[Claims Settlements of Members Returned to Active Duty]

A decision was requested as to whether, in cases where Army members are restored to active duty as the result of proceedings before the Army Board for Correction of Military Records, active duty backpay claim settlements should be based on the date of the Board's determination or the date on which the member actually returns to duty. An Army officer's records were corrected to expunge an improper separation from duty; however, the Board did not pay the officer backpay from the time the officer was improperly separated until the time of the Board's action because his civilian earnings exceeded his backpay entitlement. The officer did not return to active duty until 6 months after the Board's decision. Then a voucher was prepared in the officer's favor which represented active duty backpay and allowances for a 6-month period of constructive active duty during which the officer's actual return to active duty was pending. This action was based on the premise that the officer's backpay claim accrued on the date of the Board's action. GAO concluded that, when Army members are restored to active duty as the result of proceedings before the Board, active duty backpay claims settlements should be predicated on the date of the member's actual return to duty rather than the earlier date of the Board's determination. Therefore, payment made for backpay from the date of the Board's action was erroneous and the officer is liable to make restitution in the full amount. However, he is eligible to apply for a waiver of the claim if collection action would not be in the best interests of the United States and there is no indication of fault on the part of the officer.