B-95910, NOVEMBER 20, 1950, 30 COMP. GEN. 195

B-95910, NOVEMBER 20, 1950, 30 COMP. GEN. 195

RETIREMENT - NAVY OFFICER CONTINUING ON ACTIVE DUTY AFTER EFFECTIVE DATE OF RETIREMENT - DE FACTO STATUS AS AFFECTING PAY AND ALLOWANCES WHILE THE RETIREMENT OF A NAVY OFFICER PLACED ON THE RETIRED LIST VOLUNTARILY FOR LENGTH OF SERVICE PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, IS EFFECTIVE ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE, AN OFFICER WHO DID NOT RECEIVE NOTICE OF SUCH RETIREMENT UNTIL AFTER THE EFFECTIVE DATE THEREOF AND WHO CURRENTLY WAS PAID ACTIVE-DUTY PAY AND ALLOWANCES MAY BE REGARDED AS HAVING BEEN IN DE FACTO STATUS AND ENTITLED TO RETAIN SUCH PAY AND ALLOWANCES OR RECOVER BACK ANY AMOUNTS WHICH MAY HAVE BEEN REFUNDED LESS ANY RETIRED PAY RECEIVED.

ASSISTANT COMPTROLLER GENERAL YATES TO RAYMOND B. DRINAN, NOVEMBER 20, 1950:

REFERENCE IS MADE TO LETTER OF MAY 11, 1950, WRITTEN IN YOUR BEHALF BY GEOFFREY CREYKE, JR., ATTORNEY AT LAW, 444 WASHINGTON BUILDING, WASHINGTON 5, D.C., WITH ENCLOSURES, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MAY 1, 1950, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE-DUTY PAY AND ALLOWANCES AS CAPTAIN, UNITED STATES NAVY, FOR THE PERIOD DECEMBER 1, 1946, TO APRIL 28, 1947.

IT APPEARS THAT ON MAY 21, 1946, YOU REQUESTED VOLUNTARY RETIREMENT AFTER 20 YEARS' SERVICE, RETIREMENT TO BE EFFECTIVE "AT AS EARLY A DATE AS POSSIBLE.' ORDERS DATED JULY 26, 1946, NAVY DEPARTMENT, BUREAU OF NAVAL PERSONNEL, WASHINGTON, D.C., ADDRESSED TO YOU VIA THE COMMANDANT, ELEVENTH NAVAL DISTRICT, ADVISED YOU, INTER ALIA, THAT YOUR REQUEST FOR RETIREMENT WOULD BE FORWARDED TO THE PRESIDENT OF THE UNITED STATES RECOMMENDING THAT IT BE APPROVED AND THAT:

YOU WILL REGARD YOURSELF RELIEVED OF ALL ACTIVE DUTY IN THE U.S. NAVY ON 1 DECEMBER 1946. A LETTER FROM THE SECRETARY OF THE NAVY FORMALLY PLACING YOU ON THE RETIRED LIST AS OF THAT DATE WILL BE FORWARDED TO YOU SHORTLY THEREAFTER.

FIRST ENDORSEMENT ON SUCH ORDERS INDICATES THAT THE ORDERS WERE FORWARDED TO THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, AT WHICH PLACE THERE WAS ADDED SECOND ENDORSEMENT DATED AUGUST 8, 1946, SHOWING THAT YOU WERE ADMITTED THERE AS A PATIENT ON JULY 24, 1946. THE THIRD ENDORSEMENT DATED APRIL 22, 1947, READS IN PERTINENT PART AS FOLLOWS:

1. YOU WERE DISCHARGED TO THREE MONTHS SICK LEAVE ON 22 OCT 1946, AND RETURNED ON 22 JANUARY 1947 FOR FURTHER TREATMENT AND A REPORT OF MEDICAL SURVEY, IN ACCORDANCE WITH REFERENCE (B) (ORDERS DATED SEPTEMBER 24, 1946, INFRA).

3. * * * YOU WILL CONSIDER YOURSELF RELEASED FROM ALL ACTIVE DUTY IN THE U.S. NAVY ON 1 DECEMBER 1946. A LETTER FROM THE SECRETARY OF THE NAVY FORMALLY PLACING YOU ON THE RETIRED LIST AS OF THAT DATE WILL BE FORWARDED TO YOU SHORTLY THEREAFTER.

BY LETTER ORDERS DATED SEPTEMBER 24, 1946, YOU WERE GRANTED A SICK LEAVE OF ABSENCE FROM THE U.S. NAVAL HOSPITAL, SAN DIEGO, FOR A PERIOD OF THREE MONTHS, AT THE EXPIRATION OF WHICH YOU WERE DIRECTED TO REPORT TO THE MEDICAL OFFICER IN COMMAND OF THE SAID HOSPITAL FOR FURTHER TREATMENT, FOR PHYSICAL EXAMINATION TO DETERMINE YOUR FITNESS FOR DUTY, AND FOR A REPORT BY A BOARD OF MEDICAL SURVEY. ALSO, IT APPEARS THAT BY LETTER DATED AUGUST 6, 1946, ADDRESSED TO YOU VIA THE COMMANDANT, ELEVENTH NAVAL DISTRICT, YOU WERE ADVISED THAT YOUR REQUEST FOR RETIREMENT WAS BEING FORWARDED TO THE PRESIDENT RECOMMENDING THAT IT BE APPROVED DURING THE MONTH OF NOVEMBER IN ORDER THAT YOUR RETIREMENT MIGHT BE EFFECTED ON DECEMBER 1, 1946.

THE DATE OF RECEIPT BY YOU OF THE ORDERS OF JULY 26, 1946, RELIEVING U OF ACTIVE DUTY ON DECEMBER 1, 1946, IS NOT SHOWN BY THE RECORD OR THE ENDORSEMENTS ON THE SAID ORDERS. HOWEVER, IN AN AFFIDAVIT DATED MAY 11, 1950, YOU AVER THAT YOU DID NOT RECEIVE NOTICE FROM ANY SOURCE OF YOUR RETIREMENT ON DECEMBER 1, 1946, UNTIL ABOUT APRIL 26, 1947, AT WHICH TIME YOU RECEIVED A LETTER FROM THE BUREAU OF NAVAL PERSONNEL DATED APRIL 8, 1947, STATING THAT YOU HAD BEEN TRANSFERRED TO THE INACTIVE (RETIRED) LIST AS OF DECEMBER 1, 1946. YOU FURTHER STATE THAT THROUGHOUT THE MONTHS OF DECEMBER 1946, JANUARY, FEBRUARY, MARCH, AND APRIL, 1947, ALL DUTY WAS PERFORMED IN THE BELIEF THAT YOU WERE PROPERLY ACTING UNDER ORDERS RECEIVED BY YOU FROM THE BUREAU OF NAVAL PERSONNEL ON OCTOBER 22, 1946, AND DATED SEPTEMBER 24, 1946, AND THAT IT WAS YOUR BELIEF THAT SUCH ORDERS WERE VALID AND SUPERSEDED ALL OTHER ORDERS. IT APPEARS THAT YOU WERE CREDITED ACTIVE-DUTY PAY AND ALLOWANCES AFTER DECEMBER 1, 1946, BUT THAT THE AMOUNTS RECEIVED BY YOU IN EXCESS OF YOUR RETIRED PAY FOR THE PERIOD BEGINNING DECEMBER 1, 1946, HAVE BEEN WITHHELD FROM YOUR RETIRED PAY.

THE RECORD SHOWS THAT YOU WERE RETIRED PURSUANT TO THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 26, PUBLIC LAW 305, SECTION 6 OF WHICH, 60 STAT. 27, PROVIDES:

WHEN ANY OFFICER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS OR THE RESERVE COMPONENTS THEREOF HAS COMPLETED MORE THAN TWENTY YEARS OF ACTIVE SERVICE IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR THE RESERVE COMPONENTS THEREOF, INCLUDING ACTIVE DUTY FOR TRAINING, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN ACTIVE COMMISSIONED SERVICE, HE MAY AT ANY TIME THEREAFTER, UPON HIS OWN APPLICATION, IN THE DISCRETION OF THE PRESIDENT, BE PLACED UPON THE RETIRED LIST ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.

IT WILL BE SEEN THAT UNDER THE EXPRESS PROVISIONS OF THAT SECTION THE RETIREMENT OF AN OFFICER PLACED ON THE RETIRED LIST PURSUANT THERETO IS EFFECTIVE "ON THE FIRST DAY OF SUCH MONTH AS THE PRESIDENT MAY DESIGNATE.' NO EXCEPTION IS MADE IN THE CASE OF AN OFFICER WHO DOES NOT RECEIVE NOTICE OF HIS RETIREMENT.

YOUR CLAIM FOR ACTIVE-DUTY PAY FOR THE PERIOD DECEMBER 1, 1946, TO APRIL 28, 1947, WAS DISALLOWED FOR THE STATED REASONS THAT:

THE RETIREMENT OF AN OFFICER EFFECTS A COMPLETE SEVERANCE FROM ACTIVE SERVICE AND HIS RIGHTS, BENEFITS, AND PRIVILEGES AS AN OFFICER ON THE ACTIVE LIST TERMINATE UPON THE EFFECTIVE DATE OF HIS RETIREMENT. 24 COMP. GEN. 291. IT HAS BEEN HELD THAT AN ORDER OF THE PRESIDENT PLACING AN OFFICER OF THE NAVY ON THE RETIRED LIST, CHANGES THE STATUS OF SUCH OFFICER WHEREVER HE MAY BE AND WHATEVER DUTY HE MAY BE PERFORMING. IN THE ABSENCE OF ORDERS PRIOR TO RETIREMENT DEFINITELY ASSIGNING AN OFFICER TO DUTY AFTER RETIREMENT, OR ORDERS ISSUED SUBSEQUENTLY TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY, HIS ACTIVE DUTY PAY CEASES ON THE DATE IN WHICH HE WAS ORDERED TO BE PLACED ON THE RETIRED LIST. 17 COMP. DEC. 533; 18 ID. 747; TERRY V. UNITED STATES, 81 C.1CLS. 958; AND HOLLAND V. UNITED STATES, 83 C.1CLS. 376. THE TIME SPENT BY AN OFFICER SUBSEQUENT TO HIS RETIREMENT, FOR THE PURPOSE OF UNDERGOING TREATMENT AT A HOSPITAL PURSUANT TO ORDERS PREVIOUSLY ISSUED FOR THAT PURPOSE, CANNOT BE CONSIDERED AS SERVICE PERFORMED ON ACTIVE DUTY. HOLLAND V. UNITED STATES, SUPRA. THE ORDERS OF JULY 26, 1946 DO NOT APPEAR TO HAVE CONTEMPLATED THAT YOU BE KEPT ON ACTIVE DUTY FOLLOWING YOUR RETIREMENT AND EVEN THOUGH YOU DID REMAIN IN THE HOSPITAL SUBSEQUENT THERETO, IT DOES NOT APPEAR THAT YOU WERE IN AN ACTIVE DUTY STATUS SO AS TO BE ENTITLED TO ACTIVE DUTY PAY AFTER NOVEMBER 30, 1946.

IN HOLLAND V. UNITED STATES, 83 C.1CLS. 376, THE PRESIDENT APPROVED HOLLAND'S RETIREMENT FROM THE NAVY UNDER AUTHORITY OF SECTION 1453, REVISED STATUTES, ON JULY 21, 1926, ON WHICH DATE HE COMPLETED 29 YEARS, 11 MONTHS, AND 18 DAYS OF ACTIVE SERVICE. NOTICE THEREOF WAS NOT RECEIVED BY HIM UNTIL AUGUST 21, 1926. IN HOLDING THAT THE RETIREMENT BECAME EFFECTIVE ON JULY 20, 1926, AND THAT HOLLAND WAS NOT ENTITLED TO COUNT ANY SERVICE AFTER THAT DATE AS ACTIVE SERVICE FOR LONGEVITY TO INCREASE HIS RETIRED PAY, THE COURT SAID:

* * * IN VIEW OF THE POSITIVE PROVISIONS OF THAT SECTION THAT AN OFFICER SHALL BE RETIRED FROM ACTIVE SERVICE WHEN THE PRESIDENT APPROVES THE DECISION OF THE RETIRING BOARD, WE SEE NO ESCAPE FROM THE CONCLUSION THAT THE OFFICER WAS IN FACT RETIRED FROM ACTIVE SERVICE ON THE DATE OF THE PRESIDENT'S ORDER. THE TIME SUBSEQUENTLY SPENT UNDERGOING TREATMENT AT THE HOSPITAL PURSUANT TO ORDERS PREVIOUSLY ISSUED FOR THAT PURPOSE CANNOT BE CONSIDERED AS SERVICE PERFORMED ON THE ACTIVE LIST AND CANNOT BE COUNTED FOR LONGEVITY PURPOSES TO INCREASE THE RETIRED PAY. IN TERRY V. UNITED STATES, NO. 28148, DECIDED MARCH 30, 1908 (81 C.1CLS. 958, THIS COURT SAID:

"* * * AN ORDER OF THE PRESIDENT PLACING AN OFFICER OF THE NAVY UPON THE RETIRED LIST * * * CHANGES THE STATUS OF SUCH OFFICER WHEREVER HE MAY BE AND WHATEVER DUTY HE MAY BE PERFORMING; AND THEREAFTER HE IS ENTITLED TO RETIRED PAY ONLY, UNLESS SUCH STATUS IS CHANGED BY SOME SUBSEQUENT ORDER OF THE SECRETARY OF THE NAVY. * * * IT MAY BE THAT THE SECRETARY OF THE NAVY MIGHT ISSUE A PRELIMINARY ORDER IN TERMS ASSIGNING AN OFFICER TO DUTY AFTER RETIREMENT, BUT SUCH ORDER SHOULD BE CERTAIN IN ITS TERMS AND NOT GIVEN THAT EFFECT BY STRAINED CONSTRUCTION.'

PLAINTIFF WAS IN A RETIRED STATUS ON AND AFTER JULY 20, 1926, WHEN THE PRESIDENT APPROVED THE DECISION OF THE RETIRING BOARD AND ORDERED THE PLAINTIFF PLACED ON THE RETIRED LIST. NO ORDERS OF ANY KIND WERE SUBSEQUENTLY ISSUED GIVING PLAINTIFF AN ACTIVE-DUTY STATUS AFTER RETIREMENT. THIS COURT IS NOT AT LIBERTY TO CHANGE THE RECORD. ROGERS V. UNITED STATES, 59 C.1CLS. 464. IT HAS BEEN UNIFORMLY HELD THAT IN THE ABSENCE OF ORDERS PRIOR TO RETIREMENT DEFINITELY ASSIGNING AN OFFICER TO DUTY AFTER RETIREMENT, OR ORDERS ISSUED SUBSEQUENT TO RETIREMENT FOR PERFORMANCE OF ACTIVE DUTY, AN OFFICER'S ACTIVE-DUTY PAY CEASES ON THE DATE ON WHICH HE WAS ORDERED TO BE PLACED ON THE RETIRED LIST. 17 COMP. DEC. 533, 536; 18 COMP. DEC. 747, 750; 32 ATTY. GEN. OP. 176, 178.

THERE HAS NOT BEEN BROUGHT TO ATTENTION ANY AUTHORITATIVE PRECEDENT WHICH WOULD BE A PROPER BASIS FOR HOLDING THAT YOUR TRANSFER TO THE RETIRED LIST DID NOT BECOME EFFECTIVE ON DECEMBER 1, 1946. HOWEVER, AS INDICATED ABOVE, IT APPEARS THAT YOU DID NOT RECEIVE NOTICE OF YOUR RETIREMENT ,UNTIL APPROXIMATELY 26 APRIL 1947.' ALSO, IT APPEARS THAT YOU CURRENTLY WERE PAID ACTIVE-DUTY PAY AND ALLOWANCES THROUGH APRIL 1, 1947, THE LAST PAYMENT OF SUCH PAY AND ALLOWANCES HAVING BEEN MADE TO YOU BY CHECK NO. 14,819, DATED APRIL 1, 1947, DRAWN BY O. R. GARRETT, SUPPLY CORPS, USN. IN SUCH CIRCUMSTANCES, THERE IS FOR APPLICATION THE RULE THAT A PERSON WHO CAN ESTABLISH THAT HE RECEIVED PAY AND ALLOWANCES IN A DE FACTO STATUS MAY RETAIN SUCH PAY AND ALLOWANCES, AND WHERE IT HAS BEEN REFUNDED TO THE GOVERNMENT HE IS ENTITLED TO RECOVER IT BACK. SEE UNITED STATES V. ROGER, 268 U.S. 394; CF. 5 COMP. GEN. 71; 6 ID. 71; ID. 263. ACCORDINGLY, AFTER VERIFICATION OF THE AMOUNT DEDUCTED FROM YOUR RETIRED PAY ON ACCOUNT OF ACTIVE-DUTY PAY AND ALLOWANCES RECEIVED FOR THE PERIOD DECEMBER 1, 1946, TO APRIL 1, 1947, A SETTLEMENT WILL BE STATED IN YOUR FAVOR FOR SUCH AMOUNT LESS THE AMOUNT OF RETIRED PAY, IF ANY, RECEIVED BY YOU FOR THE PERIOD PRIOR TO APRIL 2, 1947.