B-156242, MAY 3, 1965, 44 COMP. GEN. 667

B-156242, MAY 3, 1965, 44 COMP. GEN. 667

PAY - ABSENCE WITHOUT LEAVE - EXCUSED - BASIS AN ARMY ENLISTED MEMBER WHO, INCIDENT TO REVOCATION OF RETIREMENT ORDERS DUE TO A MISCALCULATION OF ACTIVE SERVICE FOR RETIREMENT, HAD A YEAR OF RETIREMENT EXCUSED AS AN UNAVOIDABLE ABSENCE WHEN RETURNED TO ACTIVE DUTY TO QUALIFY FOR RETIREMENT MAY NOT HAVE THE EXCUSED PERIOD REGARDED AS ,ABSENCE WITHOUT" OR "OVER" LEAVE UNDER 37 U.S.C. 503 (A), WHICH ARE TERMS DESCRIBING A SITUATION IN WHICH THE ABSENT MEMBER IS OBLIGATED TO RETURN TO ACTIVE DUTY BUT IS PREVENTED BY A CIRCUMSTANCE BEYOND HIS CONTROL OR CONTROL OF THE GOVERNMENT AND THE MEMBER'S INELIGIBILITY FOR RETIREMENT DOES NOT CHANGE THE FACT THAT HE WAS NOT OBLIGATED TO PERFORM ANY ACTIVE DUTY SO THAT THE EXCUSE OF ABSENCE COULD MAKE THE ABSENCE "ACTIVE DUTY," AND, THEREFORE, THE LEGALITY OF CREDITING THE EXCUSED PERIOD AS ACTIVE DUTY FOR RETIREMENT QUALIFICATION IS TOO DOUBTFUL TO PERMIT PAYMENT OF RETIRED PAY.

TO LIEUTENANT COLONEL F. M. CALLINAN, DEPARTMENT OF THE ARMY, MAY 3, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 13, 1965, FORWARDED HERE BY FIRST INDORSEMENT DATED MARCH 1, 1965, OF THE OFFICE, CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER STATED IN FAVOR OF MASTER SERGEANT ROBERT J. SORMAN, RA 17 272 271, RETIRED, COVERING RETIRED PAY FOR THE PERIOD FEBRUARY 1 TO 28, 1965. YOUR REQUEST HAS BEEN ALLOCATED D.O. NUMBER A 831 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 275, SPECIAL ORDERS NO. 159, JULY 5, 1963, ISSUED AT HEADQUARTERS, DEPARTMENT OF THE ARMY, UNDER THE PROVISIONS OF 10 U.S.C. 3914, SERGEANT SORMAN WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE JULY 31, 1963, PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE RETIRED RESERVE EFFECTIVE AUGUST 1, 1963. IN DETERMINING WHETHER HE MIGHT BE RETIRED AND IN COMPUTING HIS RETIRED PAY, SERGEANT SORMAN WAS CREDITED WITH 20 YEARS, 0 MONTHS AND 14 DAYS OF ACTIVE SERVICE FOR RETIREMENT ELIGIBILITY UNDER THE PROVISIONS OF 10 U.S.C. 3925, AND 21 YEARS, 6 MONTHS AND 24 DAYS' SERVICE FOR BASIC PAY PURPOSES. SUBSEQUENT VERIFICATION OF HIS SERVICE DISCLOSED THAT ON JULY 31, 1963, HE HAD COMPLETED 18 YEARS, 11 MONTHS AND 14 DAYS' ACTIVE FEDERAL SERVICE AND 20 YEARS, 5 MONTHS AND 24 DAYS' SERVICE CREDITABLE FOR BASIC PAY PURPOSES. SINCE HE WAS NOT ELIGIBLE FOR RETIREMENT WITH PAY ON AUGUST 1, 1963, THE ADJUTANT GENERAL, BY LETTER DATED AUGUST 4, 1964, ADVISED THE COMMANDING GENERAL, FIFTH U.S. ARMY, THAT THE RETIREMENT INSTRUMENT WAS CONSIDERED VOID AND THE RETIREMENT INVALID AND ASKED THAT IMMEDIATE ACTION BE TAKEN TO HAVE SERGEANT SORMAN RETURNED TO ACTIVE DUTY TO COMPLETE HIS SERVICE. THE LETTER ALSO ADVISED THAT THE ABSENCE OF SERGEANT SORMAN FROM AUGUST 1, 1963, UNTIL HIS RETURN TO DUTY WAS EXCUSED AS UNAVOIDABLE ON HIS PART AS HE ACTED IN GOOD FAITH IN COMPLIANCE WITH SEEMINGLY VALID RETIREMENT ORDERS AND HIS ABSENCE WAS ALSO CONSIDERED AS UNAVOIDABLE ON THE PART OF THE ARMY IN THAT HIS SERVICE WAS COMPUTED THROUGH AUGUST 31, 1964, AND UPON DISCOVERY OF THE ERROR, IMMEDIATE ACTION WAS TAKEN TO RECTIFY THE MISTAKE.

BY PARAGRAPH 283, SPECIAL ORDERS NO. 198, DATED AUGUST 4, 1964, ISSUED BY ORDER OF THE SECRETARY OF THE ARMY, SERGEANT SORMAN'S RETIREMENT ORDERS WERE REVOKED. PARAGRAPH 254, SPECIAL ORDERS NO. 146, DATED AUGUST 7, 1964, ISSUED AT HEADQUARTERS, FIFTH UNITED STATES ARMY, DIRECTED SERGEANT SORMAN TO REPORT TO THE COMMANDING GENERAL, XIV UNITED STATES ARMY CORPS, MINNEAPOLIS, MINNESOTA, FOR DUTY AND SUBSEQUENT PROCESSING FOR RETIREMENT TO BE EFFECTED UPON RECEIPT OF DEPARTMENT OF THE ARMY RETIREMENT ORDERS. PURSUANT TO PARAGRAPH 275, SPECIAL ORDERS NO. 213, DATED AUGUST 21, 1964, HE WAS RELIEVED FROM ACTIVE DUTY EFFECTIVE AUGUST 31, 1964, PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE RETIRED RESERVE, EFFECTIVE SEPTEMBER 1, 1964, PURSUANT TO 10 U.S.C. 3914. WITH THIS ADDITIONAL ACTIVE DUTY, TOGETHER WITH THE EXCUSED TIME WHILE ERRONEOUSLY CARRIED ON THE RETIRED LIST, HE WAS CREDITED WITH 20 YEARS, 0 MONTHS AND 14 DAYS' SERVICE FOR VOLUNTARY RETIREMENT UNDER 10 U.S.C. 3925 AND 21 YEARS, 6 MONTHS AND 24 DAYS' SERVICE FOR BASIC PAY PURPOSES UNDER THE PROVISIONS OF SECTION 202 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 807, NOW 37 U.S.C. 205.

SERGEANT SORMAN HAS BEEN PAID RETIRED PAY FROM AUGUST 1, 1963, THROUGH JUNE 30, 1964. HE APPARENTLY HAS NOT RECEIVED ANY PAY FOR THE PERIOD FROM JULY 1, 1964, THROUGH AUGUST 9, 1964. SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY ON AUGUST 31, 1964, HE RECEIVED RETIRED PAY FOR THE PERIOD SEPTEMBER 1, 1964, THROUGH JANUARY 31, 1965. YOU SAY THAT BASED ON OUR DECISION, B-154961 OF NOVEMBER 3, 1964, 44 COMP. GEN. --, IT APPEARS SERGEANT SORMAN IS ENTITLED TO RETAIN THE RETIRED PAY HE RECEIVED FROM AUGUST 1, 1963, THROUGH JUNE 30, 1964, UNDER THE DE FACTO DOCTRINE AND THAT HE IS NOT ENTITLED TO PAYMENT OF RETIRED PAY FROM JULY 1, 1964, THROUGH AUGUST 9, 1964.

SINCE UPON RECALL TO ACTIVE STATUS, SERGEANT SORMAN ONLY SERVED FROM AUGUST 10 THROUGH 31, 1964, OR 22 DAYS OF THE 1 YEAR AND 16 DAYS' ADDITIONAL SERVICE NEEDED TO ACCOMPLISH A VALID RETIREMENT, YOU EXPRESS DOUBT AS TO THE LEGALITY OF HIS RETIREMENT ON AUGUST 31, 1964, WITH ENTITLEMENT TO RETIRED PAY EFFECTIVE SEPTEMBER 1, 1964, WITHOUT HAVING ACTUALLY COMPLETED 20 YEARS OF ACTIVE FEDERAL SERVICE FOR RETIREMENT PURPOSES.

SECTION 3914, TITLE 10, U.S. CODE, PROVIDES:

"UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY, A REGULAR ENLISTED MEMBER OF THE ARMY WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE COMPUTED UNDER SECTION 3925 OF THIS TITLE MAY, UPON HIS REQUEST, BE RETIRED. HE THEN BECOMES A MEMBER OF THE ARMY RESERVE, AND SHALL PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED UNDER LAW, UNTIL HIS SERVICE COMPUTED UNDER SECTION 3925 OF THIS TITLE, PLUS HIS INACTIVE SERVICE AS A MEMBER OF THE ARMY RESERVE, EQUALS 30 YEARS.'

SECTION 3925 PROVIDES IN PERTINENT PART THAT:

"/A) FOR THE PURPOSE OF DETERMINING WHETHER A REGULAR ENLISTED MEMBER OF THE ARMY MAY BE RETIRED UNDER SECTION 3914 OR 3917 OF THIS TITLE, AND COMPUTING HIS RETIRED PAY UNDER SECTION 3991 OF THIS TITLE, HIS YEARS OF SERVICE ARE COMPUTED BY ADDING ALL ACTIVE SERVICE IN THE ARMED FORCES AND SERVICE COMPUTED UNDER SECTION 3683 OF THIS TITLE.'

THE REGULATIONS AUTHORIZED BY 10 U.S.C. 3914 TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY ARE CONTAINED IN AR 635-230, PARAGRAPH 7 OF WHICH SETS FORTH THE SERVICE CREDITABLE FOR VOLUNTARY RETIREMENT. PARAGRAPH 8 OF THE REGULATIONS PROVIDES IN PART THAT NONE OF THE PERIODS OF SERVICE IN A RESERVE COMPONENT NOT ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING OR OTHER FULL TIME TRAINING DUTY ARE CREDITABLE FOR RETIREMENT UNDER SUCH REGULATIONS.

SECTION 503 (A), TITLE 37, U.S. CODE, PROVIDES THAT:

"A MEMBER * * * WHO IS ABSENT WITHOUT LEAVE OR OVER LEAVE, FORFEITS ALL PAY AND ALLOWANCES FOR THE PERIOD OF THAT ABSENCE, UNLESS IT IS EXCUSED AS UNAVOIDABLE.'

SINCE THE EVIDENCE BROUGHT TO LIGHT BY THE VERIFICATION OF SERGEANT SORMAN'S SERVICE ON JUNE 25, 1964, DISCLOSED THAT THERE HAD BEEN A MISCALCULATION OF HIS ACTIVE SERVICE PRIOR TO HIS RETIREMENT AND THAT AS A RESULT OF THIS ERROR HE WAS NOT ELIGIBLE FOR RETIREMENT AND HIS RETIREMENT ORDERS THUS WERE ERRONEOUSLY ISSUED, IT WAS CLEARLY WITHIN THE AUTHORITY OF THE SECRETARY OF THE ARMY TO DIRECT THE ISSUANCE OF ORDERS REVOKING THE RETIREMENT ORDERS. HOWEVER, WHILE THE ORDERS OF AUGUST 4, 1964, WERE EFFECTIVE FOR THAT PURPOSE, IT IS NOT CLEAR THAT SERGEANT SORMAN MAY BE CONSIDERED TO HAVE BEEN IN AN ACTIVE DUTY STATUS UNTIL HE REPORTED FOR ACTIVE DUTY PURSUANT TO HIS ACTIVE DUTY ORDERS OF AUGUST 7, 1964. DURING THE PERIOD AUGUST 1, 1963, TO AUGUST 9, 1964, HE WAS UNDER NO OBLIGATION TO PERFORM MILITARY DUTY AND HE ACTUALLY PERFORMED NONE DURING THAT PERIOD.

SECTION 503 (A), 37 U.S. CODE, RECOGNIZES THAT THE SECRETARY OF THE ARMY MAY EXCUSE AS UNAVOIDABLE AN ABSENCE WITHOUT LEAVE OR AN ABSENCE OVER LEAVE. WE THINK THAT THOSE TWO TERMS DESCRIBE A SITUATION IN WHICH THE ABSENT MEMBER IS UNDER SOME OBLIGATION TO RETURN TO HIS STATION FOR THE PERFORMANCE OF ACTIVE DUTY BUT BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL OR BEYOND THE CONTROL OF THE GOVERNMENT SUCH RETURN IS PREVENTED. OTHER WORDS, ABSENCE WITHOUT LEAVE OR ABSENCE OVER LEAVE IS SOMETHING OTHER THAN AN ABSENCE FOR WHICH THE MEMBER HAS BEEN GRANTED PERMISSION. THERE SEEMS TO BE NO QUESTION BUT THAT SERGEANT SORMAN WAS OFFICIALLY EXCUSED FROM THE PERFORMANCE OF ANY MILITARY DUTY DURING THE PERIOD AUGUST 1, 1963, TO AUGUST 9, 1964, AND THAT HE NEITHER PERFORMED NOR WAS OBLIGATED TO PERFORM ANY ACTIVE DUTY. HIS INELIGIBILITY FOR RETIREMENT WITH PAY DOES NOT CHANGE THE FACT THAT DURING THAT PERIOD NO ACTIVE DUTY WAS REQUIRED OR CONTEMPLATED AND WE DOUBT THAT SUCH A SITUATION IS WITHIN THE SCOPE OF 37 U.S.C. 503 (A) SO THAT AN EXCUSE OF HIS ABSENCE UNDER THAT SECTION COULD MAKE THE PERIOD OF ABSENCE "ACTIVE SERVICE" WITHIN THE MEANING OF 10 U.S.C. 3925.

THE RECORD FURNISHED THIS OFFICE SHOWS THAT SERGEANT SORMAN REENLISTED ON FEBRUARY 7, 1960. WE UNDERSTAND THAT THAT REENLISTMENT WAS FOR A PERIOD OF 3 YEARS (TO EXPIRE FEBRUARY 6, 1963) AND THAT PRIOR TO THE END OF THAT PERIOD HE EXTENDED THE ENLISTMENT FOR 6 ADDITIONAL MONTHS WHICH WOULD HAVE MADE IT EXPIRE ON AUGUST 6, 1963. IT WOULD SEEM EXTREMELY DOUBTFUL THAT AN ACTIVE SERVICE STATUS COULD EXIST AFTER THAT DATE AND ON THAT DATE HE HAD NOT YET PERFORMED THE SERVICE NECESSARY TO BE ELIGIBLE FOR RETIREMENT.

SINCE SERGEANT SORMAN WAS EXCUSED FROM THE PERFORMANCE OF DUTY DURING THE PERIOD AUGUST 1, 1963, TO AUGUST 9, 1964, AND NOT "ABSENT WITHOUT LEAVE OR OVER LEAVE" WITHIN THE MEANING OF 37 U.S.C. 503 (A), IT IS OUR VIEW THAT THE LEGALITY OF CREDITING THAT PERIOD (EXCEPT POSSIBLY AUGUST 1 TO 6, 1963) AS ACTIVE SERVICE FOR THE PURPOSE OF QUALIFYING FOR RETIREMENT UNDER 10 U.S.C. 3914 (IN THE ABSENCE OF SOME APPROPRIATE CORRECTION OF HIS RECORD UNDER 10 U.S.C. 1552), IS SUFFICIENTLY DOUBTFUL TO REQUIRE THE CONCLUSION THAT PAYMENT SHOULD NOT BE MADE ON THE SUBMITTED VOUCHER AND SUCH VOUCHER WILL BE RETAINED HERE.