B-139857, SEPTEMBER 28, 1959, 39 COMP. GEN. 238

B-139857, SEPTEMBER 28, 1959, 39 COMP. GEN. 238

MILITARY PERSONNEL - RECORD CORRECTION - RETIREMENT - EFFECTIVE DATE FOR RETIRED PAY PURPOSES THE CORRECTION OF RECORDS OF AN ARMY ENLISTED MEMBER TO SHOW THE EFFECTIVE DATE OF PLACEMENT ON THE RETIRED LIST AS JANUARY 3, 1958, AND CONTINUATION IN AN ACTIVE DUTY STATUS UNTIL SUCH DATE, BECAUSE OF FAILURE TO TIMELY PROCESS THE MEMBER'S APPLICATION FOR RETIREMENT, DOES NOT CHANGE OR ABROGATE THE LAWS RELATING TO RETIRED PAY, PARTICULARLY THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, WHICH REQUIRES THAT RETIREMENTS TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT IS EFFECTIVE; THEREFORE, THE MEMBER MUST BE REGARDED AS BEING IN A NONPAY STATUS FOR THE PERIOD JANUARY 4, 1958, TO THE END OF THE MONTH, AND RETIRED PAY FOR THAT PERIOD IS REQUIRED TO BE REFUNDED.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, SEPTEMBER 28, 1959:

YOUR LETTER OF JUNE 1, 1959, FINCS-EA 201 SILVIS, GEORGE M., RA 6 871 1095, FORWARDED UNDER D.O. NO. 425, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY AN ATTACHED VOUCHER STATED IN THE AMOUNT OF $181.82, IN FAVOR OF SERGEANT FIRST-CLASS GEORGE M. SILVIS, RETIRED, REPRESENTING REFUND OF RETIRED PAY WITHHELD FOR MAY 1959, TO COVER OVERPAYMENT OF RETIRED PAY FOR THE PERIOD JANUARY 4 THROUGH JANUARY 31, 1958.

IT APPEARS THAT SERGEANT SILVIS WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 3914, AS AN ENLISTED MEMBER WITH OVER 20 YEARS OF FEDERAL SERVICE, SUCH ACTION BEING ACCOMPLISHED BY SPECIAL ORDERS NO. 226, DATED NOVEMBER 19, 1957, EFFECTIVE NOVEMBER 30, 1957. PAYMENT OF RETIRED PAY WAS MADE ON AND AFTER DECEMBER 1, 1957. IT IS REPORTED THAT SUCH ORDERS WERE MISPLACED AT HEADQUARTERS BATTERY, 67TH AAA GROUP, RAVENNA ARSENAL, APCO, OHIO, AND THAT AS A RESULT ,RETIREMENT WAS NOT PROCESSED" UNTIL JANUARY 3, 1958. A CLAIM WAS FILED BY SERGEANT SILVIS ON JANUARY 3, 1958, WITH THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS FOR CORRECTION OF HIS SERVICE RECORD TO SHOW ACTIVE DUTY FOR THE PERIOD DECEMBER 1, 1957, THROUGH JANUARY 3, 1958, INCLUSIVE. ACTING ON THE BOARD'S RECOMMENDATION, THE UNDER SECRETARY OF THE ARMY ON NOVEMBER 4, 1958, DIRECTED THE CORRECTION OF THE RECORDS OF SERGEANT SILVIS UNDER THE PROVISIONS OF 10 U.S.C 1552 "TO SHOW THAT SO MUCH OF PARAGRAPH 115, SPECIAL ORDERS NUMBER 226, DEPARTMENT OF THE ARMY, DATED 19 NOVEMBER 1957 AS PERTAINS TO HIS EFFECTIVE DATE OF PLACEMENT ON THE RETIRED LIST AND TRANSFER TO THE UNITED STATES ARMY RESERVE, IS AMENDED TO READ 3 JANUARY 1958.'

UPON CORRECTION OF THE MEMBER'S RECORDS, PAYMENT OF ACTIVE DUTY PAY, ACCRUED LEAVE, AND RATIONS ALLOWANCES WAS MADE FOR THE PERIOD DECEMBER 1, 1957, THROUGH JANUARY 3, 1958, IN THE AMOUNT OF $354.36, LESS RETIRED PAY FOR THE SAME PERIOD PREVIOUSLY PAID, IN THE AMOUNT OF $222.22. YOU STATE THAT RETIRED PAY FOR THE PERIOD JANUARY 4, 1958, THROUGH JANUARY 31, 1958, IN THE AMOUNT OF $181.82, HAS BEEN WITHHELD FROM THE MAY 1959 RETIRED PAY OF THE MEMBER, AND THAT INASMUCH AS THE STATUTE GOVERNING HIS RETIREMENT DOES NOT PROVIDE FOR RETIREMENT ON AN INTERMEDIATE DAY OF THE MONTH AND IN VIEW OF THE FACT THAT THE CORRECTION MADE IN HIS RECORDS UNDER 10 U.S.C. 1552, IS NOT IN CONSONANCE WITH THE UNIFORM RETIREMENT DATE ACT, DOUBT EXISTS AS TO WHETHER SERGEANT SILVIS IS ENTITLED TO REFUND OF THE $181.82 WITHHELD FROM HIS MAY 1959 RETIRED PAY.

SECTION 4 OF THE ACT OF OCTOBER 6, 1945, PUBLIC LAW 190, AS AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 996, NOW CODIFIED IN 10 U.S.C. 3914, PROVIDES FOR THE RETIREMENT OF A REGULAR ENLISTED MEMBER OF THE ARMY WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE. RETIREMENTS EFFECTED UNDER SUCH STATUTORY PROVISIONS ARE SUBJECT TO THE UNIFORM RETIREMENT DATE ACT.

SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, NOW CODIFIED IN 10 U.S.C. 1552, AUTHORIZES THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, TO CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.

THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930 (QUOTING FROM 5 U.S.C. 47A) PROVIDES:

RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE

FROM THE ENCLOSURES SUBMITTED, IT APPEARS THAT THE FAILURE TO COMPLETE THE PROCESSING OF THE MEMBER'S RETIREMENT PRIOR TO JANUARY 3, 1958, RESULTED IN HIS SPENDING A PERIOD OF TIME AT HIS STATION BEYOND THE INTENDED DATE OF HIS RETIREMENT ( NOVEMBER 30, 1957) AND THAT THE CORRECTION OF THE RECORD WAS EFFECTED UNDER SECTION 1552 OF TITLE 10, U.S. CODE, TO INSURE THE MEMBER FULL ACTIVE DUTY PAY BENEFITS FOR THIS PERIOD OF TIME.

ALTHOUGH THE BOARD FOR CORRECTION OF MILITARY RECORDS MADE A FINDING THAT THE MEMBER HAD SERVED ON ACTIVE DUTY FOR THE PERIOD DECEMBER 1, 1957, THROUGH JANUARY 3, 1958, AND HIS RECORD WAS CORRECTED TO SHOW THE EFFECTIVE DATE OF HIS PLACEMENT ON THE RETIRED LIST AS JANUARY 3, 1958, PAYMENTS BASED ON SUCH CORRECTION ARE REQUIRED TO BE MADE IN THE AMOUNTS DETERMINED TO BE DUE BY APPLYING PERTINENT LAWS AND REGULATIONS TO ALL THE MATERIAL FACTS SHOWN BY THE RECORD AS SO CORRECTED. 34 COMP. GEN. 7; 38 ID. 208. THE RECORD AS CORRECTED IN SERGEANT SILVIS' CASE, FIXED JANUARY 3, 1958, AS THE EFFECTIVE DATE OF HIS RETIREMENT. SUCH RECORD DOES NOT ENTITLE HIM TO RETIRED PAY FOR THE PERIOD JANUARY 4 THROUGH JANUARY 31, 1958, SINCE APPLICABLE LAW 15 U.S.C. 47A) REQUIRES THAT SUCH RETIREMENTS SHALL "TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE.' A RIGHT TO RETIRED PAY DOES NOT ACCRUE TO ANYONE PRIOR TO HIS ACQUISITION OF A RETIRED STATUS.

THE AUTHORITY CONTAINED IN 10 U.S.C. 1552 FOR CHANGING MATTERS OF RECORD TO CORRECT AN ERROR OR REMOVE AN INJUSTICE RELATES ONLY TO MATTERS OF FACT, NOT PROVISIONS OF LAW, THE LAWS AND REGULATIONS PERTINENT TO ALL THE MATERIAL FACTS SHOWN BY THE RECORD AS SO CORRECTED ARE NOT CHANGED OR ABROGATED IN ANY WAY BY THE MERE ACT OF CORRECTION.

UNDER THE RECORD AS CORRECTED IT APPEARS THAT SERGEANT SILVIS MUST BE REGARDED AS BEING IN A NONPAY STATUS FOR THE PERIOD JANUARY 4 TO 31, 1958, SINCE HE PERFORMED NO MILITARY DUTIES AND HE WAS PAID FOR ALL ACCRUED LEAVE EARNED PRIOR TO JANUARY 4, 1958. SUCH CONCLUSION IS BASED ON THE PROVISIONS OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (B), WHICH BAR PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR PERIODS OF ABSENCE OVER LEAVE (UNLESS EXCUSED AS UNAVOIDABLE) AND FOR PERIODS OF ABSENCE AUTHORIZED BY THE SECRETARY "IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT.'

ACCORDINGLY, PAYMENT ON THE VOUCHER COVERING RETIRED PAY FOR SERGEANT SILVIS FOR THE PERIOD JANUARY 4-31, 1958, MAY NOT BE MADE ON THE PRESENT RECORD AND SUCH VOUCHER WILL BE RETAINED HERE.