B-172047, FEB 23, 1972

B-172047, FEB 23, 1972

MILITARY PERSONNEL - ERRONEOUS OVERPAYMENT OF RETIRED PAY - MANDATORY RETIREMENT DATE CONCERNING WHETHER THE RETIRED PAY OF COL. EARLE R. MYERS, USAF, RETIRED, WAS ERRONEOUSLY COMPUTED, RESULTING IN HIS INDEBTEDNESS TO THE UNITED STATES AS DETERMINED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLO. UNLESS ANOTHER PROVISION OF LAW SPECIFICALLY PERMITS RETIREMENT AFTER THE SCHEDULED MANDATORY RETIREMENT DATE, PAYMENT OF A SUBSEQUENT HIGHER RATE OF ACTIVE DUTY BASIC PAY IS PRECLUDED BY 10 U.S.C. 8916(A) AND 5 U.S.C. 8301(A). COL. MYERS SUGGESTS THAT HE WAS RETAINED ON ACTIVE DUTY BECAUSE OF A PHYSICAL CONDITION DISCOVERED DURING HIS RETIREMENT PHYSICAL UNDER THE PROVISIONS OF 10 U.S.C. 8446, AND THEREFORE, HIS RETIREMENT WAS NOT SUBJECT TO THE RESTRICTIONS OF THE AFOREMENTIONED MANDATORY RETIREMENT DATE PROVISIONS. THIS SUGGESTION IS WITHOUT MERIT SINCE 10 U.S.C. 8446 IS NOT APPLICABLE TO OFFICERS OF THE REGULAR AIR FORCE. ACCORDINGLY, THERE EXISTS NO BASIS FOR QUESTIONING THE AIR FORCE'S DETERMINATION OF COL. MYERS' INDEBTEDNESS.

TO COLONEL EARLE R. MYERS:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1971, WITH ENCLOSURES, REQUESTING A DECISION WHETHER YOUR RETIRED PAY WAS ERRONEOUSLY COMPUTED WHICH RESULTED IN YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,682.48 AS DETERMINED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO.

OTHER THAN THE INFORMATION CONTAINED IN YOUR LETTER AND ENCLOSURES, WE HAVE NO ADDITIONAL INFORMATION CONCERNING YOUR RETIRED STATUS. RETIREMENT ORDER DATED JULY 7, 1966, SHOWS THAT YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 21, 1966, AND RETIRED JULY 22, 1966, BY REASON OF PHYSICAL DISABILITY UNDER 10 U.S.C. 1201. THE ORDER ALSO SHOWS THAT IN COMPUTING YOUR YEARS OF SERVICE FOR MANDATORY RETIREMENT PURPOSES (10 U.S.C. 8888 OR 8927), YOU HAD 28 YEARS AND 29 DAYS' SERVICE. THERE IS CITED IN YOUR RETIREMENT ORDER UNDER REMARKS "AFAFC:43 COMPTROLLER GENERAL 742, (4 FEB, 66)."

IT APPEARS THAT YOU WERE SCHEDULED TO BE MANDATORILY RETIRED FEBRUARY 4, 1966, UNDER 10 U.S.C. 8916, BUT THAT YOU WERE RETAINED ON ACTIVE DUTY BEYOND YOUR MANDATORY RETIREMENT DATE BECAUSE OF A PHYSICAL CONDITION DISCOVERED DURING YOUR RETIREMENT PHYSICAL AND YOU WERE SUBSEQUENTLY RETIRED BY REASON OF PHYSICAL DISABILITY ON JULY 22, 1966.

IT FURTHER APPEARS THAT THE AIR FORCE ACCOUNTING AND FINANCE CENTER DETERMINED THAT DURING THE PERIOD JULY 22, 1966, TO APRIL 30, 1971, YOUR RETIRED PAY WAS ERRONEOUSLY COMPUTED ON THE RATES OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE ON JULY 1, 1966, INSTEAD OF THE ACTIVE DUTY PAY RATES THAT HAD BECOME EFFECTIVE ON SEPTEMBER 1, 1965, WHICH WERE THE APPLICABLE RATES PAYABLE AND IN EFFECT ON YOUR MANDATORY RETIREMENT DATE, FEBRUARY 4, 1966. THE OVERPAYMENT IS STATED TO BE IN THE AMOUNT OF $1,682.48 FOR THE ABOVE PERIOD. IN SUPPORT OF THE INDEBTEDNESS, THE AIR FORCE ACCOUNTING AND FINANCE CENTER CITED OUR DECISIONS, 43 COMP. GEN. 742 (1964); B- 153784, SEPTEMBER 17, 1969, AND OCTOBER 27, 1969, AND B-170794, OCTOBER 7, 1970, COPIES OF WHICH APPEAR TO HAVE BEEN FURNISHED YOU.

YOU EXPRESS THE VIEW THAT THE ABOVE-CITED DECISIONS INVOLVED ONLY THE CREDITING OF ACTIVE SERVICE PERFORMED AFTER THE OFFICER'S MANDATORY RETIREMENT DATE FOR LONGEVITY PAY PURPOSES AND THOSE DECISIONS DID NOT COVER A SITUATION SUCH AS YOURS. IT SEEMS TO BE YOUR VIEW THAT, SINCE YOU WERE ENTITLED TO ACTIVE DUTY PAY DURING THE PERIOD JULY 1 TO 21, 1966, AT THE RATE OF ACTIVE DUTY PAY THAT BECAME EFFECTIVE JULY 1, 1966 (PURSUANT TO THE ACT OF JULY 13, 1966, PUBLIC LAW 89-501, 80 STAT. 275, WHICH BECAME EFFECTIVE JULY 1, 1966), YOUR RETIRED PAY SHOULD BE COMPUTED ON THOSE RATES. IN FURTHER SUPPORT OF YOUR VIEW, YOU QUOTE 10 U.S.C. 8446, WHICH PROVIDES FOR THE RETENTION ON ACTIVE DUTY OF ANY DISABLED OFFICER AS THERE INDICATED, "NOTWITHSTANDING ANY OTHER PROVISION OF LAW."

CONTRARY TO YOUR APPARENT BELIEF, EXCEPT FOR 43 COMP. GEN. 742 (1964), THERE WAS INVOLVED IN THE OTHER CITED COMPTROLLER GENERAL DECISIONS THE QUESTION OF THE APPLICABLE RATE OF BASIC PAY TO BE USED IN COMPUTING RETIRED PAY FOR THOSE MEMBERS WHO WERE RETAINED ON ACTIVE DUTY BEYOND THEIR MANDATORY RETIREMENT DATE PENDING PHYSICAL EVALUATIONS.

OUR DECISION OF OCTOBER 7, 1970, B-170794, 50 COMP. GEN. 258, COPY ENCLOSED, CONCERNED TWO OFFICERS WHO WERE SUBJECT TO THE MANDATORY RETIREMENT PROVISIONS OF 10 U.S.C. 8916 AND 8921, ONE OF THE OFFICERS HAVING BEEN RETAINED ON ACTIVE DUTY BEYOND HIS MANDATORY RETIREMENT DATE BECAUSE OF A PHYSICAL DISABILITY. IN THAT DECISION REFERENCE WAS MADE TO DECISION OF SEPTEMBER 17, 1969, B-153784, INVOLVING AN OFFICER WHO WAS SUBJECT TO MANDATORY RETIREMENT UNDER 10 U.S.C. 8916, ON APRIL 24, 1969, WITH RETIREMENT EFFECTIVE MAY 1, 1969, PURSUANT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT IN 5 U.S.C. 8301(A) AND WE SAID:

" *** HOWEVER, BECAUSE OF PENDING PHYSICAL EVALUATION ACTIONS HIS RETIREMENT DATE WAS EXTENDED TO JULY 2, 1969, WHEN HE WAS RETIRED BY REASON OF PHYSICAL DISABILITY UNDER 10 U.S.C. 1201. WE THERE SAID THAT UNDER THE PROVISIONS OF 10 U.S.C. 8916(A) AND 5 U.S.C. 8301(A) THE MANDATORY RETIREMENT DATE OF THE OFFICER WAS MAY 1, 1969, AND THAT UNLESS SOME OTHER PROVISION OF LAW PERMITTED HIS RETIREMENT ON OR AFTER JULY 1, 1969, THE RESTRICTIVE PROVISIONS OF 5 U.S.C. 8301(B) WOULD PRECLUDE USE OF THE HIGHER RATE OF ACTIVE DUTY BASIC PAY WHICH BECAME EFFECTIVE JULY 1, 1969, AND THAT THE COMPUTATION OF HIS RETIRED PAY WOULD BE REQUIRED TO BE BASED ON THE ACTIVE DUTY RATES OF PAY THAT WERE IN EFFECT ON APRIL 24, 1969, NOTWITHSTANDING THE PROVISIONS OF 10 U.S.C. 1401 FOR COMPUTING DISABILITY RETIRED PAY ON THE RATES OF ACTIVE DUTY BASIC PAY IN EFFECT ON THE DATE OF DISABILITY RETIREMENT."

YOUR CASE COMES WITHIN THE SCOPE OF THE DECISION OF SEPTEMBER 17, 1969, B -153784, COPY ENCLOSED.

WITH RESPECT TO YOUR SUGGESTION THAT YOU WERE RETAINED ON ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 8446 AND THAT THEREFORE YOUR RETIREMENT PROVISIONS OF 10 U.S.C. 8916(A) OR 5 U.S.C. 8301, THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT YOU WERE RETAINED ON ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 8446.

SECTION 8446 IS A CODIFICATION OF THE ACT OF JUNE 19, 1948, PUBLIC LAW 680 - 80TH CONGRESS, AS AMENDED BY THE ACT OF JUNE 15, 1956, PUBLIC LAW 580 - 84TH CONGRESS. THE PURPOSE OF THE 1948 LAW WAS TO AUTHORIZE THE RETENTION ON ACTIVE DUTY WITH PAY AND ALLOWANCES AND MEDICAL AND HOSPITAL CARE OF DISABLED TEMPORARY OFFICERS OF THE ARMY AND AIR FORCE AFTER THE EXPIRATION OF THEIR APPOINTMENTS AS SUCH OFFICERS UNTIL THEIR TREATMENT REACHED A POINT WHERE THEY WOULD NOT BE FURTHER BENEFITED BY RETENTION IN A MILITARY HOSPITAL OR IN THE MILITARY SERVICE. THE PURPOSE OF THE 1956 LAW WAS TO AMEND THE 1948 LAW TO PROVIDE FOR THE TRANSFER OF SUCH OFFICERS FROM MILITARY HOSPITALS TO VETERANS' ADMINISTRATION HOSPITALS IN THE SAME MANNER AS REGULAR AND RESERVE OFFICERS WERE TRANSFERRED TO SUCH HOSPITALS AND THEREBY REMOVE THE DISCRIMINATORY ADVANTAGE WHICH THE 1948 LAW PROVIDED FOR TEMPORARY OFFICERS OF THE ARMY AND AIR FORCE.

SECTION 34(A) OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1568, PUBLIC LAW 85-861, WHICH CODIFIED THE 1948 LAW AS AMENDED BY THE 1956 LAW, STATED THAT "IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED" BY THE 1958 CODIFICATION. SINCE THE PROVISIONS OF 10 U.S.C. 8446 DO NOT APPLY TO OFFICERS OF THE REGULAR AIR FORCE, WE MUST CONCLUDE THAT YOU WERE NOT RETAINED ON ACTIVE DUTY UNDER THAT PROVISION OF LAW.

ACCORDINGLY, ON THE PRESENT RECORD WE FIND NO BASIS FOR QUESTIONING THE CORRECTNESS OF THE DETERMINATION OF INDEBTEDNESS BY THE AIR FORCE IN YOUR CASE.