B-187713, JAN 4, 1977

B-187713, JAN 4, 1977

1. DISALLOWANCE OF MEMBER'S CLAIM FOR INCREASED ACTIVE DUTY BASIC PAY AND RETIRED PAY BASED ON LONGEVITY CREDIT HE CLAIMS FOR RESERVE STATUS IN 1954 -1957 IS SUSTAINED SINCE HIS CURRENT ARMY RECORDS DO NOT SHOW HIM IN SUCH A STATUS AND ARMY BOARD OF CORRECTION OF MILITARY RECORDS DECLINED TO CORRECT HIS RECORDS TO SHOW SUCH STATUS. 2. DENIAL OF MEMBER'S REQUEST FOR WAIVER OF RETIRED PAY OVERPAYMENT RESULTING FROM ADMINISTRATIVE ERROR OF CREDIT FOR RESERVE TIME DURING 1954 -1957, IS SUSTAINED PURSUANT TO 10 U.S.C. 2774 (SUPP. II, 1972) SINCE THE MEMBER CANNOT BE CONSIDERED TO BE WITHOUT FAULT SINCE HE HAD BEEN REPEATEDLY ADVISED THAT SUCH PERIOD WAS NOT CREDITABLE FOR PAY PURPOSES AND THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS DECLINED TO CORRECT MEMBER'S RECORD IN THIS REGARD. 3. MEMBER'S CLAIM FOR REIMBURSEMENT FOR THE USE OF A PRIVATELY OWNED VEHICLE WHILE ASSIGNED TO THE NATIONAL GUARD AS A RECRUITER IS DENIED SINCE MEMBER DID NOT HAVE PROPER AUTHORIZATION TO USE SUCH VEHICLE AS REQUIRED IN PARAGRAPHS M5602 AND M4500 OF THE JOINT TRAVEL REGULATIONS AND LOCAL SERVICE REGULATIONS.

SERGEANT FIRST CLASS FRANK T. UMINSKI, USA, RETIRED:

THIS ACTION IS IN RESPONSE TO A LETTER DATED SEPTEMBER 6, 1976, FROM SERGEANT FIRST CLASS FRANK T. UMINSKI, USA, RETIRED, . . . -26-1326, IN EFFECT APPEALING THE SETTLEMENT OF AUGUST 4, 1976, OF OUR CLAIMS DIVISION, WHICH DISALLOWED HIS CLAIMS FOR MILEAGE ALLOWANCE AND LONGEVITY ADJUSTMENT IN RETIRED AND ACTIVE DUTY PAY. ALSO, HE APPEARS TO BE APPEALING THE CLAIMS DIVISION'S OCTOBER 19, 1976 DENIAL OF HIS REQUEST FOR WAIVER OF OVERPAYMENTS OF RETIRED PAY, AND HE PRESENTS A CLAIM FOR PROFICIENCY PAY.

WITH RESPECT TO THE MEMBER'S CLAIM FOR LONGEVITY ADJUSTMENT FOR BASIC PAY AND RETIRED PAY PURPOSES, HE ENLISTED IN THE UNITED STATES ARMY ON APRIL 19, 1951, FOR A 3-YEAR TERM AND WAS DISCHARGED FROM ACTIVE DUTY ON MARCH 26, 1954, UNDER HONORABLE CONDITIONS WITH 2 YEARS, 11 MONTHS AND 8 DAYS CREDITABLE SERVICE, LESS 5 DAYS LOST TIME. HE AGAIN ENLISTED IN THE ARMY ON OCTOBER 11, 1957, AND WAS CREDITED WITH A SERVICE-RELATED STATUS IN THE RESERVES FOR THE INTERIM PERIOD, MARCH 27, 1954, THROUGH OCTOBER 10, 1957. HOWEVER, IN 1962 THE ARMY DETERMINED THAT THE MEMBER HAD NOT BEEN A MEMBER OF THE RESERVES DURING THAT INTERIM PERIOD AND, THEREFORE, HE HAD BEEN ERRONEOUSLY CREDITED WITH AN ADDITIONAL 3 YEARS, 6 MONTHS AND 14 DAYS OF SERVICE FOR BASIC PAY PURPOSES. WHEN ACTION WAS BEGUN TO RECOVER OVERPAYMENTS MADE AS A RESULT OF THE ERRONEOUS SERVICE CREDIT, THE MEMBER INDICATED THAT, IN FACT, HE HAD BEEN CONNECTED WITH A RESERVE UNIT AFTER HIS DISCHARGE IN 1954 AND HE REQUESTED THAT HE BE RECREDITED FOR THE RESERVE TIME.

THE MATTER WAS PRESENTED TO THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS. BY LETTER DATED JUNE 30, 1965, THE ADJUTANT GENERAL OF THE ARMY ADVISED THE MEMBER THAT HIS APPLICATION FOR CORRECTION OF HIS RECORDS WAS DENIED BY THE BOARD BECAUSE INSUFFICIENT EVIDENCE HAD BEEN PRESENTED TO INDICATE PROBABLE MATERIAL ERROR OR INJUSTICE WITH REGARD TO HIS REQUEST FOR LONGEVITY ADJUSTMENT FOR PAY.

IN ACCORDANCE WITH THAT DETERMINATION THE MEMBER APPARENTLY WAS PAID BASIC PAY FOR THE REMAINDER OF HIS ACTIVE SERVICE WITHOUT LONGEVITY CREDIT FOR THE PERIOD OF MARCH 27, 1954, THROUGH OCTOBER 10, 1957. HOWEVER, UPON HIS RETIREMENT IN DECEMBER 1974, AS A RESULT OF ADMINISTRATIVE ERROR HE WAS CREDITED WITH A SERVICE-RELATED STATUS DURING THAT INTERIM PERIOD AND HIS RETIRED PAY WAS ERRONEOUSLY COMPUTED AS IF HE HAD SERVED ON ACTIVE DUTY FOR OVER 23 YEARS, CREATING AN OVERPAYMENT OF $596.94.

THE CLAIMS DIVISION BY ITS OCTOBER 19, 1976 LETTER DENIED WAIVER OF THAT AMOUNT UNDER 10 U.S.C. 2774 (SUPP. II, 1972) SINCE THE MEMBER HAD BEEN ADVISED SEVERAL TIMES THAT THE PERIOD OF SERVICE IN QUESTION WAS NOT CREDITABLE, THE LATEST SUCH ADVICE HAVING BEEN GIVEN TO HIM BY LETTER DATED JANUARY 7, 1975, ONLY ABOUT 1 MONTHS AFTER HIS RETIREMENT. THEREFORE, IT WAS DETERMINED THAT HE COULD NOT BE SAID TO BE WITHOUT FAULT IN THE MATTER.

IN HIS APPEAL LETTER THE MEMBER DOES NOT REFUTE THE CLAIMS DIVISION'S DETERMINATION THAT HE KNEW OR SHOULD HAVE KNOWN THAT HE WAS RECEIVING OVERPAYMENTS OF RETIRED PAY AS A RESULT OF BEING CREDITED WITH SERVICE HE HAD BEEN ADVISED WAS NOT CREDITABLE. INSTEAD, THE MEMBER ASSERTS HIS BELIEF THAT HE IS ENTITLED TO BE CREDITED WITH THE PERIOD IN QUESTION AND CLAIMS INCREASED RETIRED PAY ON THAT BASIS AND RETROACTIVE INCREASED ACTIVE DUTY PAY.

THE CURRENT OFFICIAL RECORDS BEFORE THIS OFFICE SHOW NO CREDITABLE SERVICE FOR THE MEMBER FOR THE PERIOD OF MARCH 27, 1954, THROUGH OCTOBER 10, 1957. IN ADDITION, AS WAS STATED ABOVE, THE CORRECTION BOARD CONSIDERED THE MATTER AND DECLINED TO CORRECT THE MEMBER'S RECORDS TO SHOW CREDITABLE SERVICE FOR THAT PERIOD. ANY ADDITIONAL EVIDENCE OR INFORMATION THE MEMBER MAY HAVE CONCERNING THAT PERIOD SHOULD BE PRESENTED TO THE CORRECTION BOARD FOR CONSIDERATION SINCE THAT BOARD, NOT THIS OFFICE, HAS THE AUTHORITY TO CORRECT MILITARY RECORDS. 10 U.S.C. 1552 (1970). HOWEVER, BASED ON THE PRESENT RECORD, THERE IS NO AUTHORITY FOR THIS OFFICE TO AUTHORIZE PAYMENT OF THE MEMBER'S CLAIMS FOR ADDITIONAL ACTIVE DUTY BASIC PAY OR RETIRED PAY BASED ON THAT PERIOD. ACCORDINGLY, THE DISALLOWANCE OF THOSE CLAIMS IS SUSTAINED.

CONCERNING THE MEMBER'S REQUEST FOR WAIVER OF THE ERRONEOUS PAYMENT OF RETIRED PAY, OUR AUTHORITY TO WAIVE CLAIMS OF THE UNITED STATES ARISING OUT OF THE ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES MADE TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN 10 U.S.C. 2774 WHICH AUTHORIZES WAIVER OF SUCH CLAIMS IF THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE MEMBER, AND IF COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES.

THE MEMBER CANNOT BE CONSIDERED WITHOUT FAULT SINCE HE WAS REPEATEDLY ADVISED THAT THE PERIOD FROM MARCH 27, 1954, THROUGH OCTOBER 10, 1957, WAS NOT CREDITABLE FOR PAY PURPOSES, YET ON HIS REPORT OF SEPARATION FROM ACTIVE DUTY (DD FORM 214) HE WAS SHOWN AS HAVING 23 YEARS, 7 MONTHS AND 10 DAYS SERVICE FOR PAY, WHICH IS OVER 3 YEARS MORE SERVICE THAN HE IS ENTITLED TO. THEREFORE, IT APPEARS THAT HE KNEW OR SHOULD HAVE KNOWN THAT HIS RETIRED PAY WAS BEING COMPUTED ERRONEOUSLY. THUS, HIS APPLICATION FOR WAIVER IS STATUTORILY PRECLUDED FROM FAVORABLE CONSIDERATION AND THE OCTOBER 19, 1976 ACTION OF THE CLAIMS DIVISION DENYING WAIVER IS SUSTAINED.

SERGEANT UMINSKI ALSO CLAIMED $151.80 AS MILEAGE ALLOWANCE FOR THE USE OF A PRIVATELY OWNED VEHILCE (POV) WHILE PERFORMING RECRUITING DUTY, OCTOBER 3, THROUGH NOVEMBER 14, 1974, WITH THE OHIO NATIONAL GUARD. PURSUANT TO 37 U.S.C. 428 (SUPP. I, 1971) A MEMBER WHO IS ASSIGNED TO RECRUITING DUTIES MAY BE REIMBURSED UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, FOR ACTUAL AND NECESSARY EXPENSES IN CONNECTION WITH THOSE DUTIES. REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN PARAGRAPH M5602 OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR) WHICH PROVIDES THAT ADMINISTRATIVE APPROVAL OF REIMBURSEMENT VOUCHERS AT RECRUITING MAIN STATION, DETACHMENT, OR HIGHER LEVEL IS REQUIRED BEFORE REIMBURSEMENT CAN BE ACCOMPLISHED. PURSUANT TO 37 U.S.C. 408 (1970), PARAGRAPHS M4500 AND M4502, 1 JTR, PROVIDE FOR PAYMENT OF A MILEAGE ALLOWANCE FOR THE USE OF A POV WITHIN AND ADJACENT TO A MEMBER'S DUTY STATION WHEN IT IS DETERMINED ADVANTAGEOUS TO THE GOVERNMENT AND IS AUTHORIZED OR APPROVED BY OFFICIALS DESIGNATED BY THE SERVICE CONCERNED. THE MEMBER'S CLAIM WAS DISALLOWED BY THE CLAIMS DIVISION SETTLEMENT OF AUGUST 4, 1976, ON THE BASIS THAT PROPER WRITTEN AUTHORIZATION OR APPROVAL WAS NEVER GIVEN TO THE MEMBER'S USE OF A POV.

THE MEMBER CONTENDS, IN EFFECT, THAT HE WAS ORDERED TO PERFORM RECRUITING DUTIES FOR WHICH HE USED HIS POV AND HE REFERS TO AN OCTOBER 1, 1974 WRITTEN STATEMENT FROM CAPTAIN JAMES C. MADISON OF THE OHIO NATIONAL GUARD. IN THAT STATEMENT CAPTAIN MADISON INDICATES THAT SERGEANT UMINSKI HAD BEEN USING HIS POV IN PERFORMING HIS RECRUITING DUTIES WITH THE NATIONAL GUARD SINCE THE GUARD DID NOT HAVE ENOUGH MILITARY VEHICLES. WHILE THAT STATEMENT SUPPORTS SERGEANT UMINSKI'S STATEMENT THAT HE USED HIS POV FOR RECEUITING PURPOSES, IT DOES NOT PROVIDE THE AUTHORIZATION OR APPROVAL OF THE COMMANDING OFFICER OF THE RECRUITING MAIN STATION REQUIRED BY THE JTR AND LOCAL ARMY REGULATIONS. IN THIS REGARD THAT COMMANDING OFFICER BY MEMORANDUM DATED FEBRUARY 14, 1975, STATED THAT HE WOULD NOT SIGN THE MEMBER'S CLAIM FOR MILEAGE ALLOWANCE BECAUSE THE MEMBER WAS NEVER AUTHORIZED OR DIRECTED TO USE HIS POV IN CONDUCTING HIS RECRUITING DUTIES. WITHOUT SUCH AUTHORIZATION OR APPROVAL PAYMENT OF AMOUNTS CLAIMED BY THE MEMBER CANNOT BE AUTHORIZED AND THE CLAIMS DIVISION'S SETTLEMENT OF AUGUST 4, 1976, DISALLOWING THE CLAIM FOR REIMBURSEMENT FOR USE OF THE POV IS SUSTAINED.

THE MEMBER'S CLAIM FOR PROFICIENCY PAY FOR THE PERIOD OF MAY THROUGH NOVEMBER 1974, IS PRESENTED TO THIS OFFICE OVER HIS SIGNATURE FOR THE FIRST TIME IN HIS SEPTEMBER 6, 1976 LETTER AND HAS NOT BEEN PREVIOUSLY CONSIDERED. SINCE WE HAVE NOT RECEIVED AN ADMINISTRATIVE REPORT FROM THE ARMY ON THAT MATTER, ACTION THEREON WILL BE DEFERRED PENDING DEVELOPMENT. THE MEMBER WILL BE ADVISED IN DUE COURSE.