B-151200, MAY 6, 1963, 42 COMP. GEN. 617

B-151200: May 6, 1963

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THE OFFICER HAVING BEEN PLACED IN THE SAME POSITION INSOFAR AS HIS RIGHT TO PAY AND ALLOWANCES IS CONCERNED AS THOUGH HE HAD NOT BEEN DISCHARGED AND PAID SEVERANCE PAY. THE LEGAL BASIS OF THE SEVERANCE PAY WAS REMOVED AND THE PAYMENT BECAME AN ERRONEOUS PAYMENT. WHICH LIMITS THE AMOUNT TO BE DEDUCTED TO NOT OVER TWO-THIRDS OF THE PAY FROM WHICH THE DEDUCTIONS ARE MADE. THE ENTIRE AMOUNT OF THE OFFICER'S RETIRED PAY NEED NOT BE WITHHELD TO LIQUIDATE HIS INDEBTEDNESS AS IS THE CASE WHEN THE CORRECTION ACTION AUTHORIZES PAYMENT OF RETIRED PAY RETROACTIVELY TO THE TIME THE MEMBER WAS PAID SEVERANCE PAY. THE ENTIRE AMOUNT OF WHICH IS PRESENTLY BEING WITHHELD TO LIQUIDATE HIS INDEBTEDNESS IN THE AMOUNT OF $8.

B-151200, MAY 6, 1963, 42 COMP. GEN. 617

PAY - WITHHOLDING - DEBT LIQUIDATION - SEVERANCE PAY UPON THE CORRECTION OF MILITARY RECORDS UNDER THE AUTHORITY OF 10 U.S.C. 1552 TO SHOW THE RESIGNATION OF AN AIR FORCE OFFICER IN LIEU OF DISCHARGE WITH SEVERANCE PAY AND HIS APPOINTMENT AS AN OFFICER IN THE UNITED STATES AIR FORCE RESERVE AND IMMEDIATE ACTIVE DUTY IN THAT STATUS, THE OFFICER HAVING BEEN PLACED IN THE SAME POSITION INSOFAR AS HIS RIGHT TO PAY AND ALLOWANCES IS CONCERNED AS THOUGH HE HAD NOT BEEN DISCHARGED AND PAID SEVERANCE PAY, THE LEGAL BASIS OF THE SEVERANCE PAY WAS REMOVED AND THE PAYMENT BECAME AN ERRONEOUS PAYMENT, SUBJECT TO COLLECTION UNDER THE ACT OF JULY 15, 1954, 5 U.S.C. 46D, WHICH LIMITS THE AMOUNT TO BE DEDUCTED TO NOT OVER TWO-THIRDS OF THE PAY FROM WHICH THE DEDUCTIONS ARE MADE, AND, THEREFORE, THE ENTIRE AMOUNT OF THE OFFICER'S RETIRED PAY NEED NOT BE WITHHELD TO LIQUIDATE HIS INDEBTEDNESS AS IS THE CASE WHEN THE CORRECTION ACTION AUTHORIZES PAYMENT OF RETIRED PAY RETROACTIVELY TO THE TIME THE MEMBER WAS PAID SEVERANCE PAY.

TO THE SECRETARY OF THE AIR FORCE, MAY 6, 1963:

THERE HAS COME TO OUR ATTENTION THE CLAIM OF MAJOR GLENN D. KELLEY, USAF, RETIRED, AO 348 517, FOR A PORTION OF THE RETIRED PAY DUE HIM AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS, THE ENTIRE AMOUNT OF WHICH IS PRESENTLY BEING WITHHELD TO LIQUIDATE HIS INDEBTEDNESS IN THE AMOUNT OF $8,778, REPRESENTING SEVERANCE PAY CREDITED TO HIM IN FEBRUARY 1951.

IT APPEARS THAT AS THE RESULT OF HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE PERMANENT GRADE OF MAJOR WHICH MADE HIS REMOVAL FROM THE ACTIVE LIST MANDATORY, MAJOR KELLEY WAS AFFORDED ON JANUARY 5, 1951, THE OPPORTUNITY OF ACCEPTING EITHER A RESERVE OR AN AIR FORCE OF THE UNITED STATES APPOINTMENT IN THE GRADE OF CAPTAIN AND RETENTION ON ACTIVE DUTY. HE ELECTED TO ACCEPT THE AIR FORCE OF THE UNITED STATES APPOINTMENT AND ON FEBRUARY 7, 1951, HE WAS HONORABLY DISCHARGED AS A REGULAR AIR FORCE OFFICER WITH SEVERANCE PAY, APPOINTED CAPTAIN OF THE AIR FORCE (TEMPORARY) AND ORDERED TO ACTIVE DUTY FEBRUARY 8, 1951. HE CONTINUED ON ACTIVE DUTY (BEING PROMOTED TO THE TEMPORARY GRADE OF MAJOR ON APRIL 1, 1953), UNTIL MARCH 23, 1961, WHEN HE WAS NOTIFIED THAT, DUE TO HIS FAILURES OF SELECTION FOR TEMPORARY PROMOTION TO THE GRADE OF LIEUTENANT COLONEL (MARCH 1958, APRIL 11, 1960, AND JANUARY 9, 1961), HE WOULD BE SEPARATED OR VOLUNTARILY RETIRED OCTOBER 31, 1961. HE APPLIED FOR APPOINTMENT AS A RESERVE OFFICER OF THE AIR FORCE AND PLACEMENT ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST, BUT ON OCTOBER 10, 1961, HE WAS INFORMED THAT IT WAS NOT THE INTENT OF CONGRESS TO PERMIT OFFICERS TO RECEIVE SEVERANCE PAY AND RETIRED PAY FOR THE SAME PERIOD OF SERVICE AND HIS APPLICATION FOR RETIREMENT WAS RETURNED WITHOUT ACTION. HE THEN APPLIED TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS, REQUESTING THAT HIS RECORDS BE CORRECTED IN ORDER THAT HE MIGHT BE CONSIDERED FOR RETIREMENT ELIGIBILITY AS A RESERVE OFFICER WITH OVER 20 YEARS OF SERVICE. HIS SEPARATION WAS HELD IN ABEYANCE PENDING COMPLETION OF THIS ACTION. APRIL 12, 1962, THE ASSISTANT SECRETARY OF THE AIR FORCE APPROVED THE RECOMMENDATION OF THE BOARD AND UNDER THE AUTHORITY OF 10 U.S.C. 1552, DECLARED VOID THE ORDERS RELATING TO MAJOR KELLEY'S DISCHARGE, EFFECTIVE FEBRUARY 7, 1951, AND HIS APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES WITH IMMEDIATE ACTIVE DUTY, EFFECTIVE FEBRUARY 8, 1951, AND DIRECTED THAT THE PERTINENT RECORDS OF THE DEPARTMENT OF THE AIR FORCE BE CORRECTED TO SHOW THAT HE TENDERED HIS RESIGNATION IN LIEU OF DISCHARGE WITH SEVERANCE PAY, FOR THE PURPOSE OF ACCEPTING APPOINTMENT AS AN OFFICER OF THE USAF RESERVE AND IMMEDIATE ACTIVE DUTY IN THAT STATUS; THAT THE RESIGNATION WAS ACCEPTED BY THE PRESIDENT; THAT HE WAS HONORABLY DISCHARGED FEBRUARY 7, 1951; THAT HE WAS TENDERED AN APPOINTMENT AS AN OFFICER IN THE USAF RESERVE IN THE GRADE OF CAPTAIN; THAT HE ACCEPTED THE APPOINTMENT ON FEBRUARY 8, 1951; THAT HE WAS ORDERED TO EXTENDED ACTIVE DUTY AS A CAPTAIN, USAF RESERVE, FEBRUARY 8, 1951, AND THAT HE WAS PROMOTED TO THE RESERVE GRADE OF MAJOR, EFFECTIVE APRIL 1, 1953. THE RECORDS DISCLOSE THAT MAJOR KELLEY WAS PLACED ON THE AIR FORCE OF THE UNITED STATES RETIRED LIST EFFECTIVE AUGUST 1, 1962.

MAJOR KELLEY SAYS THAT PURSUANT TO A RULING MADE IN APRIL 1962 THAT HE WOULD HAVE TO REPAY THE ENTIRE AMOUNT OF $8,778 RECEIVED AS SEVERANCE PAY, INCLUDING $1700 DEDUCTED FOR TAX, HE HAS RECEIVED NO RETIRED PAY AS THE RESULT OF THE CORRECTION OF HIS RECORD AND IN VIEW OF HIS PRESENT FINANCIAL POSITION, HE FEELS HE SHOULD BE ALLOWED AT LEAST 50 PERCENT OF HIS RETIRED PAY PER MONTH.

UPON CORRECTION OF HIS MILITARY RECORD, A MEMBER'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY ALLOWANCES AND OTHER BENEFITS PURSUANT TO APPLICABLE PROVISIONS OF LAW AS APPLIED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORDS. THE EFFECT OF THE CORRECTION MADE IN THE CASE OF MAJOR KELLEY WAS TO PLACE HIM IN THE SAME POSITION INSOFAR AS HIS RIGHT TO PAY AND ALLOWANCES IS CONCERNED THAT HE WOULD HAVE OCCUPIED HAD HE NOT BEEN DISCHARGED AND PAID SEVERANCE PAY. IN OTHER WORDS, THE CORRECTION REMOVED THE LEGAL BASIS FOR THE SEVERANCE PAY AND SUCH PAYMENT BECAME AN ERRONEOUS PAYMENT SUBJECT TO COLLECTION UNDER THE ACT OF JULY 15, 1954, CH. 509, 68 STAT. 482, 5 U.S.C. 46D, WHICH LIMITS THE AMOUNT TO BE DEDUCTED TO NOT OVER TWO-THIRDS OF THE PAY FROM WHICH THE DEDUCTIONS ARE MADE.

IT IS BELIEVED THAT THE ADMINISTRATIVE ACTION IN WITHHOLDING MAJOR KELLEY'S RETIRED PAY IS BASED ON OUR DECISION OF MARCH 19, 1962, 41 COMP. GEN. 597. HOWEVER, THE EFFECT OF THE CORRECTION ACTION IN THAT AND OTHER SIMILAR CASES WAS TO AUTHORIZE PAYMENT OF RETIRED PAY RETROACTIVELY TO THE TIME THE MEMBER WAS PAID SEVERANCE PAY. IN SUCH CIRCUMSTANCES, IT APPEARED PROPER TO REGARD THE SEVERANCE PAY AS BEING IN THE NATURE OF AN ADVANCE PAYMENT OF RETIRED PAY RATHER THAN AN ERRONEOUS PAYMENT.

IT IS OUR VIEW THAT MAJOR KELLEY'S INDEBTEDNESS ARISING AS A RESULT OF THE CORRECTION OF HIS RECORD IS AN "ERRONEOUS PAYMENT" SUCH AS IS GOVERNED BY THE PROVISIONS OF 5 U.S.C. 46D AND THAT THE DEPARTMENT OF THE AIR FORCE SHOULD APPLY SUCH PROVISIONS OF LAW IN EFFECTING ITS COLLECTION.