B-154961, NOVEMBER 3, 1964, 44 COMP. GEN. 258

B-154961: Nov 3, 1964

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IS RECALLED TO ACTIVE DUTY ON FEBRUARY 10. TO COMPLETE 20 YEARS' SERVICE AND IS AGAIN RETIRED ON MAY 1. THE DE FACTO RULE THAT A PERSON DISCHARGING THE DUTIES OF AN OFFICE UNDER COLOR OF AUTHORITY IS ENTITLED TO RETAIN PAYMENTS RECEIVED IN GOOD FAITH ALSO APPLYING TO A RETIRED STATUS. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 25. REQUESTING A DECISION AS TO WHETHER THE MEMBER MAY BE CONSIDERED TO HAVE BEEN IN A DE FACTO RETIRED STATUS DURING THE PERIOD FROM JULY 1. YOUR REQUEST FOR DECISION WAS FORWARDED UNDER DO-A- 791 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. SERGEANT COFFEY WAS RELIEVED FROM HIS ASSIGNMENT AND DUTY AT FORT DIX. HE WAS CREDITED WITH 20 YEARS.

B-154961, NOVEMBER 3, 1964, 44 COMP. GEN. 258

PAY - RETIRED - EFFECTIVE DATE - ERRONEOUS WHERE AN ARMY SERGEANT ERRONEOUSLY PLACED ON THE RETIRED LIST JULY 1, 1960, UNDER 10 U.S.C. 3914, THE 20 YEARS' QUALIFYING SERVICE FOR RETIREMENT AND BASIC PAY PURPOSES INCLUDING 93 DAY'S LOST TIME FOR ABSENCES NOT IN LINE OF DUTY, IS RECALLED TO ACTIVE DUTY ON FEBRUARY 10, 1964, TO COMPLETE 20 YEARS' SERVICE AND IS AGAIN RETIRED ON MAY 1, 1964, THE MEMBER MAY RETAIN THE PAYMENTS RECEIVED FOR THE PERIOD JULY 1, 1960, THROUGH JANUARY 31, 1964, THE DE FACTO RULE THAT A PERSON DISCHARGING THE DUTIES OF AN OFFICE UNDER COLOR OF AUTHORITY IS ENTITLED TO RETAIN PAYMENTS RECEIVED IN GOOD FAITH ALSO APPLYING TO A RETIRED STATUS; HOWEVER, WHILE THE DE FACTO DOCTRINE PERMITS THE MEMBER TO RETAIN THE RETIRED PAY RECEIVED BY HIM IN GOOD FAITH, IT PROVIDES NO BASIS FOR THE PAYMENT TO HIM OF RETIRED PAY FOR THE PERIOD FEBRUARY 1 THROUGH 9, 1964.

TO COLONEL J. L. CLANEY, DEPARTMENT OF THE ARMY, NOVEMBER 3, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1964, FORWARDED HERE BY FIRST INDORSEMENT DATED AUGUST 12, 1964, BY THE OFFICE OF THE CHIEF OF FINANCE, TRANSMITTING A VOUCHER TOTALING $37.80 IN THE CASE OF SERGEANT EVERETTE D. COFFEY, RETIRED, RA 6 923 323, REPRESENTING RETIRED PAY WITHHELD FOR THE PERIOD FEBRUARY 1 THROUGH 9, 1964, AND REQUESTING A DECISION AS TO WHETHER THE MEMBER MAY BE CONSIDERED TO HAVE BEEN IN A DE FACTO RETIRED STATUS DURING THE PERIOD FROM JULY 1, 1960, TO FEBRUARY 9, 1964, DATE PRIOR TO HIS RECALL TO ACTIVE DUTY OR WHETHER THE RETIRED PAY RECEIVED BY HIM FOR THE PERIOD JULY 1, 1960, THROUGH JANUARY 31, 1964, SHOULD BE COLLECTED. YOUR REQUEST FOR DECISION WAS FORWARDED UNDER DO-A- 791 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 115 OF DA SPECIAL ORDERS NUMBER 128, DATED JUNE 20, 1960, SERGEANT COFFEY WAS RELIEVED FROM HIS ASSIGNMENT AND DUTY AT FORT DIX, NEW JERSEY, TRANSFERRED TO THE UNITED STATES ARMY RESERVE (RETIRED RESERVE), AND PLACED ON THE RETIRED LIST JULY 1, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 3914. HE WAS CREDITED WITH 20 YEARS, 0 MONTHS AND 16 DAYS' QUALIFYING SERVICE FOR RETIREMENT AND FOR BASIC PAY PURPOSES. VERIFICATION OF HIS SERVICE REVEALED THAT HE WAS ERRONEOUSLY CREDITED WITH 93 DAYS OF A TOTAL OF 198 DAYS' TIME LOST DUE TO ABSENCE WITHOUT LEAVE, CONFINEMENT, AND SICK NOT IN LINE OF DUTY. THUS HE HAD ACTUALLY COMPLETED 19 YEARS, 9 MONTHS AND 13 DAYS' SERVICE CREDITABLE FOR RETIREMENT ON JUNE 30, 1960, AND WAS NOT ELIGIBLE FOR RETIREMENT ON JULY 1, 1960.

BY PARAGRAPH 283, DA SPECIAL ORDERS NUMBER 32, DATED FEBRUARY 4, 1964, SERGEANT COFFEY'S RETIREMENT EFFECTIVE JULY 1, 1960, WAS REVOKED. HE WAS RECALLED TO ACTIVE DUTY EFFECTIVE FEBRUARY 10, 1964, AND SERVED THROUGH APRIL 30, 1964, WHEN BY PARAGRAPH 275, DA SPECIAL ORDERS NUMBER 68, DATED MARCH 13, 1964, HE WAS RELIEVED FROM ACTIVE DUTY AND PLACED ON THE RETIRED LIST EFFECTIVE MAY 1, 1964, UNDER THE PROVISIONS OF 10 U.S.C. 3914. HE IS NOW CREDITED WITH 20 YEARS, 0 MONTHS AND 5 DAYS' ACTIVE SERVICE FOR RETIREMENT AND FOR BASIC PAY PURPOSES AND IS RECEIVING RETIRED PAY COMPUTED ON THE BASIC PAY RATES EFFECTIVE OCTOBER 1, 1963, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 210, 37 U.S.C. 203.

SERGEANT COFFEY RECEIVED RETIRED PAY FOR THE PERIOD JULY 1, 1960, THROUGH JANUARY 31, 1964, IN THE TOTAL AMOUNT OF $5,216.40, BASED ON THE BASIC PAY RATES PROVIDED IN THE ACT OF MAY 20, 1958, PUBLIC LAW 85 422, 72 STAT. 122, 37 U.S.C. 232, INCREASED BY 5 PERCENT FROM OCTOBER 1, 1963, AS PROVIDED BY THE UNIFORMED SERVICES PAY ACT OF 1963. THIS TOTAL INCLUDES AN OVERPAYMENT OF $32.40 DUE TO HIS RETIRED PAY HAVING BEEN PAID AT THE RATE OF $120.90 RATHER THAN THE CORRECT RATE OF $120 PER MONTH FOR THE PERIOD JULY 1, 1960, THROUGH JUNE 30, 1963.

WHILE IT APPEARS THAT SERGEANT COFFEY RECEIVED RETIRED PAY IN GOOD FAITH, BELIEVING THAT HIS PURPORTED RETIREMENT ON JULY 1, 1960, WAS VALID, HE HAD NOT COMPLETED THE SERVICE REQUIREMENTS FOR RETIREMENT UNDER 10 U.S.C. 3914 ON THAT DATE, AND YOU HAVE EXPRESSED DOUBT AS TO WHETHER HE MAY RETAIN THE AMOUNT THAT HE RECEIVED AS RETIRED PAY BASED ON THE DE FACTO RULE.

SECTION 3914, TITLE 10, U.S. CODE, PROVIDES IN PART THAT:

UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY, A REGULAR ENLISTED MEMBER OF THE ARMY WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE COMPUTED UNDER SECTION 3925 OF THIS TITLE MAY, UPON HIS REQUEST, BE RETIRED. * * * SECTION 3925, TITLE 10, U.S. CODE, PROVIDES THAT FOR THE PURPOSE OF DETERMINING WHETHER A REGULAR ENLISTED MEMBER OF THE ARMY MAY BE RETIRED UNDER SECTION 3914 AND OF COMPUTING HIS RETIRED PAY, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING ALL ACTIVE SERVICE IN THE ARMED FORCES AND THAT TIME REQUIRED TO BE MADE UP UNDER SECTION 972 OF TITLE 10 MAY NOT BE COUNTED IN DETERMINING YEARS OF CREDITABLE SERVICE FOR RETIREMENT.

SECTION 972, TITLE 10, U.S. CODE, PROVIDES:

AN ENLISTED MEMBER OF AN ARMED FORCE WHO---

(1) DESERTS;

(2) IS ABSENT FROM HIS ORGANIZATION, STATION, OR DUTY FOR MORE THAN ONE DAY WITHOUT PROPER AUTHORITY, AS DETERMINED BY COMPETENT AUTHORITY;

(3) IS CONFINED FOR MORE THAN ONE DAY WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, AND WHOSE CONVICTION HAS BECOME FINAL;

(4) IS CONFINED FOR MORE THAN ONE DAY UNDER A SENTENCE THAT HAS BECOME FINAL; OR

(5) IS UNABLE FOR MORE THAN ONE DAY, AS DETERMINED BY COMPETENT AUTHORITY, TO PERFORM HIS DUTIES BECAUSE OF INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS MISCONDUCT;

IS LIABLE, AFTER HIS RETURN TO FULL DUTY, TO SERVE FOR A PERIOD THAT, WHEN ADDED TO THE PERIOD THAT HE SERVED BEFORE HIS ABSENCE FROM DUTY, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED OR INDUCTED.

THE REGULATIONS PROVIDED FOR IN SECTION 3914 EFFECTIVE ON JULY 1, 1960, ARE CONTAINED IN AR 635-230, DATED SEPTEMBER 12, 1955. PARAGRAPH 5 OF THE REGULATIONS PROVIDES IN PART THAT:

IN DETERMINING YEARS OF ACTIVE SERVICE FOR THE PURPOSE OF COMPUTING RETIRED PAY, BUT NOT FOR THE PURPOSE OF DETERMINING ELIGIBILITY FOR RETIREMENT UNDER THESE REGULATIONS, ANY FRACTIONAL PART OF A YEAR AMOUNTING TO 6 MONTHS OR MORE WILL BE COUNTED AS A COMPLETE YEAR. THE REGULATIONS FURTHER PROVIDE IN PARAGRAPH 26 THAT:

A FULLY EXECUTED ORDER FOR RETIREMENT, IF REGULAR AND VALID, IS FINAL AND MAY NOT BE REOPENED, REVOKED, OR AMENDED IN THE ABSENCE OF FRAUD, MANIFEST ERROR, MATHEMATICAL MISCALCULATION, MISTAKE OF LAW, OR SUBSTANTIAL NEW EVIDENCE.

THE LAST QUOTED PROVISION IS A RESTATEMENT OF RULES LAID DOWN IN DECISIONS OF THIS OFFICE. SEE 31 COMP. GEN. 296, 39 COMP. GEN. 312 AND DECISIONS THERE CITED.

WE HAVE LONG FOLLOWED THE RULE THAT A PERSON DISCHARGING THE DUTIES OF AN OFFICE UNDER A COLOR OF AUTHORITY IS ENTITLED TO RETAIN THE PAY RECEIVED BY HIM IN GOOD FAITH, AS AN OFFICER DE FACTO, AND THAT WHERE IT HAS BEEN REFUNDED TO THE GOVERNMENT HE IS ENTITLED TO RECOVER IT BACK. 5 COMP. GEN. 70; 6 ID. 71; ID. 263; 31 ID. 335; 33 ID. 475; 34 ID. 132; ID. 263; ID. 266, AND 39 ID. 312.

THE DE FACTO DOCTRINE ALSO APPLIES TO A RETIRED STATUS. IN BADEAU V. UNITED STATES, 130 U.S. 439 (1889), AN ARMY OFFICER ACCEPTED APPOINTMENT AS ASSISTANT SECRETARY OF LEGATION AT LONDON ON MAY 19, 1869. THEREAFTER BY ORDER OF MAY 25, 1869, THE PRESIDENT DIRECTED THAT HE BE RETIRED FROM THE ARMY FOR DISABILITY. AN 1868 STATUTE PROVIDED IN EFFECT THAT ACCEPTING OR HOLDING AN APPOINTMENT IN THE DIPLOMATIC OR CONSULAR SERVICE WOULD AUTOMATICALLY VACATE THE MILITARY OFFICE OF ANY ARMY OR NAVY OFFICER. AT CERTAIN TIMES FROM 1870 TO 1882 WHEN NOT EMPLOYED IN THE DIPLOMATIC OR CONSULAR SERVICE BADEAU RECEIVED RETIRED PAY AS A RETIRED ARMY OFFICER.

THE GOVERNMENT CONTENDED THAT BADEAU WAS NOT ENTITLED TO RETAIN THE RETIRED PAY HE HAD RECEIVED BECAUSE HE HAD VACATED HIS ARMY OFFICE BY ACCEPTING APPOINTMENT AS ASSISTANT SECRETARY AT THE LEGATION IN LONDON ON MAY 19, 1869, AND THEREFORE WAS NOT ELIGIBLE FOR RETIREMENT. THE SUPREME COURT DID NOT DECIDE WHETHER BADEAU WAS A DE JURE RETIRED ARMY OFFICER DURING THE PERIOD HE HAD RECEIVED ARMY RETIRED PAY BECAUSE IT WAS UNNECESSARY TO DO SO, SINCE IT SAID THAT INASMUCH AS BADEAU, "IF NOT AN OFFICER DE JURE, ACTED AS AN OFFICER DE FACTO, WE ARE NOT INCLINED TO HOLD THAT HE HAS RECEIVED MONEY WHICH, EX AEQUO ET BONO, HE OUGHT TO RETURN.'

SIMILARLY, IN MILLER V. UNITED STATES, 19 CT.CL. 338 (1884), THE COURT OF CLAIMS HELD THAT MILLER, WHO WAS NOT QUALIFIED OR ELIGIBLE FOR RETIREMENT BECAUSE HE WAS NOT AN ARMY OFFICER, HAVING PREVIOUSLY BEEN SEPARATED (DISCHARGED) FROM THE ARMY BY BEING WHOLLY RETIRED, WAS ENTITLED TO RETAIN THE RETIRED PAY HE HAD RECEIVED INCIDENT TO A LATER PURPORTED RETIREMENT FOR DISABILITY BECAUSE HE WAS A DE FACTO RETIRED OFFICER. COMPARE 36 COMP. GEN. 632, AT 634, IN WHICH IT WAS HELD THAT THE DE FACTO DOCTRINE DID NOT RELIEVE AN OFFICER FROM THE REQUIREMENT TO REFUND AN OVERPAYMENT WHICH RESULTED BECAUSE HE WAS ERRONEOUSLY PLACED ON THE TEMPORARY DISABILITY RETIRED LIST RATHER THAN THE PERMANENT RETIRED LIST.

IN 4 COMP. GEN. 773, WE HELD (QUOTING THE SYLLABUS) THAT:

THE TRANSFER OF AN ENLISTED MAN OF THE NAVY TO THE FLEET NAVAL RESERVE CAN ONLY BE MADE WHEN THE SERVICE REQUIRED BY STATUTE TO ENTITLE THE MAN TO SUCH TRANSFER IS AN ACCOMPLISHED FACT, BUT WHERE THE RECORDS OF THE NAVY DEPARTMENT PRIMA FACIE SHOW AT THE TIME OF TRANSFER THE LEGAL QUALIFICATION THEREFOR, THE STATUS THUS CREATED BY SUCH TRANSFER WILL NOT BE QUESTIONED IN THE SETTLEMENT OF HIS ACCOUNTS, IN THE ABSENCE OF FRAUD OR GROSS MISTAKE.

IN THE CASE THERE INVOLVED PAYMENTS MADE PRIOR TO OUR DECISION OF AUGUST 31, 1923, A-4285, WERE ALLOWED. SEE 5 COMP. GEN. 822. SEE ALSO DECISION OF SEPTEMBER 6, 1921, 1 MS COMP. GEN. 753, TO THE EFFECT THAT AN ALIEN ILLEGALLY TRANSFERRED TO THE FLEET NAVAL RESERVE AFTER MORE THAN 20 YEARS' SERVICE WAS ENTITLED TO RETAIN THE RETAINER PAY HE HAD RECEIVED PRIOR TO THE DISCOVERY OF THE ILLEGALITY OF HIS TRANSFER BECAUSE HE OCCUPIED A DE FACTO STATUS IN THE FLEET NAVAL RESERVE DURING THAT PERIOD. COMPARE 18 COMP. GEN. 596, WHERE, IN THE CASE OF AN OFFICER WHO WAS IN A STATUS SIMILAR TO THAT OF A DE FACTO OFFICER, IT WAS HELD THAT THE PRINCIPLES APPLICABLE TO A DE FACTO OFFICER SHOULD BE APPLIED AND THAT THEREFORE "HE IS ENTITLED TO RETAIN THE PAY HE RECEIVED.'

IN THE CIRCUMSTANCES THE PAYMENTS OF RETIRED PAY MADE PRIOR TO SERGEANT COFFEY'S RECALL TO ACTIVE DUTY IN 1964 WILL NOT BE QUESTIONED AND RECOVERY THEREOF NEED NOT BE EFFECTED. WHILE THE DE FACTO DOCTRINE PERMITS THE RETENTION OF THE COMPENSATION OF AN OFFICE RECEIVED IN GOOD FAITH, IT PROVIDES NO BASIS FOR RECOVERY OF COMPENSATION NOT ACTUALLY RECEIVED. ACCORDINGLY, THERE IS NO BASIS FOR PAYMENT OF THE VOUCHER FOR RETIRED PAY FOR THE PERIOD FEBRUARY 1 THROUGH 9, 1964, AND THE VOUCHER WILL BE RETAINED HERE.