE DUTY STATUS DURING SUCH PERIOD.