B-169597, JUL. 14, 1970

B-169597, JUL. 14, 1970

MILITARY -- CORRECTION OF RECORDS -- MILITARY PAY -- WAGES EARNED AS CIVILIAN DECISION TO FINANCE OFFICER, DEPT. OF AIR FORCE AUTHORIZING PARTIAL PAYMENT OF A VOUCHER FOR PAY AND ALLOWANCES TO FORMER SERVICE MEMBER UPON A CORRECTION OF RECORDS ACTION WHICH SHOWED CONTINUED MILITARY SERVICE DURING THE PERIOD WHEN HE EARNED WAGES IN A CIVILIAN CAPACITY, 7-24-64 TO 4-3-67. FORMER SERVICE MEMBER WHO THOUGHT THAT HE HAD BEEN DISCHARGED FOR THE CONVENIENCE OF THE GOVT. AND AT A LATER DATE REENLISTED, RESULTING IN THE DISCOVERY OF AN ERROR IN HIS RECORDS, WHICH SHOWED A CONTINUATION OF MILITARY SERVICE DURING THE SAME PERIOD THAT HE EARNED WAGES IN A CIVILIAN CAPACITY MUST HAVE SUCH EARNINGS OFFSET AGAINST BACK PAY AND ALLOWANCES THAT HE WOULD HAVE ACCRUED IN A MILITARY STATUS, AND ONLY THE REENLISTMENT BONUS, LONGEVITY, PAY AND CLOTHING ALLOWANCE AND PAY PRIOR TO 24 JULY 1964 ARE NOT SUBJECT TO REDUCTION FROM CIVILIAN EARNINGS.

TO MAJOR N. C. ALCOCK:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER (FILE REFERENCE ACF) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER, WITH RESPECT TO VARIOUS ITEMS OF PAY AND ALLOWANCES TOTALING $904.96, IN FAVOR OF TECHNICAL SERGEANT ANICETO MOJICA, AS A RESULT OF A CORRECTION OF HIS RECORDS TO SHOW CONTINUED MILITARY SERVICE DURING THE PERIOD WHEN HE EARNED WAGES IN A CIVILIAN CAPACITY. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF APRIL 17, 1970, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1077 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT THE MATTER IS SUBMITTED HERE BECAUSE OF THE DOUBTFUL PROPRIETY OF PAYMENT OF MILITARY PAY AND ALLOWANCES TO A SERVICE MEMBER WHOSE RECORDS HAVE BEEN CORRECTED TO SHOW CONTINUATION OF MILITARY SERVICE DURING A PERIOD IN WHICH HE EARNED WAGES IN A CIVILIAN CAPACITY.

IN OUR DECISION OF MARCH 10, 1969, B-152421, 48 COMP. GEN. 580, CITED BY YOU, WE SAID THAT SHOULD REGULATIONS BE ISSUED REQUIRING A DEDUCTION OF INTERIM CIVILIAN EARNINGS, WHERE APPROPRIATE, IN CASES AFFECTING SETTLEMENTS OF BACK PAY AND ALLOWANCES FOUND DUE AS A RESULT OF A CORRECTION OF MILITARY RECORDS, WE WOULD APPLY THE REGULATIONS IN THE AUDIT OF DISBURSING OFFICER'S ACCOUNTS AND IN THE SETTLEMENT OF CLAIMS WHICH COME BEFORE US IN SUCH CASES.

THE RECORD SHOWS THAT PURSUANT TO 10 U.S.C. 1552 THE ENLISTED MAN'S RECORDS WERE CORRECTED AS SET FORTH IN MEMORANDUM DATED MARCH 27, 1969, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE TO THE CHIEF OF STAFF DIRECTING THAT:

"1. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO ANICETO MOJICA, AF 25979973, BE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT ON 23 JULY 1964, BUT THAT HE CONTINUED ON ACTIVE MILITARY SERVICE AND WAS DISCHARGED UPON EXPIRATION OF TERM OF SERVICE ON 3 APRIL 1967.

"2. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO ANICETO MOJICA, AF 25979973, BE CORRECTED TO SHOW THAT THE PERIOD FROM 18 FEBRUARY 1964 TO 12 MARCH 1964 (24 DAYS) WAS NOT TIME LOST AND THAT ALL REFERENCE THERETO BE DELETED FROM HIS RECORDS.

"3. THE PERTINENT MILITARY RECORDS OF THE DEPARTMENT OF THE AIR FORCE, RELATING TO ANICETO MOJICA, AF 25979973, BE CORRECTED TO SHOW THAT HIS DATE OF RANK (DOR) IN THE GRADE OF STAFF SERGEANT IS 1 JUNE 1962."

YOU STATE THAT AS A RESULT OF THE CORRECTION ACTION THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES IN THE NET AMOUNT OF $17,997.06 COMPUTED AS FOLLOWS:

"RETROACTIVE PAY AND ALLOWANCES, 24 JULY 1964 - 3 APRIL 1967 $16,060.81

"REFUND, REENL BONUS RECOUPED INCIDENT TO DISCH, 23 JULY 1964

429.29

REFUND, 24 DAYS PAY AND ALLOWANCE (LOST TIME, 18 FEBRUARY - 12 MARCH 1964):

BASE PAY $229.17

BASIC ALLOWANCE FOR SUBSISTENCE 25.20

BASIC ALLOWANCE FOR QUARTERS 87.50

CLOTHING MAINTENANCE ALLOWANCE 5.00 $ 346.87

"REENLISTMENT BONUS, 4 APRIL 1967 400.60

ACCRUED LEAVE CREDITS (60 DAYS), DISCH 3 APRIL 1967 774.60

SEPARATION TRAVEL, DISCH 3 APRIL 1967 82.08

LONGEVITY ADJUSTMENT, BASE PAY, 4 APRIL 1967 - 14 MARCH 1968 69.84

CLOTHING ALLOWANCE ADJUSTMENT, 4 APRIL 1967 - 26 MARCH 1969

87.65

TOTAL $18,251.74

"REDUCED BY:

CREDITS PAID INCIDENT TO DISCH 23 JULY 1964 (ACCRUED LEAVE PLUS TRAVEL) $ 215.48

SOLDIER'S HOME DEDUCTIONS, 1 AUGUST 1964 - 31 MARCH 1967

3.20

SGLI (INSURANCE) DEDUCTIONS, 1 OCTOBER 1965 - 31 MARCH 1967

36.00

TOTAL $ 254.68"

IT APPEARS THAT DURING THE PERIOD JULY 24, 1964, TO APRIL 3, 1967, SERGEANT MOJICA WAS EMPLOYED AS A CIVILIAN EMPLOYEE BY THE PACOIMA MEMORIAL LUTHERAN HOSPITAL, INC., AND THE VICTORY MEDICAL GROUP, AND THAT DURING THAT PERIOD HE EARNED A TOTAL OF $18,276.91. YOU SAY THAT WHILE CIVILIAN EARNINGS ARE REQUIRED TO BE DEDUCTED FROM THE BACK PAY AND ALLOWANCES, THE QUESTION ARISES WHETHER CERTAIN ITEMS OF ENTITLEMENT, AS SHOWN ON THE VOUCHER, SHOULD BE INCLUDED IN THE TOTAL AMOUNT OF PAY AND ALLOWANCES AGAINST WHICH THE DEDUCTION OF CIVILIAN EARNINGS IS TO BE APPLIED.

IT IS WELL ESTABLISHED THAT UPON A CORRECTION OF THE RECORDS, PURSUANT TO 10 U.S.C. 1552, A SERVICEMAN'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY AND ALLOWANCES BASED UPON AN APPLICATION OF THE PAY STATUTES IN EFFECT DURING THE PERIOD INVOLVED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORD. SEE 45 COMP. GEN. 47, 48 (1965) AND CASES THERE CITED.

THE VOUCHER IS STATED IN THE GROSS AMOUNT OF $919.31 AND REPRESENTS VARIOUS ITEMS OF PAY AND ALLOWANCES FOR THE PERIODS THERE SPECIFIED AS SHOWN BELOW, PLUS A FICA CONTRIBUTION OF $14.35. SINCE UNDER THE RECORD AS CORRECTED THE ITEMS OF PAY AND ALLOWANCES IN THE AMOUNT OF $346.87 FOUND DUE FOR THE PERIOD FEBRUARY 18, 1964, TO MARCH 12, 1964, ARE PRIOR TO THE PERIOD DURING WHICH THE CIVILIAN EARNINGS ACCRUED (JULY 24, 1964, TO APRIL 3, 1967), WE CONCUR WITH YOUR VIEW THAT THOSE ITEMS NEED NOT BE INCLUDED IN THE TOTAL PAY AND ALLOWANCE ENTITLEMENTS SUBJECT TO REDUCTION BY THE CIVILIAN EARNINGS.

THE REENLISTMENT BONUS OF $400.60 INCIDENT TO THE MEMBER'S REENLISTMENT OF APRIL 4, 1967, IS NOT REQUIRED TO BE INCLUDED IN THE TOTAL PAY AND ALLOWANCE ENTITLEMENTS AGAINST WHICH THE CIVILIAN EARNINGS MAY BE OFFSET, SINCE THE BONUS IS PAID IN ANTICIPATION OF ACTIVE SERVICE FROM APRIL 4, 1967, UNTIL THE EXPIRATION DATE OF HIS THEN TERM OF ENLISTMENT OR EXTENSION THEREOF. WHILE IT APPEARS THAT THE CORRECTION ACTION GAVE RISE TO A RIGHT TO THE REENLISTMENT BONUS, THE PERIOD OF SERVICE FOR WHICH THE BONUS WAS PAID IS SUBSEQUENT TO THAT COVERED BY THE CIVILIAN EARNINGS.

AS SHOWN ON THE VOUCHER, THE PAY LONGEVITY ADJUSTMENT OF $69.84 FOR THE PERIOD APRIL 4, 1967, TO MARCH 14, 1968, AND THE CLOTHING MAINTENANCE ALLOWANCE ADJUSTMENT OF $87.65 FOR THE PERIOD APRIL 4, 1967, TO MARCH 26, 1969, COVER PERIODS SUBSEQUENT TO THE PERIOD STATED IN THE CORRECTION OF RECORDS. UNDER THE RECORD AS CORRECTED, THE ENLISTED MAN IS CONSIDERED TO HAVE BEEN IN AN ACTIVE DUTY STATUS FROM JULY 24, 1964, TO APRIL 3, 1967. AS A RESULT OF THAT CORRECTION, THIS PERIOD OF TIME IS CREDITABLE SERVICE FOR LONGEVITY PAY PURPOSES. HENCE, IN COMPUTING BASIC PAY ON AND AFTER APRIL 4, 1967, THIS PERIOD OF TIME (JULY 24, 1964, TO APRIL 3, 1967), IS PROPERLY CREDITABLE AS MILITARY SERVICE. FOR THE SAME REASON, THIS PERIOD OF TIME IS ALSO TO BE CREDITED IN DETERMINING ENTITLEMENT TO A CLOTHING MAINTENANCE ALLOWANCE. THE AMOUNTS INVOLVED, $69.84 AND $87.65, ARE NOT SUBJECT TO REDUCTION BECAUSE OF CIVILIAN EARNINGS.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED THEREON, IF OTHERWISE CORRECT.