B-170112, SEP 15, 1970, 50 COMP GEN 180

B-170112, SEP 15, 1970, 50 COMP GEN 180

MILITARY PERSONNEL - RECORD CORRECTION - PAYMENT BASIS - INTERIM CIVILIAN EARNINGS IN THE COMPUTATION OF THE ACTIVE DUTY PAY AND ALLOWANCES DUE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES INCIDENT TO THE CORRECTION OF HIS MILITARY RECORDS UNDER 10 U.S.C. 1552 TO SHOW THAT HIS DISCHARGE WAS NULL AND VOID AND THAT HE HAS REMAINED ON ACTIVE DUTY UNTIL VOLUNTARILY RETIRED UNDER 10 U.S.C. 8914, THE DEDUCTION OF INTERIM CIVILIAN EARNINGS IS REQUIRED, NOTWITHSTANDING THE MEMBER RETIRED EARLIER THAN REQUIRED BY THE DECISION OF THE COURT IN 419 F. 2D 714. MOREOVER, THE FACT THAT THE CORRECTION BOARD'S RECOMMENDATION AGAINST OFFSETTING INTERIM EARNINGS WAS ADMINISTRATIVELY APPROVED IS WITHOUT EFFECT AS THERE IS NO DISCRETIONARY POWER TO MAKE DETERMINATIONS OF SPECIFIC AMOUNTS TO BE PAID PURSUANT TO A MILITARY RECORDS CORRECTION SINCE PAYMENT DEPENDS SOLELY UPON A PROPER APPLICATION OF STATUTES AND REGULATIONS TO THE FACTS SHOWN IN A CORRECTED RECORD. MILITARY PERSONNEL - RECORD CORRECTION - PAYMENT BASIS - UNEMPLOYMENT COMPENSATION THE PAYMENT FOR A PERIOD OF ACTIVE DUTY INCIDENT TO THE CORRECTION OF THE MILITARY RECORDS OF A MEMBER OF THE UNIFORMED SERVICES IS NOT SUBJECT TO A DEDUCTION FOR THE UNEMPLOYMENT COMPENSATION RECEIVED BY THE MEMBER DURING THE PERIOD BETWEEN PREMATURE DISCHARGE FROM DUTY AND RETIREMENT, AS THE RULE IN 35 COMP. GEN. 241 TO THE EFFECT UNEMPLOYMENT COMPENSATION IS NOT DEDUCTIBLE FROM THE BACK PAY OF A CIVILIAN EMPLOYEE RESTORED TO DUTY BECAUSE OF DIRECT REFUND BY THE EMPLOYEE IS FOR APPLICATION. THEREFORE, SINCE THE UNEMPLOYMENT COMPENSATION RECEIVED BY THE MEMBER DOES NOT COME WITHIN THE PURVIEW OF "INTERIM CIVILIAN EARNINGS" FOR THE PURPOSE OF THE ADMINISTRATIVE DIRECTIVE THAT SUCH EARNINGS ARE DEDUCTIBLE IN CORRECTION BOARD CASES, THE AMOUNT OF UNEMPLOYMENT COMPENSATION DEDUCTED FROM THE PAY ADJUSTMENT MADE TO THE MEMBER IS FOR REFUND TO HIM.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, SEPTEMBER 15, 1970:

YOUR LETTER DATED JUNE 4, 1970, FILE REFERENCE MPECA, WITH ENCLOSURES, FORWARDED HERE BY LETTER DATED JUNE 22, 1970, HEADQUARTERS UNITED STATES AIR FORCE, REQUESTS AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT TO STAFF SERGEANT GEORGE J. GEIGER, XXX-XX-XXXX, OF $2,423.63 REPRESENTING INTERIM CIVILIAN EARNINGS AND UNEMPLOYMENT COMPENSATION WITHHELD FROM A PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES MADE TO HIM INCIDENT TO THE CORRECTION OF HIS MILITARY RECORDS. YOUR REQUEST WAS APPROVED AND ASSIGNED AIR FORCE REQUEST NO. DO-AF-1083 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT GEIGER WAS DISCHARGED FROM THE AIR FORCE ON AUGUST 7, 1963, UNDER THE PROVISIONS OF AIR FORCE REGULATION 39-14, AT WHICH TIME HE HAD ACTIVE SERVICE TOTALING 19 YEARS, 2 MONTHS, AND 3 DAYS. QUESTIONED THE VALIDITY OF SUCH DISCHARGE BY A SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, BUT THE CASE WAS DISMISSED ON THE GOVERNMENT'S CROSS-MOTION FOR SUMMARY JUDGMENT.

ON JULY 22, 1969, THE UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT, RULING ON AN APPEAL FILED BY SERGEANT GEIGER (GEIGER V. BROWN, 419 F. 2D 714) CONCLUDED THAT HIS DISCHARGE FROM THE AIR FORCE "WAS UNAVAILING TO EFFECT HIS SEPARATION FROM THAT SERVICE PRIOR TO EXPIRATION OF HIS THEN CURRENT TERM OF ENLISTMENT" AND, IN REVERSING THE JUDGMENT OF THE LOWER COURT, IT REMANDED THE CASE FOR FURTHER PROCEEDINGS CONSISTENT WITH ITS HOLDING. IN ACCORDANCE THEREWITH, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BY AN ORDER ON MANDATE, DATED NOVEMBER 6, 1969, VACATED ITS PRIOR JUDGMENT AND DECLARED SERGEANT GEIGER'S DISCHARGE ON AUGUST 7, 1963, NULL AND VOID.

ON NOVEMBER 6, 1969, SERGEANT GEIGER APPLIED TO THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS FOR THE CORRECTION OF HIS MILITARY RECORDS TO SHOW THAT HE WAS NOT DISCHARGED ON AUGUST 7, 1963, BUT REMAINED ON ACTIVE DUTY UNTIL ELIGIBLE FOR RETIREMENT FOR YEARS OF SERVICE AND THEN RETIRED. HIS ATTORNEY REPRESENTED TO THE CORRECTION BOARD THAT IN CONSIDERATION OF THERE BEING NO OFFSETS FOR INTERIM CIVILIAN EARNINGS AGAINST THE ACTIVE DUTY PAY DUE SERGEANT GEIGER AS A RESULT OF THE CORRECTION OF THE MILITARY RECORDS IT WAS DESIRED THAT SUCH RECORDS SHOW SERGEANT GEIGER WAS NOT DISCHARGED BUT THAT HE WAS RETIRED AT THE EARLIEST POSSIBLE DATE, I.E., 20 YEARS' SERVICE, AND THAT THEREAFTER HE BE DEEMED TO BE IN A RETIRED STATUS. THE LITIGATION DIVISION OF THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE AIR FORCE, CONCURRED WITH THIS REPRESENTATION AND RECOMMENDED THAT NO OFFSETS FOR INTERIM CIVILIAN EARNINGS BE MADE AGAINST THE ACTIVE DUTY PAY WHICH WOULD BE DUE SERGEANT GEIGER.

ON JANUARY 28, 1970, THE CORRECTION BOARD AFTER CONSIDERATION OF THE UNAPPEALED ORDER ON MANDATE OF THE UNITED STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA, THE REPRESENTATIONS OF COUNSEL, AND THE FACTS AS SHOWN IN THE OFFICIAL RECORD, RECOMMENDED THAT SERGEANT GEIGER'S MILITARY RECORDS BE CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED FROM THE UNITED STATES AIR FORCE ON AUGUST 7, 1963, BUT CONTINUED ON ACTIVE DUTY UNTIL JUNE 30, 1964, WHEN HE WAS RELEASED FROM ACTIVE DUTY AND VOLUNTARILY RETIRED EFFECTIVE JULY 1, 1964, UNDER THE PROVISIONS OF 10 U.S.C. 8914. THE BOARD FURTHER RECOMMENDED THAT IN THE COMPUTATION OF ANY AMOUNTS FOUND DUE AS A RESULT OF THIS CORRECTION OF MILITARY RECORDS, DEDUCTION WOULD NOT BE MADE FOR INTERIM CIVILIAN EARNINGS, IF ANY, FOR THE PERIOD COMMENCING AUGUST 7, 1963, TO JUNE 30, 1964. BY MEMORANDUM DATED FEBRUARY 6, 1970, TO THE CHIEF OF STAFF, UNITED STATES AIR FORCE, THE ASSISTANT SECRETARY OF THE AIR FORCE, MANPOWER AND RESERVE AFFAIRS, DIRECTED THAT ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE BOARD.

IT APPEARS THAT IN DETERMINING THE AMOUNT DUE SERGEANT GEIGER AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS CONSIDERATION WAS GIVEN TO OUR DECISION DATED APRIL 2, 1970, 49 COMP. GEN. 656. IN THAT DECISION WE CONCLUDED THAT IN VIEW OF A MEMORANDUM DATED MARCH 12, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE TO THE SECRETARIES OF THE MILITARY DEPARTMENTS DIRECTING THAT APPROPRIATE ACTION BE TAKEN TO REQUIRE THE DEDUCTION OF INTERIM CIVILIAN EARNINGS IN CORRECTION BOARD CASES SUCH AS THIS, A STIPULATION BY THE OFFICERS THERE INVOLVED AS TO THE PAYMENT THEY WERE TO RECEIVE BY REASON OF THE CORRECTION OF THEIR RECORDS, OR ANY DETERMINATION BY THE CORRECTION BOARD AS TO THE BASIS ON WHICH THEIR MONEY CLAIMS WOULD BE SETTLED, WAS WITHOUT EFFECT TO PREVENT THE OFFSET OF INTERIM CIVILIAN EARNINGS.

YOU SAY THAT BECAUSE OF DOUBT RAISED BY THIS DECISION, AN AMOUNT EQUIVALENT TO SERGEANT GEIGER'S THEN REPORTED INTERIM CIVILIAN EARNINGS PLUS UNEMPLOYMENT COMPENSATION AGGREGATING $2,423.63, RECEIVED BY HIM DURING THE PERIOD OF EXTENDED ACTIVE DUTY, WAS WITHHELD FROM THE RETROACTIVE RETIRED PAY THEN STILL UNPAID TO HIM. ALSO, YOU SAY THAT LATER DOCUMENTATION ESTABLISHES THAT THE AMOUNT OF OFFSET, IF APPLICABLE, SHOULD BE $2,129.63 INSTEAD OF $2,423.63, SINCE THE UNEMPLOYMENT COMPENSATION RECEIVED BY SERGEANT GEIGER WAS $798 RATHER THAN $1,092 AS ORIGINALLY REPORTED.

YOU SUGGEST THAT THE FACTUAL SITUATION IN THIS CASE IS DIFFERENT FROM THAT CONSIDERED IN THE DECISION OF APRIL 2, 1970, AND COULD SUPPORT A "NO OFF-SET" PROVISION IN THAT THE AGREEMENT WHICH THE CORRECTION BOARD WAS SEEKING TO PUT INTO EFFECT WAS BASED ON A RELINQUISHMENT BY SERGEANT GEIGER OF THE RIGHT, AS ESTABLISHED BY THE UNITED STATES COURT OF APPEALS, TO BE CONSIDERED AS BEING ON ACTIVE DUTY TO THE DATE OF EXPIRATION OF HIS THEN CURRENT TERM OF ENLISTMENT. IN THIS CONNECTION, YOU SAY THAT SERGEANT GEIGER IN EFFECT RELINQUISHED THIS RIGHT UNDER THE COURT ORDER TO REMAIN ON ACTIVE DUTY UNTIL NOVEMBER 6, 1964, THE END OF HIS CURRENT PERIOD OF ENLISTMENT. YOU POINT OUT THAT IF THIS EARLIER SEPARATION FROM ACTIVE DUTY HAD NOT BEEN AGREED TO, SERGEANT GEIGER WOULD HAVE BEEN ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES THROUGH NOVEMBER 6, 1964, ASSUMING THAT WOULD HAVE BEEN THE DATE OF SEPARATION.

THE STATUTORY AUTHORITY FOR THE PAYMENT BY A DEPARTMENT CONCERNED OF ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS IF FOUND TO BE DUE ON A CLAIM PRESENTED BY A MEMBER WHOSE MILITARY OR NAVAL RECORDS ARE CORRECTED IS CONTAINED IN 10 U.S.C. 1552(C). MEMORANDUM DATED MARCH 12, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE TO THE ASSISTANT SECRETARIES OF THE MILITARY DEPARTMENTS (FINANCIAL MANAGEMENT) REQUIRES THE DEDUCTION OF INTERIM CIVILIAN EARNINGS RECEIVED FROM CIVILIAN EMPLOYMENT IN EFFECTING SETTLEMENT OF BACK PAY AND ALLOWANCES FOUND DUE A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES BY REASON OF THE CORRECTION OF HIS MILITARY OR NAVAL RECORDS IN CERTAIN CASES PURSUANT TO 10 U.S.C. 1552.

THE CONCLUSION IN THE DECISION OF APRIL 2, 1970, FOLLOWED THE HOLDING IN DECISION OF JULY 7, 1954, 34 COMP. GEN. 7, THAT THE SECRETARIES OF THE ARMY, NAVY, AIR FORCE, AND TREASURY ARE NOT VESTED WITH ANY DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED (NOW CODIFIED IN 10 U.S.C. 1552); AND, THEREFORE, THE AMOUNTS AUTHORIZED TO BE PAID UNDER SECTION 207(B) OF THE ACT DEPEND SOLELY UPON A PROPER APPLICATION OF THE STATUTES AND REGULATIONS TO THE FACTS AS SHOWN BY THE CORRECTED RECORD IN EACH PARTICULAR CASE. SEE, ALSO, 40 COMP. GEN. 502; 42 ID. 582; 44 ID. 144; AND 45 ID. 47.

IN OUR OPINION THE FACT THAT SERGEANT GEIGER REQUESTED VOLUNTARY RETIREMENT PRIOR TO THE DATE OF THE EXPIRATION OF HIS ENLISTMENT AFFORDS NO BASIS FOR DEPARTING FROM THE CONCLUSION REACHED IN THE DECISION OF APRIL 2, 1970. IN THE CASE CONSIDERED IN THAT DECISION, AS IN THIS CASE, THE MEMBERS CONCERNED WERE ENTITLED UNDER THE DECISION OF THE COURT TO CONTINUE IN AN ACTIVE DUTY STATUS BEYOND THE DATE OF RETIREMENT BUT REQUESTED THE CORRECTION BOARD TO CORRECT THE RECORD TO SHOW THEIR EARLIER RETIREMENT WITH THE UNDERSTANDING THAT THERE WOULD BE NO OFFSET OF CIVILIAN EARNINGS AGAINST THE ACTIVE-DUTY BACK PAY AND ALLOWANCES.

THEREFORE, NO EFFECT MAY BE GIVEN TO THE ASSISTANT SECRETARY'S DIRECTION THAT NO DEDUCTION SHOULD BE MADE FOR INTERIM CIVILIAN EARNINGS FOR THE PERIOD AUGUST 7, 1963, TO JUNE 30, 1964. SUCH DIRECTION DOES NOT RELATE TO A RECORD CORRECTION WITHIN THE PURVIEW OF 10 U.S.C. 1552 BUT RATHER A DETERMINATION OF THE SPECIFIC AMOUNT TO BE PAID AS THE RESULT OF THE RECORDS CORRECTION IN SERGEANT GEIGER'S CASE.

UNDER THE LAW AND REGULATIONS THE AIR FORCE IS AUTHORIZED TO PAY TO SERGEANT GEIGER PAY AND ALLOWANCES FOR THE CONSTRUCTIVE PERIOD OF ACTIVE DUTY, AUGUST 7, 1963, TO JUNE 30, 1964, AS REFLECTED BY HIS CORRECTED MILITARY RECORDS, SUBJECT, OF COURSE, TO THE DEDUCTION OF INTERIM CIVILIAN EARNINGS FOR THE CORRESPONDING PERIOD AS REQUIRED BY THE MEMORANDUM OF MARCH 12, 1969. THE AMOUNT PAYABLE TO SERGEANT GEIGER, AS BASED ON THE CORRECTED RECORD, IS FOR DETERMINATION IN THE FIRST INSTANCE BY THE APPROPRIATE AIR FORCE DISBURSING OFFICER.

WITH RESPECT TO THE AMOUNT WITHHELD FROM SERGEANT GEIGER, IN DECISION OF OCTOBER 28, 1955, 35 COMP. GEN. 241, WHICH INVOLVED THE APPLICATION OF THE ACT OF JUNE 10, 1948, CH. 447. 62 STAT. 354, 5 U.S.C. 652 (1952 ED.), IN THE CASE OF A POSTAL SERVICE EMPLOYEE RESTORED TO HIS FORMER POSITION, THE ACT REQUIRING A DEDUCTION OF "AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD." WE HELD THAT UNEMPLOYMENT COMPENSATION RECEIVED FROM THE OKLAHOMA EMPLOYMENT SECURITY COMMISSION DURING THE INVOLVED PERIOD MAY BE REQUIRED TO BE REFUNDED TO THAT COMMISSION AND, THEREFORE, NO DEDUCTION SHOULD BE MADE FROM THE BACK PAY TO WHICH THE EMPLOYEE WAS ENTITLED FOLLOWING HIS RESTORATION. WE SEE NO REASON WHY THE PRINCIPLE OF THAT DECISION SHOULD NOT BE APPLICABLE IN MILITARY BACK PAY CASES SUCH AS THIS. THEREFORE, THE UNEMPLOYMENT COMPENSATION RECEIVED BY SERGEANT GEIGER DOES NOT COME WITHIN THE PURVIEW OF THE TERM "INTERIM CIVILIAN EARNINGS" FOR THE PURPOSES OF THE MEMORANDUM OF MARCH 12, 1969, AND THE AMOUNT INVOLVED, $1,092, MAY BE REFUNDED TO SERGEANT GEIGER.

YOUR QUESTION IS ANSWERED ACCORDINGLY AND THE VOUCHER IS RETURNED, PAYMENT THEREON BEING AUTHORIZED ON THE BASIS INDICATED ABOVE.