B-202365-OM, JAN 24, 1983

B-202365-OM: Jan 24, 1983

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AFMD - CLAIMS GROUP (ROOM 5858): RETURNED IS Z-2826691 FOR ISSUANCE OF A NEW SETTLEMENT CERTIFICATE AUTHORIZING THE U. THIS MEMORANDUM IS A CLARIFICATION OF AND A SUPPLEMENT TO OUR MEMORANDUM IN THIS CASE OF NOVEMBER 5. IT IS BASED ON NEW INFORMATION PROVIDED BY THE U. WAS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AS A RESERVE OFFICER DUE TO HIS FAILURE TO BE PROMOTED. HE WAS RECALLED TO ACTIVE DUTY ON MAY 24. THE MEMBER WAS ENTITLED TO BACKPAY. SINCE THE TOTAL OF HIS BACKPAY AND ALLOWANCES WAS LESS THAN ALLOWABLE OFFSETS. S. ARMY FINANCE AND ACCOUNTING CENTER SUBMITTED FOR DETERMINATION TO THE CLAIMS GROUP WHETHER COLONEL GROFF WAS ENTITLED TO RECEIVE THE ADDITIONAL PAY AND ALLOWANCES DUE TO HIS BEING PROMOTED TO THE GRADE OF LIEUTENANT COLONEL.

B-202365-OM, JAN 24, 1983

SUBJECT: PAYMENT OF PAY AND ALLOWANCES DUE TO RETROACTIVE PROMOTION, LIEUTENANT COLONEL EDWARD E. GROFF - B-202365-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS Z-2826691 FOR ISSUANCE OF A NEW SETTLEMENT CERTIFICATE AUTHORIZING THE U. S. ARMY FINANCE AND ACCOUNTING CENTER TO PAY THE CLAIMANT THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A MAJOR AND A LIEUTENANT COLONEL FOR THE PERIOD OF MAY 24, 1976, TO JANUARY 26, 1978. THIS MEMORANDUM IS A CLARIFICATION OF AND A SUPPLEMENT TO OUR MEMORANDUM IN THIS CASE OF NOVEMBER 5, 1981. IT IS BASED ON NEW INFORMATION PROVIDED BY THE U. S. ARMY FINANCE AND ACCOUNTING CENTER.

ON MAY 20, 1974, COLONEL GROFF, THEN A MAJOR, WAS INVOLUNTARILY RELEASED FROM ACTIVE DUTY AS A RESERVE OFFICER DUE TO HIS FAILURE TO BE PROMOTED. HE WAS RECALLED TO ACTIVE DUTY ON MAY 24, 1976, AS A RESULT OF ACTION BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. A DIRECTIVE LATER ISSUED BY THE BOARD VOIDED HIS SEPARATION OF MAY 20, 1974, AND CORRECTED HIS RECORDS TO SHOW CONTINUOUS ACTIVE DUTY FROM MAY 20, 1974, UNTIL HIS ACTUAL RECALL ON MAY 24, 1976.

BASED ON THE VOIDING OF HIS SEPARATION, THE MEMBER WAS ENTITLED TO BACKPAY, INCLUDING ALLOWANCES, AS A MAJOR FROM MAY 21, 1974, THE DAY FOLLOWING HIS WRONGFUL DISCHARGE, UNTIL MAY 23, 1976, THE DAY PRIOR TO HIS RECALL TO ACTIVE DUTY. SINCE THE TOTAL OF HIS BACKPAY AND ALLOWANCES WAS LESS THAN ALLOWABLE OFFSETS, INCLUDING CIVILIAN EARNINGS, COLONEL GROFF RECEIVED NO ADDITIONAL SETTLEMENT.

ON JANUARY 27, 1978, THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS CORRECTED COLONEL GROFF'S RECORD TO SHOW THAT HE HAD BEEN PROMOTED TO THE GRADE OF LIEUTENANT COLONEL EFFECTIVE AUGUST 1, 1974. THIS RETROACTIVE PROMOTION INCLUDED PART OF THE PERIOD OF CONSTRUCTIVE ACTIVE DUTY UNDER THE PREVIOUS CORRECTION ACTION.

BECAUSE OF THIS SECOND CORRECTION THE U. S. ARMY FINANCE AND ACCOUNTING CENTER SUBMITTED FOR DETERMINATION TO THE CLAIMS GROUP WHETHER COLONEL GROFF WAS ENTITLED TO RECEIVE THE ADDITIONAL PAY AND ALLOWANCES DUE TO HIS BEING PROMOTED TO THE GRADE OF LIEUTENANT COLONEL.

BASED ON OUR INSTRUCTION IN B-202365, NOVEMBER 5, 1981, A SETTLEMENT WAS ISSUED DENYING THE MEMBER ANY BACKPAY AND ALLOWANCES FOR HIS PERIOD OF CONSTRUCTIVE ACTIVE DUTY, MAY 21, 1974, THROUGH MAY 23, 1976. THIS SETTLEMENT WAS CORRECT; HOWEVER, APPARENTLY BECAUSE OF THE MEMBER'S RESTORATION TO ACTIVE DUTY AND SUBSEQUENT RETROACTIVE PROMOTION TO LIEUTENANT COLONEL SOME CONFUSION HAS ARISEN.

THE QUESTION WHICH NOW HAS ARISEN IS WHETHER COLONEL GROFF IS ENTITLED TO THE ADDITIONAL PAY AS A LIEUTENANT COLONEL FROM THE DATE OF HIS RESTORATION TO ACTIVE DUTY, MAY 24, 1976, UNTIL JANUARY 26, 1978, THE DAY BEFORE THE CORRECTION OF RECORDS, UNDER WHICH HE WAS RETROACTIVELY PROMOTED. THE U. S. ARMY FINANCE AND ACCOUNTING CENTER DENIED HIM FURTHER BACKPAY AND ALLOWANCES FOR THIS PERIOD BECAUSE THE OFFSETS, INCLUDING CIVILIAN EARNINGS, FROM HIS BACKPAY AWARD STILL EXCEEDED ANY ADDITIONAL AMOUNTS TO WHICH HE BECAME ENTITLED. WE FIND THAT COLONEL GROFF IS ENTITLED TO RECEIVE THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN MAJOR AND LIEUTENANT COLONEL FOR THE PERIOD AFTER HIS RESTORATION TO ACTIVE DUTY.

THE MEMBER WAS ENTITLED TO $48,708.41 IN PAY AND ALLOWANCES FOR HIS PERIOD OF CONSTRUCTIVE ACTIVE DUTY, MAY 21, 1974, THROUGH MAY 23, 1976, BUT HE HAD NO RECOVERY BECAUSE THE APPROPRIATE OFFSETS EXCEEDED HIS PAY AND ALLOWANCES.

COMPUTATION OF COLONEL GROFF'S BACKPAY ENTITLEMENT INVOLVED SETTING OFF OF AN ACCRUED LEAVE SETTLEMENT OF $3,312.96 AND READJUSTMENT PAY OF $15,000. ALSO INACTIVE AND ACTIVE RESERVE PAY OF $4,148.27 WAS OFFSET AS WELL AS $78.20 FOR INSURANCE PREMIUMS. THESE AMOUNTS TOTAL $22,539.43, WHICH MUST BE DEDUCTED FROM THE $48,708.41, DUE, LEAVING A BALANCE OF $26,168.98. ANY CIVILIAN EARNINGS DURING THE PERIOD OF ERRONEOUS SEPARATION MUST BE DEDUCTED FROM THAT REMAINING BALANCE. 56 COMP.GEN. 587, 591 (1977). CIVILIAN EARNINGS ARE NOT AN AMOUNT A MEMBER MUST PAY BACK TO THE GOVERNMENT, BUT ARE DEDUCTED BECAUSE OF THE GENERAL PRINCIPLE THAT THE MEMBER HAS A DUTY TO MITIGATE THE GOVERNMENT'S MONETARY OBLIGATION IN THESE SITUATIONS. B-202365-O.M., NOVEMBER 5, 1981, AND CITATIONS THEREIN. THUS, CIVILIAN EARNINGS ARE DEDUCTED BUT ONLY TO THE EXTENT THAT THE CIVILIAN EARNINGS DO NOT EXCEED THE AMOUNT DUE. CIVILIAN EARNINGS EXCEED THE AMOUNT DUE, NO INDEBTEDNESS IS CREATED. B-195129, APRIL 28, 1980. THUS, SINCE HE HAD OVER $38,000 IN CIVILIAN EARNINGS DURING HIS PERIOD OF WRONGFUL SEPARATION, HE HAD NO BACKPAY ENTITLEMENT BUT NO DEBT WAS CREATED.

WHEN THE MEMBER WAS RETROACTIVELY PROMOTED BY ACTION OF JANUARY 27, 1978, THE ADDITIONAL BACKPAY HE SHOULD HAVE RECEIVED FOR THE PERIOD OF HIS ERRONEOUS SEPARATION WAS PROPERLY VIEWED AS AN ADJUSTMENT IN THE BACKPAY SETTLEMENT RESULTING FROM HIS ERRONEOUS SEPARATION. HOWEVER, FOR HIS PERIOD OF ACTIVE DUTY FROM MAY 24, 1976, TO JANUARY 26, 1978, HE IS ENTITLED TO RECEIVE THE ADDITIONAL PAY AND ALLOWANCES WHICH RESULTED FROM HIS PROMOTION TO LIEUTENANT COLONEL BECAUSE THIS ADDITIONAL BACKPAY MAY NOT BE USED IN COMPUTING HIS BACKPAY ENTITLEMENT FOR THE PERIOD OF ERRONEOUS SEPARATION.

ACCORDINGLY, IF OTHERWISE CORRECT, SETTLEMENT SHOULD ISSUE AUTHORIZING COLONEL GROFF THE ADDITIONAL PAY AND ALLOWANCES OF $4,382.51 ACCRUING BY VIRTUE OF HIS PROMOTION TO LIEUTENANT COLONEL.