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B-152215, SEP. 9, 1963, 43 COMP. GEN. 235

B-152215 Sep 09, 1963
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WHOSE NAVAL RECORDS ARE CORRECTED TO SHOW CONTINUATION ON ACTIVE DUTY UNTIL JUNE 30. THE SEVERANCE PAY WAS FOR ADJUSTMENT IN HIS ACCOUNT. THE BALANCE REMAINING AFTER APPLICATION OF THE TWO-THIRDS RETIRED PAY WITHHELD UNDER 5 U.S.C. 46D IS FOR REFUND. 1963: REFERENCE IS MADE TO YOUR LETTER DATED JULY 23. IT APPEARS THAT COMMANDER ROBINSON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVY ON JUNE 30. THAT UPON HIS DISCHARGE HE WAS PAID SEVERANCE PAY IN THE AMOUNT OF $17. HE WAS EMPLOYED BY VARIOUS FEDERAL AGENCIES AND THAT HE RECEIVED COMPENSATION IN THE FOLLOWING AMOUNTS: DEPARTMENT OF THE ARMY. COMMANDER ROBINSON'S NAVAL RECORDS WERE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED WITH SEVERANCE PAY ON JUNE 30.

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B-152215, SEP. 9, 1963, 43 COMP. GEN. 235

MILITARY PERSONNEL - RECORD CORRECTION - SEVERANCE PAY AND CIVILIAN EMPLOYMENT EFFECT A NAVAL OFFICER WITH MORE THAN 17 YEARS OF SERVICE, HONORABLY DISCHARGED ON JUNE 30, 1958, WITH SEVERANCE PAY, AND THEREAFTER ACCEPTING FEDERAL CIVILIAN EMPLOYMENT, WHOSE NAVAL RECORDS ARE CORRECTED TO SHOW CONTINUATION ON ACTIVE DUTY UNTIL JUNE 30, 1960, AND TRANSFER ON JULY 1, 1960 TO THE RETIRED LIST PRIOR TO COMPLETION OF 20 YEARS' COMMISSIONED SERVICE MAY NOT RETAIN THE SEVERANCE PAY AND CIVILIAN EARNINGS RECEIVED, THE OFFICER HAVING BEEN CREDITED WITH ACTIVE DUTY PAY FROM JULY 1, 1958, THROUGH JUNE 30, 1960, AND PLACED IN A RETIRED PAY STATUS ON JULY 1, 1960, IN ACCORDANCE WITH THE CORRECTED RECORD, THE SEVERANCE PAY WAS FOR ADJUSTMENT IN HIS ACCOUNT, AND HIS RETIRED PAY RATE EXCEEDING $2,500 PER YEAR HAVING CAUSED HIS CIVILIAN EMPLOYMENT TO COME WITHIN THE PROHIBITION OF THE DUAL EMPLOYMENT ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, THE TOTAL COMPENSATION PAYMENTS BECAME AN INDEBTEDNESS, AND THE BALANCE REMAINING AFTER APPLICATION OF THE TWO-THIRDS RETIRED PAY WITHHELD UNDER 5 U.S.C. 46D IS FOR REFUND.

TO PENROSE LUCAS ALBRIGHT, SEPTEMBER 9, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 23, 1963, IN BEHALF OF COMMANDER JAMES B. ROBINSON, USN, RETIRED, IN EFFECT REQUESTING REVIEW OF THE MATTER OF COMMANDER ROBINSON'S INDEBTEDNESS TO THE UNITED STATES.

IT APPEARS THAT COMMANDER ROBINSON WAS HONORABLY DISCHARGED FROM THE UNITED STATES NAVY ON JUNE 30, 1958, HAVING SERVED MORE THAN 17 YEARS; THAT UPON HIS DISCHARGE HE WAS PAID SEVERANCE PAY IN THE AMOUNT OF $17,280; THAT DURING THE PERIOD FROM JULY 1, 1958, THROUGH MARCH 29, 1963, HE WAS EMPLOYED BY VARIOUS FEDERAL AGENCIES AND THAT HE RECEIVED COMPENSATION IN THE FOLLOWING AMOUNTS: DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, JULY 1, 1958, TO FEBRUARY 23, 1959, $4,923.20; TREASURY DEPARTMENT, UNITED STATES COAST GUARD, FEBRUARY 24, 1959, TO DECEMBER 26, 1959, $7,428.48; PUBLIC HOUSING ADMINISTRATION, HOUSING AND HOME FINANCE AGENCY, DECEMBER 27, 1959, TO MARCH 29, 1963, $31,960.80. IT FURTHER APPEARS THAT BY ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, APPROVED BY THE SECRETARY OF THE NAVY ON MARCH 28, 1963, COMMANDER ROBINSON'S NAVAL RECORDS WERE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED WITH SEVERANCE PAY ON JUNE 30, 1958; THAT HE CONTINUED ON ACTIVE DUTY UNTIL JUNE 30, 1960; THAT PRIOR TO THE COMPLETION OF 20 YEARS OF TOTAL COMMISSIONED SERVICE, HE WAS CONSIDERED BY A BOARD CONVENED TO RECOMMEND OFFICERS IN HIS CATEGORY FOR CONTINUATION ON THE ACTIVE LIST OF THE REGULAR NAVY; THAT HE WAS NOT RECOMMENDED FOR CONTINUATION AND, FURTHER, WAS REPORTED AS AN OFFICER WHOSE PERFORMANCE OF DUTY WOULD NOT WARRANT RETENTION ON THE ACTIVE LIST UNDER ANY CIRCUMSTANCES. THE CORRECTION BOARD FURTHER RECOMMENDED THAT PAYMENT OF ALL AMOUNTS DUE BE PAID, LESS SEVERANCE PAY.

PURSUANT TO THE CORRECTED RECORDS, COMMANDER ROBINSON WAS CREDITED WITH ACTIVE DUTY PAY AS AN OFFICER OF THE REGULAR NAVY FROM JULY 1, 1958 TO JUNE 30, 1960, AND RETIRED PAY FROM JULY 1, 1960. SINCE THE RECORDS NOW SHOW THAT HE WAS NOT DISCHARGED ON JUNE 30, 1958, THERE WAS REQUIRED TO BE DEBITED THE AMOUNT OF SEVERANCE PAY PREVIOUSLY PAID, AND SINCE HE WAS ON ACTIVE DUTY FOR THE PERIOD JULY 1, 1958, THROUGH JUNE 30, 1960, AND IN A RETIRED PAY STATUS THEREAFTER DURING WHICH TIME PAY ACCRUED TO HIM AT A RATE IN EXCESS OF $2,500 PER YEAR, HIS EMPLOYMENT FOR THE PERIOD JULY 1, 1958, THROUGH MARCH 29, 1963, WAS CONSIDERED WITHIN THE PROHIBITION OF THE DUAL EMPLOYMENT STATUTE OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62. HENCE, THERE WAS ALSO DEBITED THE TOTAL CIVILIAN EARNINGS FOR THE MENTIONED PERIOD, $44,312.48. TWO-THIRDS OF HIS RETIRED PAY HAS BEEN WITHHELD AND APPLIED TO REDUCE HIS INDEBTEDNESS, PURSUANT TO THE ACT OF JULY 15, 1954, CH. 509, 68 STAT. 482, 5 U.S.C. 46D.

YOU APPARENTLY CONCEDE THAT THE 1894 STATUTE IS APPLICABLE TO COMMANDER ROBINSON'S FEDERAL CIVILIAN EMPLOYMENT SUBSEQUENT TO THE CORRECTION BOARD ACTION, BUT URGE THAT CORRECTION BOARD ACTION CANNOT PLACE A PERSON IN A STATUS WHERE A PRIOR LEGAL ACT BECOMES AN ILLEGAL ONE. YOU FURTHER CONTEND THAT APPROVED ACTION OF A CORRECTION BOARD CANNOT RETROACTIVELY CHANGE A PERSON'S STATUS BUT CAN ONLY GIVE RISE TO A CLAIM, AND PAYMENTS BASED UPON SUCH CLAIM. YOU INVITE ATTENTION TO THE CASE OF ROBINSON V. FRANKE, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. 2204-59, DECIDED AUGUST 18, 1960, AND ITS ATTENDANT APPEALS, WHICH YOU STATE ESTABLISHED COMMANDER ROBINSON'S DE JURE STATUS AS A CIVIL EMPLOYEE.

THE ACT OF JULY 31, 1894, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED THERETO BY LAW * * *.

THE RELEVANCY OF THE CITATION TO THE CASE OF ROBINSON V. FRANKE IS NOT APPARENT SINCE THAT CASE WAS CONCERNED WITH MATTERS NOT IN ISSUE HERE AND TRANSPIRED PRIOR TO HIS APPLICATION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS. WE ARE NOT IN DISAGREEMENT WITH YOUR VIEW AS TO COMMANDER ROBINSON'S PAY STATUS PRIOR TO THE CORRECTION OF HIS NAVAL RECORDS. HAD BEEN HONORABLY DISCHARGED FROM THE NAVY AND WAS A CIVIL EMPLOYEE OF THE FEDERAL GOVERNMENT. HOWEVER, THE CORRECTED NAVAL RECORDS, AS THEY EXIST NOW, SHOW THAT HE CONTINUED ON ACTIVE DUTY FROM JULY 1, 1958, THROUGH JUNE 30, 1960, AND THAT HE WAS TRANSFERRED TO THE RETIRED LIST FOR YEARS OF SERVICE ON JULY 1, 1960. THIS CIRCUMSTANCE, IRRESPECTIVE OF THE CORRECTION BOARD'S RECOMMENDATION REGARDING PAY, INVESTED IN HIM CERTAIN STATUTORY PAY BENEFITS, AND CONCOMITANTLY IMPOSED UPON HIM CERTAIN STATUTORY RESTRICTIONS AND LIABILITIES, FROM THE EFFECTIVE DATES MENTIONED IN THE CORRECTION, RATHER THAN FROM THE DATE OF THE APPROVAL OF THE ACTION BY THE SECRETARY OF THE NAVY. SEE 34 COMP. GEN. 7 AND 40 COMP. GEN. 502.

OF PARTICULAR PERTINENCY TO THE PRESENT MATTER, YOUR ATTENTION IS INVITED TO THE CASE OF SEASTROM V. UNITED STATES, 147 CT.CL. 453 (1959). IN THAT CASE, THE COURT STATED, WITH REFERENCE TO THE APPLICATION OF LAWS IMPOSING LIABILITIES ON RETIRED MEMBERS, UPON CORRECTION OF NAVAL RECORDS:

IN THIS RESPECT IT IS TRUE THAT AT THE TIME PLAINTIFF WAS ENGAGED IN THE "SELLING" ACTIVITIES, HERETOFORE NOTED, HE MAY NOT HAVE BEEN A RETIRED OFFICER. HOWEVER, IT WAS BY PLAINTIFF'S OWN APPLICATION FOR THE CORRECTION OF HIS RECORDS THAT HE BECAME ENTITLED RETROACTIVELY TO THE BENEFITS OF A RETIRED STATUS. WHEN PLAINTIFF'S RECORDS WERE CORRECTED, HE BECAME ENTITLED AS A RETIRED OFFICER ONLY TO RETIRED PAY FOR PERIODS FOR WHICH HE WAS ELIGIBLE UNDER THE LAW. THE STATUTE HERE INVOLVED PROHIBITED PAYMENT OF RETIRED PAY TO A RETIRED OFFICER WHO WAS ENGAGED IN SALES ACTIVITIES. * * * IT FOLLOWS THAT HE NEVER HAD A RIGHT TO SUCH RETIRED PAY AND THE MERE FACT THAT THE RETIRED PAY WAS RETROACTIVE WOULD NOT RELIEVE THE DEFENDANT OF THE DUTY TO IMPOSE UPON PLAINTIFF THE RESTRICTIONS OF THE SALES ACT.

IN SUMMARY, IT IS THE CONCLUSION OF THE COURT THAT PLAINTIFF IS A RETIRED OFFICER WHO ENGAGED IN A FORM OF SELLING TO THE NAVY. HIS RETIRED PAY WAS SUBJECT TO ALL STATUTORY LIMITATIONS ON PAYMENT AND HE IS NOT ENTITLED TO RETAIN THE RETIRED PAY PAID HIM FOR THE PERIOD FROM FEBRUARY 1955 THROUGH AUGUST 1956, WHEN HE WAS ENGAGED IN A FORM OF SELLING TO THE NAVY.

BY VIRTUE OF THE CORRECTION BOARD ACTION, COMMANDER ROBINSON MUST BE REGARDED AS AN OFFICER WHOSE ACTIVE DUTY STATUS CONTINUED UNTIL JUNE 30, 1960, AND WHO, BECAUSE OF HIS SUBSEQUENT RETIREMENT AS AN OFFICER OF THE REGULAR NAVY, RECEIVED SEVERANCE PAY NOT PAYABLE IN SUCH CIRCUMSTANCES. THE SAME CIRCUMSTANCES BROUGHT HIS CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT WITHIN THE PROHIBITION OF THE 1894 STATUTE. IT FOLLOWS THAT THE AMOUNTS PAID IN CONNECTION WITH SUCH EMPLOYMENT MUST NOW BE VIEWED AS PAYMENTS WHICH MUST BE REFUNDED.

IN GENERAL ACCOUNTING OFFICE CLAIMS DIVISION LETTER DATED JULY 22, 1963, YOU WERE ADVISED THAT, UPON RECEIPT OF ANY FUNDS THAT MAY HAVE BEEN WITHHELD FROM COMMANDER ROBINSON BY THE SEVERAL ADMINISTRATIVE OFFICES, HIS ACCOUNT WOULD BE AUDITED AND HE WOULD BE ADVISED OF THE OUTSTANDING INDEBTEDNESS BALANCE.

THE ACTION OF THE CLAIMS DIVISION, UPON REVIEW, IS SUSTAINED.

YOU MAY BE ADVISED THAT WE ARE IN RECEIPT OF A CHECK IN THE AMOUNT OF $1,025 FROM THE PUBLIC HOUSING ADMINISTRATION, COVERING 240 HOURS OF ANNUAL LEAVE WHICH COMMANDER ROBINSON HAD TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THAT AGENCY, AS WELL AS $7.50 BOND BALANCE. THE CHECK WILL BE CANCELED, SINCE IT REPRESENTS MONEYS TO WHICH COMMANDER ROBINSON IS NOT ENTITLED.

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