B-156622, JUN. 1, 1965, 44 COMP. GEN. 764

B-156622, JUN. 1, 1965, 44 COMP. GEN. 764

PAY - SERVICE CREDITS - CONSTRUCTIVE - ACTIVE DUTY REQUIREMENT ARMY AIR RESERVE COMMISSIONED NURSES WHO ON THE BASIS OF LETTERS OF APPOINTMENT ERRONEOUSLY SHOWING CREDIT FOR "YEARS OF SERVICE IN AN ACTIVE STATUS" RECEIVED THE BASIC PAY OF A FIRST LIEUTENANT (0-2) WITH OVER 4 YEARS OF SERVICE ARE NOT ENTITLED TO RETAIN THE DIFFERENCE BETWEEN THE BASIC PAY RECEIVED AND THAT OF A FIRST LIEUTENANT (0-2) WITH NO YEARS OF SERVICE, NOTWITHSTANDING THE OVERPAYMENTS WERE ACCEPTED IN GOOD FAITH, 10 U.S.C. 3353 AUTHORIZING CREDIT UPON APPOINTMENT WITH SERVICE PERFORMED IN AN ACTIVE STATUS THAT REFLECTS COMBINED YEARS OF EXPERIENCE AND EDUCATION, AND SUCH OTHER QUALIFICATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE BY REGULATION, HAVING NO APPLICATION TO CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES, 37 U.S.C. 205 PRESCRIBING THAT ONLY ACTIVE FEDERAL SERVICE MAY BE COUNTED FOR THE PURPOSE OF COMPUTING THE BASIC PAY OF A MEMBER OF THE UNIFORMED SERVICES, AND THE OFFICERS NOT ENTITLED TO CONSTRUCTIVE CREDIT FOR EXPERIENCE AND EDUCATION ARE INDEBTED FOR THE OVERPAYMENTS RECEIVED.

TO LIEUTENANT COLONEL M. D. COATES, DEPARTMENT OF THE ARMY, JUNE 1, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 30, 1964, SUPPLEMENTED BY YOUR 5TH INDORSEMENT OF JANUARY 19, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF TWO VOUCHERS STATED IN FAVOR OF FIRST LIEUTENANT MARY E. GAYNOR, N2 314 073, ANC USAR, AND FIRST LIEUTENANT ANNA I. MAHAN, N2 314 097, ANC-USAR, RESPECTIVELY, REPRESENTING THE DIFFERENCE IN BASIC PAY AS FIRST LIEUTENANT (0-2) WITH NO YEARS OF SERVICE AND FIRST LIEUTENANT (0-2) WITH OVER 4 YEARS OF SERVICE FOR THE PERIOD OCTOBER 2, 1963, THROUGH OCTOBER 31, 1964. YOUR REQUEST WAS FORWARDED HERE BY 7TH INDORSEMENT DATED APRIL 21, 1965, UNDER D.O. NUMBER A-845 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

LETTERS OF APPOINTMENT DATED AUGUST 15, 1963, AND AUGUST 22, 1963, SHOWED A CREDIT FOR "YEARS OF SERVICE IN AN ACTIVE STATUS" OF 4 YEARS, 7 MONTHS AND 7 DAYS IN THE CASE OF LIEUTENANT GAYNOR AND 3 YEARS, 11 MONTHS AND 5 DAYS IN THE CASE OF LIEUTENANT MAHAN. ON THE BASIS OF SUCH APPOINTMENT LETTERS, THE OFFICERS' BASE PAY FROM OCTOBER 2, 1963, WAS COMPUTED AS THAT OF AN OFFICER WITH OVER 4 YEARS OF SERVICE. BY 1ST INDORSEMENT DATED NOVEMBER 10, 1964, THE ADJUTANT GENERAL ADVISED THAT LIEUTENANT GAYNOR IS CREDITED WITH SERVICE FOR BASIC PAY FROM AUGUST 26, 1963, AND LIEUTENANT MAHAN IS CREDITED WITH SERVICE FOR BASIC PAY FROM SEPTEMBER 13, 1963--- THE DATES THEY ACCEPTED INITIAL APPOINTMENT IN THE UNITED STATES ARMY RESERVE. EFFECTIVE OCTOBER 1, 1964, THE PAY OF THE OFFICERS WAS ADJUSTED AND DEBT LIQUIDATION SCHEDULES WERE ESTABLISHED FOR COLLECTION OF THE AMOUNTS OVERPAID FROM OCTOBER 2, 1963, THROUGH SEPTEMBER 30, 1964. IDENTICAL LETTERS DATED NOVEMBER 24, 1964, THE OFFICERS MADE CLAIM FOR THE DIFFERENCE IN PAY BEING CHARGED AGAINST THEM ON THE BASIS THAT THE "YEARS OF SERVICE IN AN ACTIVE STATUS" MENTIONED ABOVE WAS VALID FOR LONGEVITY AS WELL AS OTHER PURPOSES AND THAT THE MONEYS RECEIVED WERE ACCEPTED IN GOOD FAITH AND NO SUBSEQUENT RULING SHOULD DEPRIVE THEM OF RIGHTS TO WHICH THEY WERE LEGALLY ENTITLED UNDER LAWS AND REGULATIONS IN EFFECT AT THE TIME OF THE APPOINTMENTS.

YOU STATED IN YOUR SUBMISSION THAT SECTIONS 105 (B) AND 110 OF THE ARMY- NAVY NURSES ACT OF 1947, APPROVED APRIL 16, 1947, CH. 38, 61 STAT. 44, 46, APPEAR TO AUTHORIZE CONSTRUCTIVE SERVICE AS ACTIVE FEDERAL SERVICE IN ITS FULLEST MEANING AND SINCE YOU HAVE BEEN UNABLE TO DETERMINE THE QUESTION CONCLUSIVELY YOU REQUEST AN ADVANCE DECISION IN THE MATTER.

THE ARMY-NAVY NURSES ACT OF 1947, WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 641, 676, 680. THE FOLLOWING PERTINENT PROVISIONS OF LAW AND REGULATIONS WERE IN EFFECT AT THE TIME THE APPOINTMENTS HERE INVOLVED WERE MADE.

SECTION 3353 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

"/A) FOR THE PURPOSES OF CHAPTERS 337 (APPOINTMENTS AS RESERVE OFFICERS) AND 363 (SEPARATION OR TRANSFER TO RETIRED RESERVE) OF THIS TITLE, A PERSON WHO IS APPOINTED AS A RESERVE COMMISSIONED OFFICER OF THE ARMY AND IS NOT ALREADY A COMMISSIONED OFFICER OF AN ARMED FORCE MAY BE CREDITED, UPON HIS APPOINTMENT, WITH SERVICE IN AN ACTIVE STATUS THAT REFLECTS HIS COMBINED YEARS OF EXPERIENCE AND EDUCATION AND SUCH OTHER QUALIFICATIONS AS THE SECRETARY OF THE ARMY MAY BY REGULATION PRESCRIBE.'

SECTION 3359 OF THAT TITLE PROVIDES IN PART THAT:

"BASED UPON THE SERVICE CREDITED UNDER SECTION 3353 OF THIS TITLE, THE COMMISSIONED GRADE IN WHICH A PERSON CREDITED WITH SERVICE UNDER THAT SECTION IS ORIGINALLY APPOINTED AS A RESERVE OFFICER OF THE ARMY IS:

(1) FOR PERSONS WITH LESS THAN THREE YEARS OF SERVICE--- SECOND LIEUTENANT.

(2) FOR PERSONS WITH AT LEAST THREE, BUT LESS THAN SEVEN, YEARS OF SERVICE--- FIRST UTENANT.'

PARAGRAPH 9 OF ARMY REGULATIONS 601-139, ISSUED PURSUANT TO SUCH STATUTORY AUTHORITY, PROVIDES THAT:

"B. QUALIFIED PERSONS WITH OR WITHOUT MILITARY SERVICE OR MEMBERS OF THE ARMY RESERVE SEEKING APPOINTMENT IN A DIFFERENT BRANCH IN A GRADE OTHER THAN PRESENTLY HELD MAY BE APPOINTED IN GRADES AS FOLLOWS BASED ON THE "YEARS OF SERVICE IN AN ACTIVE STATUS" CREDITED UNDER C BELOW:

CHART

GRADE YEARS OF SERVICE

SECOND LIEUTENANT ---------------- LESS THAN 3

FIRST LIEUTENANT ---------------- 3 OR MORE BUT LESS THAN 7 * * *

"C. (3) YEARS, MONTHS, AND DAYS OF QUALIFYING EDUCATION AND EXPERIENCE AS DEFINED IN PARAGRAPH 10 WILL, EXCEPT AS INDICATED IN (1) AND (2) ABOVE, BE CREDITED AS AN EQUALING AMOUNT OF YEARS' SERVICE. * * *"

THE CUMULATIVE YEARS OF SERVICE TO BE COUNTED FOR THE PURPOSE OF COMPUTING THE BASIC PAY OF A MEMBER OF THE UNIFORMED SERVICES ARE SET FORTH IN 37 U.S.C. 233 (NOW 205) AND, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, ONLY ACTIVE FEDERAL SERVICE MAY BE COUNTED. THE SECRETARY OF THE ARMY IS WITHOUT AUTHORITY TO ALLOW SERVICE CREDIT FOR PAY PURPOSES EXCEPT AS THERE PROVIDED. THE PHRASE "YEARS OF SERVICE IN AN ACTIVE STATUS" USED IN THE REGULATIONS REFERS TO THE YEARS OF EXPERIENCE AND EDUCATION WHICH MAY BE CREDITED FOR THE PURPOSES OF CHAPTERS 337 AND 363 OF 10 U.S. CODE, NEITHER OF WHICH CHAPTERS HAVE ANYTHING TO DO WITH CUMULATIVE YEARS OF SERVICE FOR BASIC PAY PURPOSES. ACCORDINGLY, THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF THE AMOUNT CLAIMED AND THE AMOUNTS OVERPAID ARE PROPERLY FOR COLLECTION FROM THE OFFICERS INVOLVED.

WHILE THE OFFICERS ACTED IN GOOD FAITH IN ACCEPTING THE PAY RECEIVED BY THEM, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT OBLIGATED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. PRESUMABLY MANY, IF NOT MOST, OVERPAYMENTS BASED ON ERRONEOUS OR UNAUTHORIZED ACTS OF AGENTS OF THE GOVERNMENT ARE ACCEPTED IN GOOD FAITH. HOWEVER, THE COURTS HAVE ESTABLISHED THE RULE THAT MONEY PAID UPON AN ERRONEOUS DETERMINATION BY OFFICERS OR AGENTS OF THE GOVERNMENT WHETHER WITH OR WITHOUT JURISDICTION OF THE PARTICULAR SUBJECT MATTER MAY BE RECOVERED BACK FROM THE RECIPIENT. WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190 (1896) AND UNITED STATES V. BENTLEY, 107 F.2D 382, 384 (1939).

PAYMENT NOT BEING AUTHORIZED ON THE VOUCHERS RECEIVED WITH YOUR REQUEST, THEY WILL BE RETAINED HERE.