B-181514, MAY 9, 1975

B-181514: May 9, 1975

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CARPENTER REPORTS THAT IN LATE 1971: "*** THE CIVILIAN PERSONNEL OFFICE AT WALTER REED ARMY MEDICAL CENTER WAS QUESTIONED CONCERNING MY ELIGIBILITY DATE OF RETIREMENT. BASED ON OFFICIAL RECORDS I WAS VOLUNTARILY RETIRED ON 29 DECEMBER 1971 AS EVIDENCED BY STANDARD FORM 50 DATED 4 NOVEMBER 1971 ***.". CARPENTER WAS NOT YET 62 YEARS OF AGE AND UNDER APPLICABLE LAW AND CIVIL SERVICE COMMISSION REGULATIONS WAS ELIGIBLE FOR OPTIONAL RETIREMENT ONLY UPON COMPLETION OF 20 YEARS OF CREDITABLE FEDERAL SERVICE. SHE WAS ERRONEOUSLY ADVISED THAT SHE WAS ELIGIBLE FOR VOLUNTARY RETIREMENT IN DECEMBER 1971. CARPENTER OF THE ERROR IN SERVICE COMPUTATION DATE AND OF THE FACT THAT SHE WAS NOT ELIGIBLE FOR OPTIONAL RETIREMENT UNTIL DECEMBER 1973.

B-181514, MAY 9, 1975

WHILE THE BACK PAY ACT OF 1966 AUTHORIZES RECOVERY OF PAY, ALLOWANCES AND DIFFERENTIALS LOST BY AN EMPLOYEE DURING A PERIOD OF SEPARATION DUE TO ERRONEOUS PERSONNEL ACTION BY ANY AGENCY, THE ACT DOES NOT AUTHORIZE RECOVERY OF ANY TRAVEL AND TRANSPORTATION EXPENSES INCURRED BY THE EMPLOYEE INCIDENT TO THE ERRONEOUS SEPARATION.

MABLE S. CARPENTER - TRAVEL AND TRANSPORTATION

EXPENSES INCIDENT TO RECOVERY OF BACK PAY:

MRS. MABLE S. CARPENTER CLAIMS $2,100 FOR TRAVEL AND TRANSPORTATION EXPENSES INCURRED INCIDENT TO AN ERRONEOUS SEPARATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. BY SETTLEMENT CERTIFICATE OF APRIL 5, 1973, OUR TRANSPORTATION AND CLAIMS DIVISION DISALLOWED HER CLAIM AND MRS. CARPENTER HAS REQUESTED RECONSIDERATION OF THE DISALLOWANCE.

MRS. CARPENTER REPORTS THAT IN LATE 1971: "*** THE CIVILIAN PERSONNEL OFFICE AT WALTER REED ARMY MEDICAL CENTER WAS QUESTIONED CONCERNING MY ELIGIBILITY DATE OF RETIREMENT. BASED ON OFFICIAL RECORDS I WAS VOLUNTARILY RETIRED ON 29 DECEMBER 1971 AS EVIDENCED BY STANDARD FORM 50 DATED 4 NOVEMBER 1971 ***." IT APPEARS THAT AT THE TIME OF HER RETIREMENT MRS. CARPENTER WAS NOT YET 62 YEARS OF AGE AND UNDER APPLICABLE LAW AND CIVIL SERVICE COMMISSION REGULATIONS WAS ELIGIBLE FOR OPTIONAL RETIREMENT ONLY UPON COMPLETION OF 20 YEARS OF CREDITABLE FEDERAL SERVICE. HOWEVER, MRS. CARPENTER RETIRED BECAUSE THE AGENCY RECORDS REFLECTED A 1951 SERVICE COMPUTATION DATE INSTEAD OF THE CORRECT DATE, DECEMBER 18, 1953, AND SHE WAS ERRONEOUSLY ADVISED THAT SHE WAS ELIGIBLE FOR VOLUNTARY RETIREMENT IN DECEMBER 1971.

AFTER HER RETIREMENT IN DECEMBER 1971, MRS. CARPENTER MOVED HER RESIDENCE FROM WASHINGTON, D.C. TO SOUTH CAROLINA. BY LETTER OF APRIL 21, 1972, THE ARMY ADVISED MRS. CARPENTER OF THE ERROR IN SERVICE COMPUTATION DATE AND OF THE FACT THAT SHE WAS NOT ELIGIBLE FOR OPTIONAL RETIREMENT UNTIL DECEMBER 1973. THE LETTER LISTED THE VARIOUS OPTIONS OPEN TO HER, INCLUDING A RETURN TO ACTIVE DUTY. ACCORDINGLY, AFTER CONSIDERING THE MATTER, ON MAY 16, 1972, SHE RETURNED TO HER FORMER JOB AT WALTER REED AND WAS GIVEN BACK PAY FROM DECEMBER 29, 1971, THE EFFECTIVE DATE OF HER REINSTATEMENT, ALONG WITH CREDIT FOR ANNUAL AND SICK LEAVE. MRS. CARPENTER ALSO CLAIMED $1,600 FOR MOVING EXPENSES AND $500 FOR LIVING EXPENSES INCURRED IN CONNECTION WITH THE MOVE TO AND FROM SOUTH CAROLINA. SHE APPEALS THE DISALLOWANCE OF THAT RELOCATION CLAIM.

THE BACK PAY ACT OF 1966, PUBLIC LAW 89-380, 80 STAT. 94, 5 U.S.C. SEC. 5596 (1970), PROVIDES THAT AN AGENCY EMPLOYEE WHO IS FOUND TO HAVE UNDERGONE AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF" THE EMPLOYEE'S PAY, ALLOWANCES, OR DIFFERENTIALS IS ENTITLED, UPON CORRECTION OF THE PERSONNEL ACTION, TO RECOVER THE AMOUNT THE EMPLOYEE WOULD HAVE BEEN PAID HAD THE PERSONNEL ACTION NOT OCCURRED, LESS ANY AMOUNT OTHERWISE EARNED BY THE EMPLOYEE DURING THE PERIOD INVOLVED. IN THIS CONNECTION, WE HAVE RECOGNIZED THAT AN EMPLOYEE IS ENTITLED TO BACK PAY FOR THE PERIOD OF HIS OR HER SEPARATION WHERE THE EMPLOYEE HAS BEEN PREMATURELY RETIRED DUE TO AN ERROR BY THE AGENCY IN COMPUTING THE EMPLOYEE'S LENGTH OF CREDITABLE SERVICE TIME. B-174977(1), MAY 19, 1972; B-174199, DECEMBER 14, 1971.

REGULATIONS IMPLEMENTING THE BACK PAY ACT HAVE BEEN PROMULGATED BY THE CIVIL SERVICE COMMISSION IN 5 C.F.R. PART 550, SUBPART H, AND 5 C.F.R. SEC. 550.804, WHICH DESCRIBE THE CORRECTIVE ACTION WHICH MAY BE TAKEN IN THE CASE OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. IT PROVIDES THAT THE AGENCY "SHALL RECOMPUTE FOR THE PERIOD COVERED BY THE CORRECTIVE ACTION THE PAY, ALLOWANCES, DIFFERENTIALS, AND LEAVE ACCOUNT (LIMITING THE ACCUMULATION TO THE MAXIMUM PRESCRIBED BY LAW OR REGULATION FOR THE EMPLOYEE) OF THE EMPLOYEE AS IF THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED AND THE EMPLOYEE SHALL BE DEEMED FOR ALL PURPOSES TO HAVE RENDERED SERVICE IN THE AGENCY FOR THE PERIOD COVERED BY THE CORRECTION ACTION." 5 C.F.R. SEC. 550.804(A). THE REMAINDER OF SUBSECTION 804(A) AND THE OTHER SUBSECTIONS OF SECTION 804 SET FORTH INSTRUCTIONS AS TO HOW TO RECOMPUTE THE EMPLOYEE'S PAY, ALLOWANCES, DIFFERENTIALS AND LEAVE ACCOUNT DURING THE PERIOD COVERED BY THE CORRECTIVE ACTION.

HOWEVER, NOWHERE IN THE BACK PAY ACT OR IN THE IMPLEMENTING REGULATIONS IS THERE ANY PROVISION FOR THE PAYMENT OF INCIDENTAL EXPENSES INCURRED BY AN EMPLOYEE AS A CONSEQUENCE OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. IT IS CLEAR THAT THE ACT AUTHORIZES ONLY PAYMENT OF AN AMOUNT WHICH THE EMPLOYEE "NORMALLY WOULD HAVE EARNED" IF THE ERRONEOUS PERSONNEL ACTION HAD NOT OCCURRED (LESS ANY AMOUNTS EARNED BY THE EMPLOYEE THROUGH OTHER EMPLOYMENT DURING THE PERIOD). 5 U.S.C. SEC. 5596(B)(1). ALSO, TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES ARE NOT INCLUDED IN THE TERMS "ALLOWANCES" AND "DIFFERENTIALS". CF. 5 U.S.C. SEC. 5584 (SUPP III, 1973), WHEREIN SUCH EXPENSES ARE EXPRESSLY EXCLUDED FROM OVERPAYMENTS OF PAY WHICH MAY BE WAIVED WHEN COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. THEREFORE, WE FIND NO LEGAL BASIS FOR ALLOWING AN ADDITIONAL AMOUNT FOR TRAVEL AND TRANSPORTATION EXPENSES INCURRED BY AN EMPLOYEE INCIDENT TO AN ERRONEOUS SEPARATION. SEE B-179965, JULY 18, 1974.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING THIS CLAIM IS SUSTAINED.