B-171936, APR 8, 1971, 50 COMP GEN 718

B-171936, APR 8, 1971, 50 COMP GEN 718

MILITARY PERSONNEL - RECORD CORRECTION - DEPOSITS RETROACTIVELY IN THE UNIFORMED SERVICES SAVINGS DEPOSIT PROGRAM - MISSING, INTERNED, ETC., PERSONS WHEN AS A RESULT OF THE CORRECTION OF RECORDS UNDER 10 U.S.C. 1552 A MEMBER OF THE UNIFORMED SERVICES IN A MISSING STATUS BECOMES ENTITLED TO AN ITEM OF PAY OR ALLOWANCE RETROACTIVELY, THE AMOUNT DUE THE MEMBER MAY BE DEPOSITED RETROACTIVELY IN THE UNIFORMED SERVICES SAVINGS DEPOSIT PROGRAM ESTABLISHED BY PUBLIC LAW 90-122 (10 U.S.C. 1035(E)), IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE SAME INFORMATION CONTAINED IN THE CORRECTED RECORDS, AND THE RECORD AS CORRECTED SHOULD SHOW THE AMOUNTS AND DATES OF ALL DEPOSITS MADE PURSUANT TO THE CORRECTED RECORD. SAVINGS DEPOSITS - RETROACTIVE DEPOSITS - MILITARY PERSONNEL - ADMINISTRATIVE ERROR ADJUSTMENTS - MISSING, INTERNED, ETC., PERSONS ADDITIONAL AMOUNTS DUE A MISSING MEMBER OF THE UNIFORMED SERVICES NOT AS A RESULT OF CORRECTION OF RECORDS PURSUANT TO 10 U.S.C. 1552, BUT SIMPLY BECAUSE THE AMOUNTS DUE WERE NOT CREDITED THROUGH ADMINISTRATIVE OVERSIGHT, MAY BE RETROACTIVELY DEPOSITED IN THE UNIFORMED SERVICES SAVINGS DEPOSIT PROGRAM (10 U.S.C. 1035(E)) COMMENSURATE WITH THE DATE A DEPOSIT ACCRUED, FOR IT WOULD BE CONTRARY TO CONGRESSIONAL INTENT IN ENACTING THE SAVINGS DEPOSIT PROGRAM TO PREVENT DEPOSITS FROM BEING MADE AS THEY ACCRUED MERELY BECAUSE OF ADMINISTRATIVE ERRORS.

TO THE SECRETARY OF DEFENSE, APRIL 8, 1971:

FURTHER REFERENCE IS MADE TO THE LETTER DATED FEBRUARY 13, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION ON TWO QUESTIONS WHICH HAVE ARISEN IN THE ADMINISTRATION OF 10 U.S.C. 1035(E), CONCERNING THE EFFECTIVE DATE OF DEPOSITS OF ALLOTMENTS MADE FROM THE PAY AND ALLOWANCES OF SERVICE MEMBERS IN A "MISSING STATUS" TO THE UNIFORMED SERVICES SAVINGS DEPOSIT PROGRAM (USSDP), WHEN SUCH DEPOSITS ARE MADE AS A RESULT OF RETROACTIVE INCREASES IN THE MEMBERS' PAY OR ALLOWANCES.

THE QUESTIONS PRESENTED ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 449, AS FOLLOWS:

1. WHEN AS A RESULT OF CORRECTION OF RECORDS UNDER 10 U.S.C. 1552 A MEMBER IN A MISSING STATUS BECOMES ENTITLED TO AN ITEM OF PAY OR ALLOWANCES RETROACTIVELY MAY THE AMOUNT BE DEPOSITED IN USSDP RETROACTIVELY COMMENSURATE WITH THE DATE THAT IT ACCRUED UNDER RECORDS AS CORRECTED?

2. WHEN A MISSING MEMBER'S PAY ACCOUNT IS ADJUSTED RETROACTIVELY (SUCH AS FOR LONGEVITY ADJUSTMENT OR PROMOTION, ETC.), NOT AS A RESULT OF CORRECTION OF RECORDS, MAY THE ADDITIONAL AMOUNT BE DEPOSITED IN USSDP COMMENSURATE WITH THE MONTH OR MONTHS THE ADDITIONAL AMOUNT ACCRUED OR IS THE CUMULATIVE AMOUNT FOR DEPOSIT EFFECTIVE ON THE DATE THE ADJUSTMENT IS MADE?

THE LAW AUTHORIZING THE ALLOTMENT OF PAY TO THE USSDP OF A MEMBER IN A MISSING STATUS, CONTAINED IN THE ACT OF NOVEMBER 3, 1967, PUBLIC LAW 90- 122, 81 STAT. 361, 10 U.S.C. 1035(E), PROVIDES:

(E) THE SECRETARY CONCERNED, OR HIS DESIGNEE, MAY IN THE INTEREST OF A MEMBER WHO IS IN A MISSING STATUS (AS DEFINED IN SECTION 551(2) OF TITLE 37) OR HIS DEPENDENTS, INITIATE, STOP, MODIFY, AND CHANGE ALLOTMENTS, AND AUTHORIZE A WITHDRAWAL OF DEPOSITS, MADE UNDER THIS SECTION, EVEN THOUGH THE MEMBER HAD AN OPPORTUNITY TO DEPOSIT AMOUNTS UNDER THIS SECTION AND ELECTED NOT TO DO SO. INTEREST MAY BE COMPUTED FROM THE DAY THE MEMBER ENTERED A MISSING STATUS, OR SEPTEMBER 1, 1966, WHICHEVER IS LATER.

IN REGARD TO THE CORRECTION OF MILITARY RECORDS 10 U.S.C. 1552(A) AND (C) PROVIDE IN PERTINENT PART:

(A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. UNDER PROCEDURES PRESCRIBED BY HIM, THE SECRETARY OF THE TREASURY MAY IN THE SAME MANNER CORRECT ANY MILITARY RECORD OF THE COAST GUARD. EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

(C) THE DEPARTMENT CONCERNED MAY PAY, FROM APPLICABLE CURRENT APPROPRIATIONS, A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS, OR FOR THE REPAYMENT OF A FINE OR FORFEITURE, IF, AS A RESULT OF CORRECTING A RECORD UNDER THIS SECTION, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS OR ANOTHER'S SERVICE IN THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, AS THE CASE MAY BE. ***

IT IS WELL SETTLED THAT WHEN A MEMBER'S RECORDS ARE CORRECTED PURSUANT TO 10 U.S.C. 1552 HE BECOMES ENTITLED TO ALL THE BENEFITS DUE HIM ON THE BASIS OF THE FACTS AS SHOWN BY THE CORRECTED RECORDS, AND HIS RIGHTS ARE DETERMINED IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. SEE 32 COMP. GEN. 242 (1952); 34 ID. 7 (1954); AND 44 ID. 143, 146 (1964), AND CASES CITED THEREIN.

THEREFORE, IN LINE WITH THESE DECISIONS, THE ANSWER TO QUESTION 1 IS THAT THE MISSING MEMBER'S PAY AND ALLOWANCES WHICH BECOME DUE HIM RETROACTIVELY AS A RESULT OF A CORRECTION OF HIS RECORDS PURSUANT TO 10 U.S.C. 1552 MAY BE DEPOSITED IN THE USSDP RETROACTIVELY IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE SAME INFORMATION CONTAINED IN THE CORRECTED RECORDS. THE RECORD AS CORRECTED SHOULD SHOW THE AMOUNTS AND DATES OF ALL DEPOSITS MADE PURSUANT TO THE RECORD CORRECTION.

IN REGARD TO QUESTION 2, THE DISCUSSION RECEIVED WITH MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 449 SAYS IN PART -

*** THERE IS NO QUESTION BUT THAT ENTITLEMENT ACCRUED AT THE PROPER TIME. THE AMOUNTS SIMPLY WERE NOT CREDITED THROUGH ADMINISTRATIVE OVERSIGHT.

WE HAVE GENERALLY APPROVED THE RETROACTIVE CORRECTION OF ADMINISTRATION OR CLERICAL ERRORS TO INCREASE OR DECREASE ALLOWABLE BENEFITS. SEE 46 COMP. GEN. 595, 597 (1967); 37 ID. 300 (1957); 34 ID. 380 (1955).

HERE THE RETROACTIVE CORRECTION OF THE MEMBER'S RECORD ENTAILS NOT ONLY THE CORRECTION OF HIS PAY AND ALLOWANCES, BUT ALSO THE RETROACTIVE CORRECTION OF THE AMOUNTS DEPOSITED IN THE USSDP. SINCE THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-122 CLEARLY SHOWS THAT THAT LEGISLATION WAS MEANT TO BE BENEFICIAL TO THOSE SERVICE MEMBERS IN A MISSING STATUS, AND WAS MADE RETROACTIVE WITH RESPECT TO PERSONNEL IN A CAPTURED OR MISSING STATUS PRIOR TO THE DATE IT WAS ENACTED, IN OUR OPINION IT WOULD BE CONTRARY TO THE CONGRESSIONAL INTENT TO PREVENT THE DEPOSITS IN QUESTION FROM BEING MADE AS THEY ACCRUED MERELY BECAUSE OF ADMINISTRATIVE ERRORS. ACCORDINGLY, QUESTION 2 IS ANSWERED BY SAYING THAT WHEN A MISSING MEMBER'S PAY ACCOUNTS IS ADJUSTED RETROACTIVELY AS A RESULT OF A CORRECTION OF AN ADMINISTRATIVE ERROR, THE ADDITIONAL AMOUNT MAY BE DEPOSITED IN THE USSDP COMMENSURATE WITH THE DATE IT ACCRUED.