B-165983, MAR. 11, 1969

B-165983, MAR. 11, 1969

TO MAJOR LEWIS J. DOLLMAN, JR., USMC, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17, 1969, REQUESTING THAT YOU BE RELIEVED OF THE OBLIGATION TO REPAY $4,080.29 TO THE GOVERNMENT (UNDER 5 U.S.C. 5584), SAID TO REPRESENT AN OVERPAYMENT OF RETIRED PAY RESULTING FROM YOUR IMPROPER ADVANCEMENT ON THE RETIRED LIST TO THE RANK OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 6151 (A).

THE PAPERS ENCLOSED WITH YOUR LETTER SHOW THAT ON DECEMBER 31, 1961, YOU WERE RELEASED FROM ACTIVE DUTY IN THE MARINE CORPS AND TRANSFERRED TO THE FLEET MARINE CORPS RESERVE IN THE GRADE OF MASTER SERGEANT (E 7). EFFECTIVE FEBRUARY 1, 1962, YOU WERE PLACED ON THE RETIRED LIST OF ENLISTED MEN OF THE MARINE CORPS UNDER THE PROVISIONS OF 10 U.S.C. 6331. THE SECRETARY OF THE NAVY HAVING DETERMINED THAT THE HIGHEST OFFICER GRADE IN WHICH YOU HAD SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT WAS THAT OF MAJOR, YOU WERE ADVANCED ON THE RETIRED LIST TO THAT GRADE AS AUTHORIZED BY 10 U.S.C. 6151 (A), EFFECTIVE THE SAME DATE. IN 1964, PURSUANT TO A FURTHER DETERMINATION BY THE SECRETARY OF THE NAVY UNDER 10 U.S.C. 6151 (A), YOU WERE AGAIN ADVANCED ON THE RETIRED LIST TO YOUR FORMER PERMANENT GRADE OF LIEUTENANT COLONEL. ALL OF THE CONDITIONS SET OUT IN SEC. 201.5 ARE PRESENT * * *. " SUCH ADVANCEMENT WAS MADE EFFECTIVE AS OF THE DATE OF YOUR RETIREMENT.

BY LETTER FROM THE COMMANDANT OF THE MARINE CORPS DATED DECEMBER 13, 1966, YOU WERE NOTIFIED THAT YOUR ADVANCEMENT TO THE RANK OF LIEUTENANT COLONEL WAS IMPROPER AND THAT YOU WERE ENTITLED TO BE ADVANCED ON THE RETIRED LIST ONLY TO THE HIGHEST TEMPORARY GRADE SATISFACTORILY HELD BY RETIRED LIST ONLY TO THE HIGHEST TEMPORARY GRADE SATISFACTORILY HELD BY YOU AS DETERMINED BY THE SECRETARY OF THE NAVY.

BY WAY OF EXPLANATION, YOU WERE ADVISED THAT YOUR 1964 ADVANCEMENT APPARENTLY WAS EFFECTED BY VIRTUE OF THE HOLDING IN THE CASE OF GRAYSON V UNITED STATES, 137 CT. CL. 779 (1957), WHICH WAS VIEWED AS CONSTITUTING AUTHORITY TO ADVANCE RETIRED MEMBERS TO THE HIGHEST GRADE SATISFACTORILY HELD, WHETHER OF A TEMPORARY OR PERMANENT CHARACTER. HOWEVER, IN VIEW OF A DECISION BY THIS OFFICE DATED JULY 8, 1966, B 149487 (46 COMP. GEN. 17), WHEREIN IT WAS DETERMINED THAT RETIRED PAY ENTITLEMENT UNDER 10 U.S.C. 6151 MAY BE BASED ONLY ON THE HIGHEST GRADE SATISFACTORILY HELD UNDER A TEMPORARY APPOINTMENT, YOUR RETIRED PAY WAS RECOMPUTED ON THE GRADE OF MAJOR, RESULTING IN AN INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $4,080.29 FOR THE PERIOD FEBRUARY 1, 1962, THROUGH NOVEMBER 30, 1966.

SECTION 5584 OF TITLE 5, U.S. CODE, TO WHICH YOU REFER, AUTHORIZES THE WAIVER OF A CLAIM OF THE UNITED STATES AGAINST A PERSON ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY TO "AN EMPLOYEE OF AN EXECUTIVE AGENCY.' REGULATIONS ADOPTED PURSUANT TO SUBSECTION 5584 (A) (2) (C) AND FOUND ON PAGE 20001 OF THE FEDERAL REGISTER, VOL. 33, NO. 253, DECEMBER 31, 1968, PROVIDE IN SECTION 201.3 (A) THAT SUCH REGULATIONS DO NOT APPLY TO MEMBERS OF THE UNIFORMED SERVICES AS DEFINED IN 5 U.S.C. 2101 (3). IT APPEARS THAT WHILE YOU ARE CURRENTLY EMPLOYED BY THE GOVERNMENT IN A CIVIL SERVICE CAPACITY, THE OVERPAYMENT HERE INVOLVED DID NOT ARISE FROM SUCH SERVICE, BUT RESULTED FROM PAYMENTS RECEIVED IN YOUR STATUS AS A RETIRED MEMBER OF THE UNIFORMED SERVICES.

ACCORDINGLY, THERE EXISTS NO AUTHORITY UNDER 5 U.S.C. 5584 TO GRANT A WAIVER IN YOUR CASE. HOWEVER, YOUR ATTENTION IS INVITED TO THE CASE OF JONES V UNITED STATES, CT. CL. NO. 146-68 NOW PENDING BEFORE THE UNITED STATES COURT OF CLAIMS. THE QUESTION THERE BEING CONSIDERED INVOLVES THE RIGHT OF A RETIRED MEMBER TO BE ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 6151 TO THE HIGHEST PERMANENT GRADE FORMERLY HELD BY HIM.