B-140268, OCTOBER 26, 1959, 39 COMP. GEN. 312

B-140268: Oct 26, 1959

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MILITARY PERSONNEL - RETIREMENT ORDERS - EFFECTIVE DATE - NOTICE - ACTIVE DUTY PAY - DE FACTO RULE TO PERMIT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES AFTER THE FIRST OF THE MONTH IN WHICH THEIR RETIREMENT IS EFFECTIVE UNTIL THE RETIREMENT ORDERS ARE ACTUALLY DELIVERED TO THE MEMBER. IT MUST BE SHOWN THAT THE MEMBER DID NOT RECEIVE NOTICE OF HIS RETIREMENT ORDERS UNTIL THEY WERE DELIVERED. IN CASES WHERE ADVANCE NOTICE OF RETIREMENT ORDERS WAS GIVEN BUT SUCH ORDERS WERE NOT DELIVERED AND AN ATTEMPT WAS MADE TO REVOKE THEM. THE MEMBER WOULD HAVE HAD NO NOTICE OR KNOWLEDGE OF THE LACK OF LEGAL AUTHORITY AND HIS ACTIVE SERVICE EVEN AFTER NOTICE WOULD BE UNDER COLOR OF AUTHORITY FOR APPLICATION OF THE DE FACTO RULE TO PERMIT REPAYMENT OF PAY AND ALLOWANCES COLLECTED FOR SUCH PERIOD.

B-140268, OCTOBER 26, 1959, 39 COMP. GEN. 312

MILITARY PERSONNEL - RETIREMENT ORDERS - EFFECTIVE DATE - NOTICE - ACTIVE DUTY PAY - DE FACTO RULE TO PERMIT PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES AFTER THE FIRST OF THE MONTH IN WHICH THEIR RETIREMENT IS EFFECTIVE UNTIL THE RETIREMENT ORDERS ARE ACTUALLY DELIVERED TO THE MEMBER, IT MUST BE SHOWN THAT THE MEMBER DID NOT RECEIVE NOTICE OF HIS RETIREMENT ORDERS UNTIL THEY WERE DELIVERED; HOWEVER, IN CASES WHERE ADVANCE NOTICE OF RETIREMENT ORDERS WAS GIVEN BUT SUCH ORDERS WERE NOT DELIVERED AND AN ATTEMPT WAS MADE TO REVOKE THEM--- AFTER THEY BECAME EFFECTIVE--- AND REPLACE THEM WITH ORDERS WHICH DIRECT RETIREMENT AT A LATER DATE, THE MEMBER WOULD HAVE HAD NO NOTICE OR KNOWLEDGE OF THE LACK OF LEGAL AUTHORITY AND HIS ACTIVE SERVICE EVEN AFTER NOTICE WOULD BE UNDER COLOR OF AUTHORITY FOR APPLICATION OF THE DE FACTO RULE TO PERMIT REPAYMENT OF PAY AND ALLOWANCES COLLECTED FOR SUCH PERIOD.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, OCTOBER 26, 1959:

YOUR LETTER OF JULY 9, 1959, FORWARDED HERE BY FIRST ENDORSEMENT OF JULY 17, 1959, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 436 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING ACTIVE DUTY PAY IN EXCESS OF RETIRED PAY IN THE CASES OF SERGEANT FIRST-CLASS JULIAN BURNS, RA 6 370 251; FIRST LIEUTENANT (THEN MASTER SERGEANT) WILLIAM J. DEPT, O 493 165; MASTER SERGEANT RALPH A. GROOVER, RA 6 382 650; MASTER SERGEANT VICTORIO L. LEYSON, RA 6 738 404; AND THE ESTATE OF SERGEANT ROBERT J. SHULL, RA 20 827 503, DECEASED. ALL CASES CONCERN THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES FROM THE DATE THE MEMBERS WERE ORIGINALLY RETIRED TO THE DATE OF A QUESTIONED SUBSEQUENT RETIREMENT. IN ALL CASES ORDERS WERE ISSUED CANCELING ORIGINAL RETIREMENT ORDERS AND FURTHER ORDERS WERE ISSUED DIRECTING RETIREMENT AT A LATER DATE. YOU REPORT THAT ON THE BASIS OF OUR DECISION OF DECEMBER 19, 1956, B 129742, THE AMOUNTS INVOLVED HAVE BEEN ENTERED FOR COLLECTION AGAINST THE RETIRED PAY ACCOUNTS OF THE INDIVIDUALS LISTED. IT IS ASSUMED THAT SUCH AMOUNTS HAVE BEEN COLLECTED. IN VIEW OF CERTAIN OTHER DECISIONS MENTIONED IN YOUR LETTER, YOU EXPRESS DOUBT AS TO WHETHER THE SECOND RETIREMENT IS THE LEGAL RETIREMENT AND WHETHER ACTIVE DUTY PAY IS DUE FROM THE DATE OF THE FIRST RETIREMENT TO THE EFFECTIVE DATE OF THE SECOND RETIREMENT.

IN B-129742, DATED DECEMBER 19, 1956, WE HELD, REFERRING TO 32 COMP. GEN. 558, 559, THAT, IF A MEMBER IS LEGALLY RETIRED, HIS CHANGE OF STATUS BECOMES AN ACCOMPLISHED FACT AND CANNOT BE UNDONE RETROACTIVELY. THUS, A MEMBER'S RETIREMENT EFFECTIVE AT THE END OF A PARTICULAR MONTH IS NOT AFFECTED BY A PURPORTED REVOCATION OF THE RETIREMENT ORDERS BY ORDERS ISSUED SUBSEQUENT TO THAT MONTH. HOWEVER, IT WAS RECOGNIZED IN 31 COMP. GEN. 296 THAT RETIREMENT PROCEEDINGS MAY BE REOPENED UPON A SHOWING OF FRAUD, SUBSTANTIAL NEW EVIDENCE, MISTAKE IN LAW, OR MATHEMATICAL MISCALCULATION. IN SITUATIONS WHERE, BEFORE THE RETIRED STATUS OF THE MEMBER BECOMES LEGALLY EFFECTIVE, THE INITIAL RETIRING ACTION IS CANCELED OR REVOKED, THE MEMBER'S ACTIVE DUTY STATUS REMAINS UNCHANGED. 32 COMP. GEN. 558.

IN 30 COMP. GEN. 195, WE QUOTED WITH APPROVAL FROM TERRY V. UNITED STATES, 81 C.1CLS. 958, THE STATEMENT THAT:

* * * IT HAS BEEN UNIFORMLY HELD THAT IN THE ABSENCE OF ORDERS PRIOR TO RETIREMENT DEFINITELY ASSIGNING AN OFFICER TO DUTY AFTER RETIREMENT OR ORDERS ISSUED SUBSEQUENT TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY AN OFFICER'S ACTIVE-DUTY PAY CEASES ON THE DAY ON WHICH HE WAS ORDERED TO BE PLACED ON THE RETIRED LIST.

HOWEVER, IT WAS CONCLUDED THAT SINCE THE CLAIMANT IN THAT CASE DID NOT RECEIVE NOTICE OF HIS RETIREMENT UNTIL SOME TIME AFTER HE WAS PAID ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD THERE INVOLVED, THERE WAS FOR APPLICATION THE RULE THAT A PERSON WHO CAN ESTABLISH THAT HE RECEIVED PAY AND ALLOWANCES UNDER COLOR OF AUTHORITY IN A DE FACTO STATUS MAY RETAIN SUCH PAY AND ALLOWANCES AND WHERE IT HAS BEEN REFUNDED TO THE GOVERNMENT, HE IS ENTITLED TO RECOVER IT BACK. UNITED STATES V. ROYER, 268 U.S. 394; CF. 5 COMP. GEN. 70; 6 ID. 71; ID. 263.

THE COURT OF CLAIMS CASE OF CRIST V. UNITED STATES, 124 C.1CLS. 825, INVOLVED A MEMBER WHO HAD RECEIVED ACTIVE DUTY PAY AND ALLOWANCES UNTIL DATE OF DELIVERY OF HIS RETIREMENT ORDERS BUT FROM WHOM THE EXCESS OVER RETIRED PAY LATER WAS COLLECTED. THE DECISION IS BASED ON THE PROVISIONS OF SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, 37 U.S.C. 314, AND DOES NOT MENTION THE DE FACTO RULE. THE COURT CONSTRUED THE PROVISIONS OF SECTION 514 AS MAKING NO DISTINCTION BETWEEN ACTIVE DUTY BEFORE AND AFTER RETIREMENT AND AS STIPULATING THAT RETIRED MEMBERS SHALL BE ENTITLED TO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES WHEN SERVING ON ACTIVE DUTY. THE PLAINTIFF, CRIST, WAS REGARDED AS SERVING ON ACTIVE DUTY AND SUBJECT TO ASSIGNMENT UNTIL HE WAS DIRECTED OTHERWISE BY THE DELIVERY OF THE RETIREMENT ORDERS TO HIM. THE COURT CONCLUDED THAT HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD OF HIS CLAIM FROM THE EFFECTIVE DATE OF SUCH ORDERS ON THE FIRST DAY OF THE MONTH UNTIL THEY ACTUALLY WERE DELIVERED TO HIM LATER IN THE SAME MONTH. WHILE IT WAS NOT SHOWN THAT THE PLAINTIFF DID NOT RECEIVE NOTICE OF HIS RETIREMENT ORDERS UNTIL THEY WERE DELIVERED TO HIM, IT IS OUR VIEW THAT THE RULE OF THE CRIST CASE SHOULD BE RESTRICTED TO SITUATIONS WHERE THE MEMBER INVOLVED DOES NOT RECEIVE NOTICE OF HIS RETIREMENT ORDERS UNTIL THEY ARE DELIVERED TO HIM. SEE 35 COMP. GEN. 225; ID. 489. HENCE, IN CASES OF THIS KIND ACTIVE DUTY PAY AND ALLOWANCES SHOULD NOT BE PAID FOR ANY PERIOD SUBSEQUENT TO THE EFFECTIVE DATE OF RETIREMENT EXCEPT FOR PERIODS OF ACTIVE DUTY PERFORMED PRIOR TO NOTICE OF RETIREMENT. HOWEVER, IN CASES WHERE ADVANCE NOTICE OF RETIREMENT ORDERS WAS GIVEN BUT SUCH ORDERS WERE NOT DELIVERED AND AN ATTEMPT WAS MADE TO REVOKE THEM--- AFTER THEY BECAME EFFECTIVE--- AND REPLACE THEM WITH ORDERS DIRECTING RETIREMENT AT A LATER DATE UNDER CIRCUMSTANCES WHERE THE MEMBER APPARENTLY WOULD HAVE HAD NO NOTICE OR KNOWLEDGE OF THE LACK OF LEGAL AUTHORITY FOR SUCH ACTION, IT WOULD SEEM THAT HIS SERVICE EVEN AFTER NOTICE WOULD BE UNDER COLOR OF AUTHORITY AND THUS PERMIT REPAYMENT TO HIM, UNDER THE DE FACTO RULE, OF THE PAY AND ALLOWANCES PAID FOR THAT PERIOD AND SUBSEQUENTLY COLLECTED FROM HIM.

YOU STATE THAT SERGEANT BURNS FILED HIS APPLICATION ON JUNE 15, 1954, FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 4, PUBLIC LAW 190, 79TH CONGRESS, 59 STAT. 838 (ACT OF OCTOBER 6, 1945), AS AMENDED, 10 U.S.C. 948 (1952 USED.), AS AN ENLISTED MEMBER AFTER 24 YEARS OF ACTIVE FEDERAL SERVICE. BY DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 175, DATED SEPTEMBER 3, 1954, SERGEANT BURNS WAS PLACED ON THE RETIRED LIST OF THE ARMY AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE (RETIRED), EFFECTIVE SEPTEMBER 30, 1954. ON SEPTEMBER 30, 1954, ADJUTANT GENERAL RECEIVED A MESSAGE DATED SEPTEMBER 29, 1954, FROM THE MEMBER'S HEADQUARTERS AT WOLTERS AIR FORCE BASE, TEXAS, WHICH REQUESTED NEW ORDERS FOR RETIREMENT BECAUSE THE ORDERS OF SEPTEMBER 3, 1954, WERE RECEIVED TOO LATE FOR SEPTEMBER SEPARATION. SPECIAL ORDER NO. 195, DATED OCTOBER 4, 1954, REVOKED THE RETIREMENT ORDERS OF SEPTEMBER 3, 1954, AND SPECIAL ORDER NO. 197, DATED OCTOBER 6, 1954, DIRECTED RETIREMENT EFFECTIVE OCTOBER 31, 1954. THE MEMBER WAS PAID ACTIVE DUTY PAY TO INCLUDE OCTOBER 31, 1954.

THE FACTS IN THIS CASE SHOW THAT SERGEANT BURNS' RETIREMENT BECAME LEGALLY EFFECTIVE SEPTEMBER 30, 1954, AND THE ORDERS OF OCTOBER 4, 1954, WERE WITHOUT EFFECT TO REVOKE THE ORDERS OF SEPTEMBER 3, 1954, WHICH DIRECTED HIS RETIREMENT. SEE 37 COMP. GEN. 19. HOWEVER, WHILE IT APPEARS THAT HE WAS AT HIS STATION WHEN THE ORDERS OF SEPTEMBER 3, 1954, WERE RECEIVED AT THAT PLACE AND THUS MAY HAVE BEEN APPRISED OF THE EXISTENCE OF SUCH ORDERS, THERE IS NOTHING TO SHOW THAT HE DID NOT BELIEVE THAT HE SERVED ON ACTIVE DUTY DURING THE MONTH OF OCTOBER 1954 UNDER VALID ORDERS. HAVING SERVED UNDER SUCH COLOR OF AUTHORITY, ACTIVE DUTY PAY AND ALLOWANCES PAID FOR THE PERIOD OCTOBER 1-31, 1954, MAY BE RETAINED BY HIM OR REPAID TO HIM UNDER THE DE FACTO RULE.

SERGEANT DEPT'S RETIREMENT WAS DIRECTED TO BE EFFECTIVE MARCH 31, 1956, BY DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 62, DATED MARCH 28, 1956. APPARENTLY, A MESSAGE TO THAT EFFECT WAS DISPATCHED TO HIS STATION IN PAKISTAN ON THE SAME DAY. THE RECORD DOES NOT DISCLOSE WHETHER HE RECEIVED NOTICE OF HIS RETIREMENT BEFORE APRIL 1, 1956. THOSE ORDERS WERE REVOKED BY SPECIAL ORDER NO. 65, APRIL 2, 1956, PURSUANT TO A MESSAGE REQUESTING SUCH ACTION FOR THE REASON THAT HIS SECURITY CLEARANCE PROCESSING FOR A CIVILIAN FEDERAL POSITION HE APPLIED FOR WOULD REQUIRE FROM 45 TO 60 DAYS. IT WAS STATED FURTHER THAT HE WAS NEEDED AT HIS ACTIVE DUTY STATION FOR THAT LENGTH OF TIME. LATER HIS RETIREMENT WAS DIRECTED EFFECTIVE MAY 31, 1956, BY SPECIAL ORDER NO. 103, DATED MAY 24, 1956. HE RECEIVED ACTIVE DUTY PAY AND ALLOWANCES FOR THE MONTH OF MAY 1956.

PRESUMABLY, THE INFORMATION REGARDING THE LENGTH OF TIME NEEDED FOR SECURITY CLEARANCE WAS FURNISHED BY THE ENLISTED MAN WHEN HE WAS INFORMED OF HIS RETIREMENT EFFECTIVE MARCH 31, 1956. WHILE HE MAY HAVE REQUESTED THAT HIS RETIREMENT BE POSTPONED TO MAY 31, 1956, THERE APPEARS TO BE NO BASIS FOR A CONCLUSION THAT HE WAS AWARE OF ANY LACK OF AUTHORITY FOR THE ACTION TAKEN IN HIS CASE OR THAT HE KNEW THAT HE WAS ACTUALLY RETIRE EFFECTIVE MARCH 31, 1956. ACCORDINGLY, THE ACTIVE DUTY PAY AND ALLOWANCES PAID FOR THE MONTHS OF APRIL AND MAY 1956, MAY BE REPAID TO HIM.

SERGEANT GROOVER FILED HIS APPLICATION ON MARCH 9, 1956, FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS AMENDED, AS HAVING OVER 20 YEARS' ACTIVE SERVICE. ON MARCH 23, 1956, DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 59 WAS ISSUED AND MAILED TO HIS STATION AT FORT RILEY, KANSAS, DIRECTING HIS RETIREMENT EFFECTIVE MARCH 31, 1956. THE RECORD DOES NOT INDICATE WHEN THOSE ORDERS WERE RECEIVED, NOR THE DATE A REQUEST WAS MADE TO THE COMMANDING GENERAL AT THAT STATION FOR REVOCATION OF THE RETIREMENT ORDERS. HOWEVER, UPON REQUEST OF THAT OFFICER, DATED APRIL 3, 1956, THE ORDERS OF MARCH 23, 1956, WERE REVOKED APRIL 5, 1956, AND ON APRIL 11, 1956, DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 72 DIRECTED SERGEANT GROOVER'S RETIREMENT EFFECTIVE APRIL 30, 1956. THE MEMBER RECEIVED ACTIVE DUTY PAY AND ALLOWANCES THROUGH THE LATTER DATE.

IT IS REPORTED THAT SERGEANT GROOVER CLAIMS HE HAD NO NOTICE OF THE FIRST RETIREMENT ORDERS AND THERE IS NOTHING IN THE RECORD TO CONTRADICT HIS STATEMENT. ACCORDINGLY, UNDER EITHER THE DELAYED NOTICE PRINCIPLE OR THE DE FACTO PRINCIPLE SET FORTH ABOVE HE IS ENTITLED TO A REFUND OF THE PAY AND ALLOWANCES FOR THE PERIOD APRIL 1-30, 1956, WHICH HAD BEEN PAID TO HIM AND WAS THEN COLLECTED BACK FROM HIM.

SERGEANT LEYSON FILED HIS APPLICATION FOR RETIREMENT ON NOVEMBER 12, 1953, UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF OCTOBER 6, 1945, AS AMENDED, AS AN ENLISTED MAN HAVING OVER 21 YEARS' ACTIVE SERVICE. SINCE HE WAS SERVING OVERSEAS, HE WAS TRANSFERRED TO CAMP KILMER, NEW JERSEY, FOR RETIREMENT PROCEEDINGS. DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 49, DATED MARCH 11, 1954, DIRECTED HIS RETIREMENT EFFECTIVE MARCH 31, 1954. HOWEVER, HIS RETIREMENT PROCEEDINGS WERE NOT THEN COMPLETED--- APPARENTLY BECAUSE OF HIS ERRONEOUS BELIEF THAT HE WAS NOT BEING CREDITED WITH SUFFICIENT SERVICE--- AND PURSUANT TO A REQUEST MADE BY THE COMMANDING GENERAL AT CAMP KILMER, DATED MAY 4, 1954, HIS RETIREMENT ORDERS WERE REVOKED ON MAY 17, 1954, AND RETIREMENT ORDERS DATED MAY 18, 1954, DIRECTED HIS RETIREMENT EFFECTIVE MAY 31, 1954. THE MEMBER WAS PAID ACTIVE DUTY PAY AND ALLOWANCES THROUGH MAY 31, 1954.

WHILE THERE IS NO EVIDENCE OF ANY MISTAKE OR OTHER CIRCUMSTANCE WHICH WOULD PERMIT THE REOPENING OF THE RETIREMENT PROCEEDINGS PERTAINING TO SERGEANT LEYSON'S LEGAL RETIREMENT EFFECTIVE MARCH 31, 1954, THE ORDERS ISSUED IN THIS CASE FURNISHED SUFFICIENT COLOR OF AUTHORITY FOR HIS ACTIVE SERVICE AFTER THAT DATE TO ENTITLE HIM, UNDER THE DE FACTO RULE, TO A REFUND OF THE ACTIVE DUTY PAY AND ALLOWANCES WHICH HAD BEEN PAID TO HIM AND WERE THEN COLLECTED FROM HIM FOR THE PERIOD APRIL 1 TO MAY 31, 1954.

THE LATE SERGEANT SHULL WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 29, 1957, BY REASON OF 100 PERCENT PERMANENT PHYSICAL DISABILITY, UNDER THE PROVISIONS OF 10 U.S.C. 1201, PURSUANT TO ORDERS DATED APRIL 22, 1957. THE COMMANDING GENERAL, LETTERMAN ARMY HOSPITAL--- THE ENLISTED MAN WAS THEN HOSPITALIZED AT THAT PLACE--- WAS NOTIFIED OF SUCH ORDERS BY DISPATCH DATED THE SAME DAY. SUCH ORDERS WERE REVOKED APRIL 30, 1957, IN ACCORDANCE WITH A MESSAGE REQUEST FROM THAT OFFICER DATED APRIL 29, 1957, FOR THE REASON THAT THE MEMBER WAS ILL AND HIS RECOVERY DOUBTFUL, AND IF HIS RETIREMENT WERE EFFECTED AT THAT TIME, HIS SURVIVORS WOULD SUFFER MATERIAL LOSS. UPON THE MEMBER'S OWN REQUEST HIS RETIREMENT WAS MADE EFFECTIVE JULY 8, 1957, BY SPECIAL ORDER NO. 128, DATED JULY 1, 1957. PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES WAS MADE THROUGH JULY 8, 1957. HE DIED ON JULY 12, 1957.

IN THIS CASE, THE ORDERS OF APRIL 22, 1957, WERE NOT REVOKED BEFORE THEY BECAME LEGALLY EFFECTIVE. HOWEVER, SINCE IT APPEARS THAT HE SERVED ON ACTIVE DUTY THROUGH JULY 8, 1957, UNDER ORDERS FURNISHING COLOR OF AUTHORITY FOR SUCH DUTY, HE IS ENTITLED TO A REFUND OF THE ACTIVE DUTY PAY AND ALLOWANCES COLLECTED FROM HIM WHICH HAD PREVIOUSLY BEEN PAID TO HIM FOR SUCH DUTY.

ACCORDINGLY, THE VOUCHER IS RETURNED HEREWITH AND PAYMENT THEREON MAY BE MADE IN ACCORDANCE WITH THE PRINCIPLES SET FORTH ABOVE, IF OTHERWISE CORRECT.

TO THE EXTENT THAT THEY ARE APPLICABLE, THE PRINCIPLES SET FORTH HEREIN MAY BE USED IN THE ADMINISTRATIVE SETTLEMENT OF THE SIMILAR CASES REFERRED TO IN THE FINAL PARAGRAPH OF YOUR LETTER. HOWEVER, SHOULD THERE BE ANY DOUBT IN ANY PARTICULAR CASE, THE MATTER SHOULD BE SUBMITTED HERE FOR ADVANCE DECISION.