B-174412, JAN 4, 1972

B-174412: Jan 4, 1972

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RESERVISTS WERE AUTHORIZED RETIREMENT BENEFITS EQUAL TO THOSE OF NAVAL RESERVE PERSONNEL. THERE IS NO AUTHORITY TO ALLOW RETENTION OF THE OVERPAYMENT. IS CURRENTLY PENDING IN THE SENATE. GUILD: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19. THAT WAS PAID TO HER SINCE HER RETIREMENT ON OCTOBER 1. YOU STATE THAT THE MEMBER WAS ERRONEOUSLY CERTIFIED UPON HER RETIREMENT AS BEING ENTITLED TO A 10 PERCENT INCREASE IN RETIRED PAY FOR GOOD CONDUCT. UPON DISCOVERY OF THIS ERRONEOUS PAYMENT THE MEMBER WAS ADVISED THAT A MONTHLY LIQUIDATION OF THIS OVERPAYMENT WAS BEING INITIATED PURSUANT TO 5 U.S.C. 5514 AT THE RATE OF $50 PER MONTH. YOU SAY THAT THE MONTHLY COLLECTION WAS REDUCED TO $10 PER MONTH EFFECTIVE OCTOBER 1.

B-174412, JAN 4, 1972

MILITARY PERSONNEL - RETIREMENT PAY FOR GOOD CONDUCT DECISION DENYING CHIEF PETTY OFFICER CATHERINE EDEN, USCGR (RETIRED) THE RIGHT TO RETAIN A TEN PERCENT INCREASE FOR GOOD CONDUCT MISTAKENLY AUTHORIZED BY THE U.S. COAST GUARD RESERVE. WHILE THE PROVISIONS OF 14 U.S.C. 755(E) AUTHORIZE RESERVISTS THE SAME BENEFITS AS REGULAR COAST GUARD ENLISTED PERSONNEL, THOSE PROVISIONS ONLY WENT INTO EFFECT ON SEPTEMBER 25, 1965. SINCE, PRIOR TO THAT DATE, RESERVISTS WERE AUTHORIZED RETIREMENT BENEFITS EQUAL TO THOSE OF NAVAL RESERVE PERSONNEL, THERE IS NO AUTHORITY TO ALLOW RETENTION OF THE OVERPAYMENT. HOWEVER, H.R. 7614, A BILL THAT WOULD PROVIDE THE AUTHORITY FOR MRS. EDEN TO RETAIN THE OVERPAYMENT PASSED THE HOUSE OF REPRESENTATIVES ON MAY 17, 1971, AND IS CURRENTLY PENDING IN THE SENATE.

TO MRS. J. M. GUILD:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19, 1971 (FILE REFERENCE 7260), REQUESTING AN ADVANCE DECISION WHETHER CHIEF PETTY OFFICER CATHERINE EDEN, 4000-066, USCGR (RETIRED), SHOULD BE PERMITTED TO RETAIN THE 10 PERCENT INCREASE IN RETIRED PAY FOR GOOD CONDUCT (TOTALING $1,437.36), THAT WAS PAID TO HER SINCE HER RETIREMENT ON OCTOBER 1, 1969.

YOU STATE THAT THE MEMBER WAS ERRONEOUSLY CERTIFIED UPON HER RETIREMENT AS BEING ENTITLED TO A 10 PERCENT INCREASE IN RETIRED PAY FOR GOOD CONDUCT. UPON DISCOVERY OF THIS ERRONEOUS PAYMENT THE MEMBER WAS ADVISED THAT A MONTHLY LIQUIDATION OF THIS OVERPAYMENT WAS BEING INITIATED PURSUANT TO 5 U.S.C. 5514 AT THE RATE OF $50 PER MONTH. HOWEVER, YOU SAY THAT THE MONTHLY COLLECTION WAS REDUCED TO $10 PER MONTH EFFECTIVE OCTOBER 1, 1971, AT THE REQUEST OF MRS. EDEN.

CORRESPONDENCE FROM CHIEF PETTY OFFICER EDEN ENCLOSED WITH YOUR SUBMISSION STATES THAT SHE IS OF THE OPINION THAT IF AN ERROR WAS MADE, SUCH ERROR WAS MADE ADMINISTRATIVELY AND THAT SINCE SHE IS FAULTLESS IN THIS MATTER, SHE DOES NOT FEEL THAT SHE SHOULD BE PENALIZED BY HAVING HER RETIRED PAY CHECKED FOR THE OVERPAYMENT.

YOU SAY THAT YOU HAVE CAREFULLY REVIEWED SECTIONS 357 AND 755(E) OF TITLE 14, U.S. CODE, THEIR PREDECESSOR STATUTES, 45 COMP. GEN. 793, AND OTHER DECISIONS WITHOUT SUCCESSFULLY ARRIVING AT A CONCLUSION THAT WOULD PERMIT THE MEMBER TO RETAIN THIS OVERPAYMENT. SINCE YOU FEEL THAT THE COLLECTION OF THE INDEBTEDNESS AGAINST THE MEMBER IS AGAINST EQUITY AND GOOD CONSCIENCE, YOU ASK WHETHER THERE IS ANY NEW BASIS UPON WHICH THESE PAYMENTS CAN BE VALIDATED ON THE MEMBER'S BEHALF.

ON THE BASIS OF THE INFORMATION PROVIDED IT APPEARS THAT THE MEMBER WAS RETIRED AS A CHIEF PETTY OFFICER (E-7), USCGR, ON OCTOBER 1, 1969, UNDER THE PROVISIONS OF 14 U.S.C. 755(E) AND WAS CREDITED WITH 24 YEARS' SERVICE FOR RETIREMENT PURPOSES.

SECTION 755(E) OF TITLE 14, U.S.C. AS AMENDED BY PUBLIC LAW 89-200, 79 STAT. 834, APPROVED SEPTEMBER 25, 1965 PROVIDES IN PERTINENT PART:

"ENLISTED MEMBERS OF THE COAST GUARD RESERVE REQUESTING RETIREMENT ON THE BASIS OF YEARS OF ACTIVE SERVICE SHALL BE ENTITLED TO THE SAME RETIREMENT RIGHTS, BENEFITS, AND PRIVILEGES AS PRESCRIBED BY LAW FOR ENLISTED MEMBERS OF THE REGULAR COAST GUARD."

AMONG THE RETIREMENT RIGHTS, BENEFITS AND PRIVILEGES AFFORDED ENLISTED MEMBERS OF THE REGULAR COAST GUARD IS THE INCREASE IN RETIREMENT PAY AUTHORIZED BY SECTION 357 OF TITLE 14, U.S. CODE, AS AMENDED BY PUBLIC LAW 88-114, APPROVED SEPTEMBER 6, 1963, 77 STAT. 144. PRIOR TO THAT AMENDMENT ENLISTED MEMBERS OF THE REGULAR COAST GUARD WERE PERMITTED TO HAVE THEIR RETIRED PAY INCREASED BY 10 PERCENT OF THEIR ACTIVE DUTY PAY FOR (A) EXTRAORDINARY HEROISM IN LINE OF DUTY OR (B) MAINTAINING AN AVERAGE MARK IN CONDUCT DURING THEIR SERVICE IN THE COAST GUARD OF NOT LESS THAN 97 1/2 PERCENT OF THE MAXIMUM. THE 1963 AMENDMENT REMOVED THE "GOOD CONDUCT" AUTHORIZATION FOR INCREASED RETIRED PAY, BUT DID PROVIDE IN SECTION 2 OF THAT AMENDMENT THAT ANY ENLISTED MEMBER IN SERVICE ON THE EFFECTIVE DATE OF THE AMENDING ACT (SEPTEMBER 6, 1963) WOULD NOT BE AFFECTED THEREBY. THIS SECTION HOWEVER, RELATES ONLY TO ENLISTED MEMBERS OF THE REGULAR COAST GUARD WHO WERE SERVING ON ACTIVE DUTY ON SEPTEMBER 6, 1963. COMP. GEN. 793 (1966).

WHILE THE PROVISIONS OF 14 U.S.C. 755(E) AUTHORIZE ENLISTED RESERVISTS TO RECEIVE THE SAME BENEFITS AS REGULAR COAST GUARD ENLISTED PERSONNEL, THOSE PROVISIONS ONLY WENT INTO EFFECT ON SEPTEMBER 25, 1965. PRIOR TO THAT DATE, THAT SUBSECTION AUTHORIZED FOR MEMBERS OF THE COAST GUARD RESERVE "THE SAME RETIREMENT BENEFITS AS PRESCRIBED BY LAW FOR PERSONNEL OF THE NAVAL RESERVE." IN THIS REGARD, WE EXPRESSED THE OPINION IN 45 COMP. GEN. 793 (1966), THAT SINCE ENLISTED MEMBERS OF THE NAVAL RESERVE WERE NOT ENTITLED TO A 10 PERCENT INCREASE IN RETIRED PAY ON ACCOUNT OF GOOD CONDUCT MARKS AT THAT TIME, ENLISTED MEMBERS OF THE COAST GUARD RESERVE HAD NO RETIREMENT RIGHTS, INCHOATE OR OTHERWISE, TO WHICH THE SAVED PAY PROVISION OF THE 1963 ACT COULD APPLY. THEREFORE, THERE EXISTS NO AUTHORITY UNDER WHICH CHIEF PETTY OFFICER EDEN WAS ENTITLED TO RECEIVE THE 10 PERCENT INCREASE IN RETIRED PAY FOR GOOD CONDUCT OR WHICH WOULD PERMIT HER TO RETAIN ANY SUCH PAYMENTS MADE TO HER. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

IN THIS REGARD, THERE IS PRESENTLY PENDING BEFORE CONGRESS H.R. 7614 WHICH WOULD PROVIDE AUTHORITY TO RELIEVE MEMBERS OF THE UNIFORMED SERVICES OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES UNDER CERTAIN CONDITIONS. THIS BILL PASSED THE HOUSE OF REPRESENTATIVES ON MAY 17, 1971, BUT ACTION HAS YET TO BE TAKEN BY THE SENATE. THE BILL, IF ENACTED INTO LAW, WOULD PROVIDE AUTHORITY (SIMILAR TO 5 U.S.C. 5584 WITH RESPECT TO CIVILIAN EMPLOYEES) TO WAIVE THE COLLECTION OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES, OTHER THAN TRAVEL AND TRANSPORTATION ALLOWANCES, MADE TO MEMBERS OF THE UNIFORMED SERVICES.