B-168762 February 16, 1970

B-168762 February 16, 1970

The Honorable Emanuel Celler Chairman, Committee on the Judiciary House of Representatives

Dear Mr. Chairman:

Reference is made to your letter of January 6, 1970, requesting our views on H. R. 15395, a bill for the relief of Louis Korchek.

The bill would relive Mr. Korchek of his liability to the United States in the amount of $5,054.02, representing an overpayment of retired pay made to him by the Department of the Army for the period December 6, 1967, through October 31, 1969, as a result of administrative error and without fault on his part. Also, the bill would relieve the certifying of disbursing officer of liability to the extent of the overpayment and would authorize and direct the Secretary of the Treasury to pay to Mr. Korchek an amount of such overpayment.

It appears from the record before us that Mr. Korchek was retired form the Regular Army in the grade of chief warrant officer W-4, on March 31, 1967, and placed on the retired list effective April 1, 1967, under the provisions of 10 U. S. C. 1201 and 1372 by reason of physical disability with a 30 percent disability. At that time he had 30 years, 2 months and 9 days' service for retirement purposes, and 30 years, 5 months and 8 days' service for basic pay purposes. The record further shows that he was not retired for injury or disability received in the line of duty as direct result of armed conflict, and that he was also eligible to retire as permanent regular warrant officer with 30 years' service under 10 U. S. C. 1305.

The record shows that commencing December 6, 1967, Mr. Korchek was employed by the Federal Government as a civilian employee with the Veterans Administration Regional Office, San Francisco, California. The record further shows that on January 25, 1968, the Retired Pay Division, Army Finance Center, notified both the Veterans Administration Regional Office, San Francisco, and Mr. Korchek that he was not subject to the Dual Compensation Act of 1964 due to being a retired Reserve or non-regular officer. However, in September 1969 pertaining to the member's employment status and the waiver of a portion of his retired pay for disability compensation. Upon reexamination of his account to that time by the Finance Center it was determined that as a Regular officer he was subject to the Dual Compensation Act of 1964.

The amount of retired pay which a retired officer of a Regular component is entitled to receives while he is employed by the Federal Government as civilian employee is governed by the formula prescribed in section 201 (a) of the Dual Compensation Act of August 19, 1964, Public Law 88-448, effective December 1, 1964, which, as codified in 5 U. S. C. 5532 (b) (1964 ed. Supp. II), provides as follows:

"(b) A retired officer of a regular component of a unformed service who holds a position is entitled to receive the full pay of the position, but during the period for which he receives pay, his retired or retirement pay shall be reduced to an annual rate equal to the first $2,000 of the retired or retirement pay plus one half of the remainder, if any. In the operation of the formula for the reduction of retired or retirement pay under this subsection, the amount of $2,00 shall be increased, from time to time, by appropriate percentage, in direct proportion to each increase in retired or retirement pay under section 1401a(b) of title 10 to reflect change in the Consumer Price Index."

The $2,000 limitation was increased to $2,074 effective December 1, 1966, to $2,154.89 effective April 1, 1968, and to $2,241.09 effective February 1, 1969, to reflect changes in the Consumer Price Index.

While employed as a civilian employee of the Government Mr. Korchek's retired pay was required to be reduced in accordance with the above formula. Such reduction in his retired pay was not made until November 1, 1969. My letter dated October 29, 1969, copy enclosed, the Army Finance Center advised him that under the formula he was overpaid retired pay for the period December 6, 1967, through October 31, 1969, in the amount of $5,054.02, the amount stated in H. R. 15395. We find no discrepancies in the itemization as shown. As indicated on page 2 of letter dated October 29, 1969, the member has agreed to reduce his indebtedness by a monthly deduction of $45 from his retired pay effective December 1, 1969. The available records indicate that only $45 of the $5,054.02 has been liquidated.

We do not view with favor legislation such as H. R. 15395 which grants preferential treatment to an individual over other individuals similarly situated. Other retired Regular officers, like Chief Warrant Officer Korchek, have been required to refund overpayment of retired pay received because of administrative errors in failing to reduce their retired pay while employed by the Federal Government. On the record before us we find no special equity in Mr. Korchek's case which would warrant our recommending favorable consideration of the bill.

At the request of the sponsor of H. R. 15395, we are today advising the Department of the Army that we would have no objection if the Army should decide to withhold collection action in this case until congressional action is taken on this relief legislation or until the end of the 91st Congress, whichever occurs first.

Sincerely yours,

R. F. KELLER

Assistant Comptroller General of the United States