B-168667, JANUARY 16, 1970, 49 COMP. GEN. 429

B-168667, JANUARY 16, 1970, 49 COMP. GEN. 429

MILITARY PERSONNEL -- RETIREMENT -- EFFECTIVE DATE -- LATE RECEIPT OF ORDERS THE LATE RECEIPT BY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES OF RETIREMENT ORDERS THAT PLACED HIM ON THE TEMPORARY DISABILITY RETIRED LIST PROVIDED NO BASIS FOR THE REVOCATION AND REISSUANCE OF THE RETIREMENT ORDERS UNDER THE SUBSTANTIAL NEW EVIDENCE RULE, AS THE LATE RECEIPT OF THE ORDERS DID NOT PREVENT THE RETIREMENT OF THE MEMBER FROM BECOMING EFFECTIVE ON THE DAY FOLLOWING RECEIPT OF THE ORDERS. THEREFORE, THE MEMBER CONTINUED ON ACTIVE DUTY UNTIL DELIVERY OF THE ORDERS, AND PURSUANT TO SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, HE IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FROM JULY 17, 1969, THE EFFECTIVE RETIREMENT DATE STATED IN THE INITIAL ORDERS, TO AND INCLUDING JULY 24, 1969, THE DATE THE MEMBER RECEIVED NOTICE OF THE ORDERS, AND TO RETIRED PAY FROM JULY 25, 1969, THE DATE THE MEMBER'S RETIREMENT BECAME EFFECTIVE, TO AND INCLUDING AUGUST 14, 1969, THE DATE HE WAS RELEASED FROM ACTIVE DUTY UNDER THE NEW ORDERS MISTAKENLY ISSUED.

TO N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, JANUARY 16, 1970:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1969, YOUR REFERENCE ALRA-1, REQUESTING A DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN THE AMOUNT OF $470.23, IN FAVOR OF SMSGT. O. B. COOPER, USAF, RETIRED, REPRESENTING DISABILITY RETIRED PAY FOR THE PERIOD JULY 17 THROUGH AUGUST 14, 1969, UNDER THE CIRCUMSTANCES RELATED BELOW. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1062 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

DEPARTMENT OF THE AIR FORCE SPECIAL ORDER NO. AC 18430 DATED JULY 3, 1969, RELIEVED SERGEANT COOPER FROM ACTIVE DUTY EFFECTIVE JULY 16, 1969, AND ANNOUNCED HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JULY 17, 1969. THE PROCESSING CONSOLIDATED BASE PERSONNEL OFFICE, 6580 AB GP, HOLLOMAN AFB, NEW MEXICO, HOWEVER, DID NOT RECEIVE THE RETIREMENT ORDERS FROM THE SERVICING CONSOLIDATED BASE PERSONNEL OFFICE, 1070 MEDICAL SERVICE GROUP, WASHINGTON, D. C., UNTIL JULY 23, 1969, AND SERGEANT COOPER DID NOT RECEIVE NOTICE OF HIS RETIREMENT UNTIL JULY 24, 1969.

APPARENTLY IN THE BELIEF THAT UNDER THE SUBSTANTIAL NEW EVIDENCE RULE MENTIONED IN OUR DECISION OF FEBRUARY 23, 1967, 46 COMP. GEN. 617, A MODIFICATION OF SERGEANT COOPER'S RETIREMENT ORDERS WAS APPROPRIATE, ACTION WAS TAKEN TO HAVE NEW RETIREMENT ORDERS ISSUED. DEPARTMENT OF THE AIR FORCE SPECIAL ORDER NO. AC 21440 DATED AUGUST 4, 1969, REVOKED THE ORDERS OF JULY 3, 1969, AND ANNOUNCED SERGEANT COOPER'S RELEASE FROM ACTIVE DUTY EFFECTIVE AUGUST 14, 1969, AND HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 15, 1969.

IT APPEARS TO HAVE BEEN THE ADMINISTRATIVE PRACTICE TO ALLOW 14 DAYS BETWEEN THE DATE OF THE RETIREMENT ORDER AND THE RETIREMENT DATE FOR ORDERLY RETIREMENT PROCESSING AND TO ASSUME THAT FINAL PROCESSING (INCLUDING DELIVERY OF THE RETIREMENT ORDER TO THE MEMBER) WOULD BE ACCOMPLISHED BY THE CONSOLIDATED BASE PERSONNEL OFFICE IN WASHINGTON, D. C., IN SUFFICIENT TIME TO EFFECT RETIREMENT ON THE DATE PRESCRIBED. THE PRESENT CASE, HOWEVER, THERE WAS A DELAY IN PROCESSING AND THE MEMBER WAS NOT ADVISED OF HIS RETIREMENT DATE UNTIL A WEEK AFTER THE ANNOUNCED EFFECTIVE DATE. IT HAS BEEN SUGGESTED THAT THOSE CIRCUMSTANCES MAY WARRANT THE REVOCATION OR MODIFICATION OF THE RETIREMENT ORDERS OF JULY 3, 1969, UNDER THE SUBSTANTIAL NEW EVIDENCE RULE.

WHILE THE INTERVENING DISCOVERY OF A DISABILITY WARRANTING DISABILITY RETIREMENT AFTER THE ISSUANCE OF ORDERS ANNOUNCING RETIREMENT OF A MEMBER FOR LENGTH OF SERVICE IN SOME CIRCUMSTANCES MAY PROVIDE THE BASIS FOR APPLICATION OF THE SUBSTANTIAL NEW EVIDENCE RULE, IT IS OUR OPINION THAT THE MERE LATE RECEIPT OF A RETIREMENT ORDER PROVIDES NO BASIS FOR APPLICATION OF THAT NEW EVIDENCE RULE. THE LATE RECEIPT OF A RETIREMENT ORDER DOES NOT PREVENT THE RETIREMENT OF A MEMBER BEING EFFECTED WHEN THE ORDER IS RECEIVED.

IN CRIST V UNITED STATES, 124 CT. CL. 825 (1952), THE COURT OF CLAIMS HELD THAT UNDER THE PROVISIONS OF SECTION 514 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 831, 37 U. S. C. 314 (1958 ED.), CRIST, A MEMBER OF THE UNIFORMED SERVICES WHO HAD NOT RECEIVED TIMELY NOTICE OF HIS RETIREMENT, "WAS SERVING ON ACTIVE DUTY SUBJECT TO ASSIGNMENT UNTIL HE WAS DIRECTED OTHERWISE BY THE DELIVERY OF THE (RETIREMENT) ORDERS TO HIM," AND WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, LESS THE AMOUNT OF RETIRED PAY WHICH HE HAD RECEIVED, TO THE DATE OF RECEIPT OF HIS RETIREMENT ORDERS.

IN DECISION OF OCTOBER 21, 1955, 35 COMP. GEN. 225, WE SAID:

PRIOR HOLDINGS OF THIS OFFICE (DISALLOWING ACTIVE-DUTY PAY AFTER EFFECTIVE DATE OF RETIREMENT NOTWITHSTANDING MEMBER'S RECEIPT OF RETIREMENT ORDERS AFTER SUCH EFFECTIVE DATE) BASED ON THE DECISIONS OF THE COURT OF CLAIMS IN TERRY V UNITED STATES, 81 C. CLS. 958 AND HOLLAND V UNITED STATES, 83 C. CLS. 376, RELATE TO PROVISIONS OF LAW WHICH WERE IN EFFECT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND HENCE ARE NOT FOR APPLICATION IN THE PRESENT MATTER.

SINCE SERGEANT COOPER ACTUALLY RECEIVED NOTICE OF HIS RETIREMENT ORDERS ON JULY 24, 1969, FOR WHICH HE WAS QUALIFIED, HIS RETIREMENT BECAME EFFECTIVE ON THE FOLLOWING DAY AND WE KNOW OF NO PROPER BASIS FOR CONCLUDING THAT NEW RETIREMENT ORDERS SHOULD HAVE BEEN ISSUED OR THAT HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES AFTER THAT DATE. IT IS OUR VIEW THAT ON THE PRESENT RECORD SERGEANT COOPER IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JULY 17 TO 24, 1969, INCLUSIVE, AND THAT HE SHOULD RECEIVE ONLY RETIRED PAY FOR THE PERIOD JULY 25 TO AUGUST 14, 1969, INCLUSIVE. CF. 39 COMP. GEN. 312 (1959).

THE VOUCHER FORWARDED WITH YOUR REQUEST FOR DECISION IS RETAINED HERE, AND PAYMENT ON A NEW VOUCHER ON THE BASIS INDICATED ABOVE SHOULD BE EFFECTED.