B-239275, Feb 19, 1991

B-239275, Feb 19, 1991

MILITARY PERSONNEL - Leaves Of Absence - Annual leave - Lump-sum payments MILITARY PERSONNEL - Pay - Retroactive pay - Deductions - Lump-sum payments - Annual leave DIGEST: 1. When an Army Reserve officer is erroneously separated from active duty but then retroactively restored to active duty status through a correction of his military records, he must repay any readjustment pay and lump sum payments for annual leave he received incident to the voided separation. Later, if he is properly separated from active duty, he is entitled to pay and allowances for the additional period of active duty and readjustment pay and lump sum leave payment to which he may have become entitled in connection with the valid separation. MILITARY PERSONNEL - Pay - Insurance premiums - Debt collection 2. Collection of premiums for Servicemen's Group Life Insurance is required during a period of constructive active service between an erroneous separation from active duty and a proper separation. Any decision concerning whether collection of these premiums should be waived in these circumstances must be addressed to the Secretary of Veterans Affairs since this Office has no jurisdiction to decide such matters.

Major Terrence W. Alligood, USAR:

Major Terrence W. Alligood, United States Army Reserve, claims readjustment payments due to involuntary separation from the Army in 1977, without reduction to recover such payments from an earlier, erroneous separation in 1975. Likewise, he disputes other aspects of the Army's settlement of his pay account resulting from the nullification of this 1975 separation, namely recoupment of 1975 payments for accumulated leave and collection of Servicemen's Group Life Insurance (SGLI) premiums from 1975 until his proper separation in 1977. Additionally, he states that he now has more than 18 years of active service and, therefore, is protected from separation by the "sanctuary" provision in 10 U.S.C. Sec. 1163(d) which would allow him to remain on active duty for 2 years to qualify for regular retirement.

The member's claims may not be allowed.

BACKGROUND

On November 16, 1975, Major Alligood, then a captain, was separated from the Army after twice being passed over for promotion to the rank of major, Army of the United States (AUS). His separation and those of other Reserve officers, however, were set aside, since the Secretary of the Army determined that the selection boards were improperly constituted. New selection boards were convened to consider Reserve members not selected for promotion by the 1974 and 1975 selection boards. Major Alligood was considered by two of these new boards (reviewing the 1974 and the 1975 selection board decisions), but he was not selected by either board for promotion to major, AUS. After his separation from active service, Major Alligood was promoted to the rank of major in the United States Army Reserve, and by 1983 he had completed sufficient Reserve service to qualify for non-regular retirement under 10 U.S.C. Sec. 1331 et seq.

Meanwhile, on November 10, 1981, Major Alligood filed suit in the U.S. Claims Court, alleging that the decisions of the selection boards were arbitrary and capricious. On January 21, 1983, at Major Alligood's request, proceedings were suspended to allow consideration by the Army Board for Correction of Military Records (ABCMR). On March 6, 1985, the ABCMR found that Major Alligood's records should be corrected to reflect discharge on February 28, 1977, instead of November 16, 1975, so that his treatment was consistent with that accorded to other Reserve officers who were improperly passed over in 1974 and 1975. His request for relief was otherwise rejected. The ABCMR's recommendation was approved on March 20, 1985, and the ABCMR's action was upheld in the Claims Court in 1987. /1/

The member's records were corrected to show that he had served on active duty through February 28, 1977, 1 year, 3 months and 13 days of active service in addition to the 16 years, 3 months, and 26 days that he had served through November 16, 1975. Additionally, in 1981, Major Alligood served on active duty for training for 182 days. If this period of active duty constitutes "active duty" for purposes of 10 U.S.C. Sec. 1163(d), otherwise known as the "sanctuary" provision, Major Alligood would have served over 18 years of active service and should have been permitted to remain on active duty until he became eligible for regular retired pay.

ANALYSIS AND CONCLUSION

As a result of our decisions in similar cases, certain fundamental principles have evolved with regard to the accounting for pay and entitlements once a military record is corrected to nullify an involuntary separation and show continuation on active duty. Thus, Army members involuntarily separated from but later retroactively restored to active duty by administrative record correction action under 10 U.S.C. Sec. 1552 become entitled to retroactive payment of military pay and allowances they would have received had they remained on active duty. The records are corrected to show that they were not separated at an earlier date and as a result any payments received in connection with the earlier separation are considered erroneous and must be repaid by the member. See 56 Comp.Gen. 587, 589-590 (1977) and 57 Comp.Gen. 554, 556 (1978).

While Major Alligood recognizes the invalidity of his 1975 separation, he does not agree that the payments he received as a result of that separation were erroneous. Consequently, he appears to claim full entitlement to readjustment pay as a result of his 1977 separation without returning the erroneous readjustment pay he received in 1975.

Major Alligood is entitled to readjustment pay under 10 U.S.C. Sec. 687 (1976) as a result of his separation from active duty in 1977, /2/ but such payments must be offset by any readjustment payments not repaid from his invalidated separation in 1975. See Department of Defense Military Pay and Allowances Entitlements Manual, para. 40411 40415 and Tables 4-4-6 through 4-4-8 (1967, as amended by Change 47, Jan. 24, 1977).

Likewise Major Alligood states that the lump sum leave payment he received in 1975 is correct, but he also seeks additional leave that accrued between the invalid and valid separation.

Payments to Major Alligood for unused accrued leave upon separation from active duty in 1975 were made under 37 U.S.C. 501(a)(1)(B) (1970). In 56 Comp.Gen. at 590, we held that when a correction of records expunges a separation and the member is considered to have remained on active duty it renders these payments improper, and any amounts received must be repaid. Members affected are entitled to be recredited for the days of unused leave for which payments were made, up to a maximum of 60 days. Major Alligood is entitled to be paid for unused leave in connection with his 1977 separation.

In 57 Comp.Gen. supra at 561, we considered the equities of recouping leave payments after invalidating a separation, while still applying the 60-day limit on leave carry-over imposed by 10 U.S.C. Sec. 701(b). such situations, a member may be forced to forfeit leave because recredited leave, along with the leave accruing during the period of constructive active duty which the member cannot use, often exceeds 60 days. We affirmed that leave payments from improper separations are erroneous and must be recouped. However, we said that a member may request waiver under 10 U.S.C. Sec. 2774 to the extent that leave is actually lost due to the 60-day statutory carry-over limit.

Major Alligood also questions the propriety of collecting SGLI premiums for the period between November 16, 1975 and February 28, 1977. We have held that when a member's records are corrected to show that he remains on active duty during a particular period of time, the correction includes receipt of SGLI and the member becomes liable for payment of the premiums on the coverage as a part of his active duty pay and allowances. Any decision concerning whether collection of the insurance premiums should be waived under the circumstances is to be made by the Secretary of Veterans Affairs under 38 U.S.C. Sec. 785. This Office has no jurisdiction to decide such issues. See Sergeant First Class James L. Dunlap, U.S. Army, Retired, B-224946, Sep. 25, 1987.

Major Alligood claims that he is entitled to be retained on active duty until he is eligible for a regular retirement. He bases this claim on the fact that in 1981 he performed a period of active duty for training which when added to his other active duty brings him within the provisions of 10 U.S.C. Sec. 1163(d). That provision provides that a member of a reserve component who is on active duty and is within 2 years of becoming eligible for retired pay may not be released from active duty until he becomes eligible for retired pay. This Office has no jurisdiction over such matters. In any event, the United States Court of Appeals for the Federal Circuit recently decided that the phrase "on active duty" in 10 U.S.C. 1163(d) does not include active duty for training or any variant thereof. Wilson v. United States, 917 F.2d 529, 536 (Fed. Cir. 1990). Accordingly, it does not appear that Major Alligood's active duty tour in 1981 would qualify as "active duty" under 10 U.S.C. Sec. 1163(d).

The United States Army Finance and Accounting Center should settle Major Alligood's account in accordance with the foregoing.

/1/ See Alligood v. United States, 14 Cl.Ct. 11 (1987). The record also indicates that Major Alligood requested reconsideration of the ABCMR's decision based on his suggestion that he was protected from separation starting in 1981 by the "sanctuary" provision in 10 U.S.C. Sec. 1163(d). The ABCMR denied reconsideration on July 2, 1986, and it does not appear that Major Alligood actively advanced this denial as an error when he sought review of the ABCMR's decision.

/2/ This section was repealed by Pub.L. No. 96-513, Title I, 109(a), 94 Stat. 2835, 2870 (1980).