B-142023, DECEMBER 21, 1962, 42 COMP. GEN. 323

B-142023: Dec 21, 1962

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WHO WAS AWARDED ACTIVE DUTY PAY AND ALLOWANCES FROM DATE OF ILLEGAL DISCHARGE TO THE EXPIRATION OF HIS ENLISTMENT TERM. WHO WAS NOT TRANSFERRED BY THE SECRETARY OF THE NAVY TO THE FLEET RESERVE. IS NOT ENTITLED TO RETAINER PAY FOR ANY PERIOD SUBSEQUENT TO THE DATE OF ENTRY OF JUDGMENT. IS UNAUTHORIZED AND WOULD BE CONTRARY TO LAW. 1962: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. IN WHICH IT WAS HELD THAT HIS ADMINISTRATIVE DISCHARGE FROM THE NAVAL SERVICE ON DECEMBER 7. "WAS ILLEGAL" AND THAT SMITH WAS "ENTITLED TO JUDGMENT FOR ACTIVE DUTY PAY AND ALLOWANCES * * * FOR THE PERIOD FROM DECEMBER 8. - WHEN HE WAS DISCHARGED. WHEN THE TERM OF HIS ENLISTMENT WOULD HAVE ORDINARILY EXPIRED" AND TO THE "RETAINER PAY OF A FLEET RESERVIST FROM MAY 8.

B-142023, DECEMBER 21, 1962, 42 COMP. GEN. 323

PAY - RETIRED - FLEET RESERVISTS - STATUS OF PAY THE PLAINTIFF IN JAMES SMITH V. UNITED STATES, 155 CT.CL. 682, WHO WAS AWARDED ACTIVE DUTY PAY AND ALLOWANCES FROM DATE OF ILLEGAL DISCHARGE TO THE EXPIRATION OF HIS ENLISTMENT TERM, AND RETAINER PAY FROM THE END OF THE TERM TO THE DATE OF ENTRY OF JUDGMENT, BUT WHO WAS NOT TRANSFERRED BY THE SECRETARY OF THE NAVY TO THE FLEET RESERVE, IS NOT ENTITLED TO RETAINER PAY FOR ANY PERIOD SUBSEQUENT TO THE DATE OF ENTRY OF JUDGMENT, THE COURT OF CLAIMS DECISION BESTOWING NO REGULAR NAVY OR FLEET RESERVE STATUS ON THE PLAINTIFF, BUT SIMPLY AWARDING HIM A MONEY JUDGMENT THAT DID NOT AFFECT THE OFFICIAL RECORD OR COMPEL EXECUTIVE ACTION, AND ABSENT ACTION BY THE SECRETARY OF THE NAVY TO TRANSFER THE PLAINTIFF TO THE FLEET RESERVE, PAYMENT TO HIM OF RETAINER PAY, WHICH REQUIRES MEMBERSHIP IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, IS UNAUTHORIZED AND WOULD BE CONTRARY TO LAW.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, DECEMBER 21, 1962:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1962, FORWARDED HERE BY ENDORSEMENT OF OCTOBER 30, 1962, OF THE COMPTROLLER OF THE NAVY, REQUESTING DECISION CONCERNING THE RETAINER PAY STATUS OF JAMES SMITH, 212 -34-17, FORMER CHIEF BOATSWAIN'S MATE, U.S. NAVY. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-676 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REFER TO THE DECISION RENDERED DECEMBER 6, 1961, BY THE COURT OF CLAIMS IN FAVOR OF THE SUBJECT MAN IN THE CASE OF JAMES SMITH V. UNITED STATES, 155 CT.CL. 682, IN WHICH IT WAS HELD THAT HIS ADMINISTRATIVE DISCHARGE FROM THE NAVAL SERVICE ON DECEMBER 7, 1954,"WAS ILLEGAL" AND THAT SMITH WAS "ENTITLED TO JUDGMENT FOR ACTIVE DUTY PAY AND ALLOWANCES * * * FOR THE PERIOD FROM DECEMBER 8, 1954--- WHEN HE WAS DISCHARGED--- TO MAY 8, 1956, WHEN THE TERM OF HIS ENLISTMENT WOULD HAVE ORDINARILY EXPIRED" AND TO THE "RETAINER PAY OF A FLEET RESERVIST FROM MAY 8, 1956, TO THE DATE OF ENTRY OF JUDGMENT IN THIS PROCEEDING.'

IN RESPONSE TO A MOTION FOR CALL ALLOWED BY THE COURT DECEMBER 13, 1961, THIS OFFICE ON MARCH 5, 1962, FORWARDED TO THE CHIEF CLERK OF THE COURT OF CLAIMS A STATEMENT SHOWING THE SEVERAL ITEMS OF PAY AND ALLOWANCES, INCLUDING RETAINER PAY, WHICH THIS OFFICE CONSIDERED AS HAVING LEGALLY ACCRUED TO THE PLAINTIFF UNDER THE DECISION OF DECEMBER 6, 1961. THE TOTAL AMOUNT THEREIN SHOWN DUE, $14,843.30, EXCLUDED ANY CREDIT OF PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 8, 1954, TO NOVEMBER 10, 1955, INCLUSIVE, FOR THE REASON THAT THE PLAINTIFF WAS IN A NONPERFORMANCE OF DUTY AND NONPAY STATUS DURING THE PERIOD FEBRUARY 24, 1954, TO NOVEMBER 10, 1955, INCLUSIVE, WHILE RETAINED IN THE CUSTODY OF THE CALIFORNIA CIVIL AUTHORITIES. THE COMPUTATION OF ACTIVE DUTY PAY AND ALLOWANCES AND RETAINER PAY FOUND DUE HIM FOR THE PERIOD FROM NOVEMBER 11, 1955, TO DECEMBER 6, 1961, INCLUSIVE, DID NOT INCLUDE AS CREDITABLE SERVICE ANY PART OF THE PERIOD FEBRUARY 24, 1954, TO NOVEMBER 10, 1955, INCLUSIVE, RESULTING IN THE COMPLETION OF 22 YEARS OF CREDITABLE ACTIVE SERVICE ON MARCH 14, 1956, AND A 55 PERCENT MULTIPLIER IN THE COMPUTATION OF RETAINER PAY EFFECTIVE FROM MAY 9, 1956.

IN ITS FINAL ACTION IN THE CASE THE COURT OF CLAIMS ON JUNE 27, 1962, ENTERED A MONEY JUDGMENT IN THE AMOUNT OF $14,843.30, THEREBY ADOPTING OUR COMPUTATION OF MARCH 5, 1962, AND THE BASIS THEREFOR AS ABOVE SET FORTH. IT IS BELIEVED THAT THIS WILL RESOLVE THE DOUBT EXPRESSED IN THE LAST PARAGRAPH OF YOUR LETTER CONCERNING THE NUMBER OF YEARS (22) PROPERLY CREDITABLE IN DETERMINING THE MULTIPLIER FACTOR WHICH WAS USED IN COMPUTING THE AMOUNT OF RETAINER PAY DUE SMITH UNDER THE DECISION OF DECEMBER 6, 1961.

THE BASIC QUESTION PRESENTED IN YOUR LETTER IS WHETHER YOU ARE AUTHORIZED TO PAY RETAINER PAY TO SMITH COMMENCING DECEMBER 7, 1961. IN THAT CONNECTION YOU STATE "DOUBT EXISTS REGARDING HIS ENTITLEMENT TO RETAINER PAY AFTER 6 DECEMBER 1961 IN THE ABSENCE OF ANY ACTION BY THE SECRETARY OF THE NAVY TOWARDS TRANSFERRING HIM TO THE FLEET RESERVE.'

UNDER THE DECISION OF DECEMBER 6, 1961, COUPLED WITH THE ACTION OF THE COURT ON JUNE 27, 1962, THE PLAINTIFF BECAME ENTITLED TO A JUDGMENT FOR A SUM OF MONEY EQUAL TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 11, 1955, TO MAY 8, 1956, INCLUSIVE, AND RETAINER PAY FOR THE PERIOD MAY 9, 1956, TO DECEMBER 6, 1961, INCLUSIVE. THE DECISION OF DECEMBER 6, 1961, DID NOT AND COULD NOT BESTOW ON SMITH ANY STATUS IN THE REGULAR NAVY OR IN THE FLEET RESERVE, SINCE THE COURT OF CLAIMS WAS SIMPLY AWARDING A JUDGMENT IN THE NATURE OF MONEY DAMAGES COMPUTED ON THE BASIS OF ACTIVE DUTY PAY AND ALLOWANCES AND RETAINER PAY AS SHOWN ABOVE.

IN PATTERSON V. UNITED STATES, 141 CT.CL. 435, 438 (1958), THE COURT POINTED OUT THAT THE RENDERING OF A MONEY JUDGMENT "DOES NOT HAVE THE EFFECT OF ACTUALLY CHANGING AN OFFICIAL RECORD OR OF COMPELLING EXECUTIVE ACTION.' IN SAN MILLAN, JR. V. UNITED STATES, 139 CT.CL. 485, 487 (1957), THE COURT HELD THAT---

WHILE IT IS TRUE THAT THIS COURT CANNOT CONFER THE STATUS OF DISABILITY RETIREMENT ON A MEMBER OR FORMER MEMBER OF THE ARMED FORCES, ANY MORE THAN IT CAN RESTORE A WRONGFULLY DISCHARGED CIVIL SERVICE EMPLOYEE TO HIS JOB WITH THE FEDERAL GOVERNMENT, IT HAS LONG BEEN HELD THAT THIS COURT HAS JURISDICTION TO RENDER JUDGMENT FOR THE PAY WHICH WAS DENIED THE CLAIMANT BY THE ARBITRARY OR CAPRICIOUS ACTIONS OF THE ADMINISTRATIVE AGENCY OF THE GOVERNMENT. SEE FRIEDMAN V. UNITED STATES, 141 CT.CL. 239, 258-259 (1958) AND THE DECISION IN BETTS V. UNITED STATES, 145 CT.CL. 530, 536 (1959) IN WHICH THE COURT STATED---

THIS COURT HAS, OF COURSE, NO AUTHORITY TO APPOINT PERSONS TO PUBLIC OFFICE. IT DOES HAVE JURISDICTION TO AWARD THEM MONEY DAMAGES AS COMPENSATION FOR VIOLATIONS OF RIGHTS GRANTED TO THEM BY STATUTE OR REGULATION.

THE DECISION IN BETTS V. UNITED STATES CONCLUDES WITH THE OBSERVATION THAT "WHAT THE EXECUTIVE MAY OR MAY NOT DO BY WAY OF SPECIFIC CORRECTION OF ERRORS OR INJUSTICES WHICH ARE EMBODIED IN ITS MILITARY RECORDS IS NOT SUBJECT TO REVIEW BY THIS COURT.'

YOUR LETTER INDICATES THAT THE SECRETARY OF THE NAVY HAD NOT THEN TAKEN ANY ACTION TOWARDS TRANSFERRING SMITH TO THE FLEET RESERVE AND IT SEEMS REASONABLE TO ASSUME THAT NO SUCH ACTION HAS BEEN TAKEN TO DATE. RETAINER PAY LEGALLY MAY BE PAID BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT ONLY TO MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE AND, SINCE THE RECORD INDICATES THAT SMITH IS NOT A MEMBER OF EITHER OF THESE ORGANIZATIONS, THE PAYMENT TO HIM OF RETAINER PAY IS UNAUTHORIZED AND WOULD BE CONTRARY TO LAW.

THE DECISION OF DECEMBER 6, 1961, CLEARLY RECOGNIZES THE FACT THAT THE PLAINTIFF, SMITH, HAD NOT THEN (DECEMBER 6, 1961) BEEN TRANSFERRED BY THE DEPARTMENT OF THE NAVY TO THE FLEET RESERVE, THE COURT STATING

SINCE WE HAVE DECIDED THAT THE DISCHARGE (OF DECEMBER 7, 1954) WAS ILLEGAL, AND INASMUCH AS THE INVALID DISCHARGE ABORTED THE NORMAL COURSE OF EVENTS WHEREBY PLAINTIFF WOULD HAVE BEEN TRANSFERRED, UPON EXPIRATION OF HIS ENLISTMENT, TO THE FLEET RESERVE, PLAINTIFF IS ENTITLED TO RECOVER RETAINER PAY * * * FROM MAY 8, 1956 TO THE DATE JUDGMENT IS ENTERED IN THIS PROCEEDING.

ALSO, IN A STATEMENT DATED JULY 9, 1962, THE PLAINTIFF, SMITH, NOTIFIED THIS OFFICE AS FOLLOWS: TO WHOM IT MAY CONCERN:

I, JAMES SMITH, AM THE PLAINTIFF IN THE CASE OF JAMES SMITH V. UNITED STATES, COURT OF CLAIMS NO. 28-60, DECIDED DECEMBER 6, 1961, IN WHICH THE COURT, ON JUNE 27TH, 1962, ENTERED A MONEY JUDGMENT IN MY FAVOR IN THE SUM OF $14,843.30.

THE AMOUNT OF THE JUDGMENT AS ENTERED BY THE COURT IS SATISFACTORY TO ME AND NO FURTHER LEGAL PROCEEDINGS WILL BE TAKEN WITH RESPECT TO THE JUDGMENT OF THE COURT. IN MAKING THIS STATEMENT I DO WISH IT UNDERSTOOD THAT WHILE THE COURT HELD IN SUBSTANCE THAT I WAS ENTITLED TO THE RETAINER PAY OF A TRANSFERRED FLEET RESERVIST, CREDITED WITH MY LENGTH OF SERVICE, IT DID NOT AND COULD NOT ACTUALLY EFFECT MY TRANSFER TO THE FLEET RESERVE. I, OF COURSE, INTEND TO PURSUE THE MATTER OF OBTAINING TRANSFER TO THE FLEET RESERVE. I, OF COURSE, INTEND TO PURSUE THE MATTER OF OBTAINING TRANSFER TO THE FLEET RESERVE FURTHER BUT THAT WILL NOT BE IN THE COURT OF CLAIMS AS I RECOGNIZE THAT THE COURT OF CLAIMS CANNOT DIRECT MY TRANSFER TO THE FLEET RESERVE.

SINCE THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY AUTHORIZE PAYMENT OF RETAINER PAY TO JAMES SMITH ONLY UPON HIS PROPER TRANSFER TO THE FLEET RESERVE, YOU ARE NOT AUTHORIZED, SOLELY ON THE BASIS OF THE DECISION OF DECEMBER 6, 1961, AND THE MONEY JUDGMENT OF JUNE 27,1962, TO PAY RETAINER PAY TO HIM FOR ANY PART OF THE PERIOD SUBSEQUENT TO DECEMBER 6, 1961.