Request for Reconsideration of Claim Disallowance

B-196688: Feb 15, 1980

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A retired Army member requested reconsideration of a Claims Division settlement which disallowed his claim for additional amounts due as the result of action taken by the Army Board for Correction of Military Records. As a result of the discovery of irregularities in the claimant's treatment by promotion boards, the claimant received a retroactive promotion and nullification of an involuntary separation from extended active duty and was recalled to active duty in 1977. At that time he was credited with active duty military pay and allowances in the grade to which he was retroactively promoted for the period of his invalid separation from active service. However, these credits were subject to setoff by debits which included the amount of interim earnings received by the claimant while he was a civilian employee of the Federal Government. The claimant objected to the setoff of the interim earnings he received as a civilian employee during the period of his separation and also claimed that he was entitled to compensation which included earnings he might have received from an additional civilian job he held at the time of his separation. Army regulations specifically require that earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted from settlements of this nature. Both GAO and the courts have supported the principle that awardees of settlements of this nature have a duty to mitigate the Government's monetary obligations. With regard to the claim for compensation for amounts the claimant might have received from a part-time civilian job he held in addition to his active duty, it was held that there is no authorization either in law or in military regulations to pay claims brought by a member for compensatory and consequential damages for the loss of part-time civilian employment opportunities premised on wrongful acts of Government agents. Accordingly, the settlement of the Claims Division was sustained.