B-175160, APR 27, 1972

B-175160, APR 27, 1972

MILITARY PERSONNEL - ERRONEOUS CREDITING OF EXCESS LEAVE - REQUEST FOR REFUND OF COLLECTION DECISION DENYING THE CLAIM OF ETRICH P. WILLIAMS, JR., FOR REFUND OF PAY AND ALLOWANCES COLLECTED FOR EXCESS LEAVE FOUND DUE AT THE DATE OF DISCHARGE FROM THE AIR FORCE. THERE EXISTS NO STATUTORY AUTHORITY BY WHICH GAO MAY REMIT OR WAIVE THE INDEBTEDNESS OR REFUND AN AMOUNT PROPERLY COLLECTED FROM A MEMBER OF THE UNIFORMED SERVICES, NO MATTER HOW VALID HIS CLAIM MAY BE. ACCORDINGLY, THE PRIOR DISALLOWANCE OF SGT. WILLIAMS' CLAIM MUST BE SUSTAINED.

TO TECHNICAL SERGEANT ETRICH P. WILLIAMS, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 7, 1972, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR REFUND OF PAY AND ALLOWANCES COLLECTED FROM YOU FOR 39 DAYS OF EXCESS LEAVE FOUND DUE AT THE DATE OF YOUR DISCHARGE FROM THE UNITED STATES AIR FORCE ON JULY 10, 1969.

GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 15, 1971, DISALLOWED YOUR CLAIM FOR THE REASON THAT YOUR INDEBTEDNESS ON ACCOUNT OF EXCESS LEAVE WAS RECOVERED AND THAT THIS OFFICE HAS NO AUTHORITY TO REFUND ANY AMOUNT PROPERLY COLLECTED. YOU CONTEND THAT OUR ACTION WAS UNJUST AND THAT IN EFFECT THE SETTLEMENT FAILED TO MEET THE ISSUES RAISED IN YOUR LETTER OF FEBRUARY 18, 1971.

THE RECORD SHOWS THAT ON JULY 10, 1965, YOU WERE DISCHARGED FROM YOUR ENLISTMENT IN THE AIR FORCE AND RECEIVED FINAL PAYMENT OF PAY AND ALLOWANCES DUE THROUGH THAT DATE, INCLUDING PAYMENT FOR 60 DAYS' ACCRUED LEAVE. ON JULY 11, 1965, YOU REENLISTED IN THE AIR FORCE FOR FOUR YEARS, BUT IT APPEARS THAT YOUR LEAVE ACCOUNT WAS ERRONEOUSLY CREDITED WITH THE 60 DAYS' LEAVE EVEN THOUGH YOU HAD PREVIOUSLY RECEIVED PAYMENT THEREFOR.

YOUR LEAVE RECORDS SHOW THAT IN FISCAL YEARS 1966, 1967 AND 1968 YOU WERE CREDITED WITH 29.5 DAYS, 30 DAYS, AND 30 DAYS, RESPECTIVELY, AND THAT YOU TOOK 30 DAYS' LEAVE IN EACH OF THOSE YEARS, WHICH RESULTED IN A .5 NEGATIVE LEAVE BALANCE ON JUNE 30, 1968. HOWEVER, THE 60 DAYS' LEAVE ERRONEOUSLY CREDITED TO YOUR ACCOUNT UPON YOUR REENLISTMENT ON JULY 11, 1966, WAS CARRIED FORWARD ON YOUR LEAVE RECORDS FOR EACH OF THE FISCAL YEARS 1967, 1968, AND 1969.

DURING FISCAL YEAR 1969 YOU ACCRUED 30 DAYS' LEAVE AND YOUR LEAVE RECORD ERRONEOUSLY REFLECTED THAT YOU HAD 90 DAYS' LEAVE AVAILABLE FOR USE AS OF JUNE 30, 1969. IT APPEARS THAT YOU USED A TOTAL OF 67 DAYS' LEAVE DURING THAT YEAR BASED ON YOUR BELIEF THAT YOU HAD THE LEAVE AVAILABLE FOR YOUR USE. UPON REENLISTMENT ON JULY 11, 1969, THE DISCREPANCY IN YOUR LEAVE ACCOUNT WAS DISCOVERED AND THE 60-DAY LEAVE BALANCE ERRONEOUSLY CREDITED UPON YOUR REENLISTMENT IN 1965 AND CARRIED FORWARD EACH YEAR THEREAFTER WAS ADMINISTRATIVELY DROPPED FROM YOUR RECORDS. AS A RESULT, INSTEAD OF HAVING A 23-DAY POSITIVE LEAVE BALANCE ON JUNE 30, 1969, YOU ACTUALLY HAD A 37.5 NEGATIVE LEAVE BALANCE AND STEPS WERE TAKEN TO NOTIFY YOU AND CORRECT THE MATTER.

YOU STATE THAT UPON BEING NOTIFIED IN JULY 1969 OF THE ERRONEOUS CREDITING TO YOUR LEAVE RECORD AND OF THE EXISTENCE OF A 37.5 DAY NEGATIVE LEAVE BALANCE AND THAT COLLECTION ACTION WAS BEING INSTITUTED FOR THE OVERPAYMENT OF YOUR LEAVE ACCOUNT, YOU FILED AN APPLICATION FOR REMISSION AND CANCELLATION OF THE DEBT WITH YOUR COMMANDING OFFICER. YOU ALSO STATE THAT BEFORE ACTION ON YOUR REQUEST COULD BE COMPLETED AND APPROVED, THE AIR FORCE COLLECTED THE AMOUNT OF $867.10, THE VALUE OF THE EXCESS LEAVE, BY WITHHOLDING PAYCHECKS DUE YOU WITHOUT PRIOR NOTICE THAT THEY WOULD DO SO.

YOU THEREFORE CONTEND THAT THE MONEY COLLECTED TO SATISFY THIS DEBT SHOULD BE RETURNED TO YOU BECAUSE (A) THE DEBT AROSE DUE TO AN ERROR COMMITTED BY THE AIR FORCE; (B) YOU ACTED IN GOOD FAITH WHEN YOU TOOK THE 67 DAYS' LEAVE; (C) YOU HAD NO ADVANCE NOTICE OF THE COLLECTION; AND (D) THE COLLECTION ACTION PRODUCED AN EXTREME HARDSHIP ON YOU AND YOUR FAMILY AND CONTINUES TO BE A HARDSHIP.

A MEMBER OF THE ARMED FORCES IS ENTITLED UNDER 10 U.S.C. 701(A) TO ACCRUE LEAVE AT THE RATE OF 2 1/2 CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE. SECTION 704 OF TITLE 10, U.S. CODE, PROVIDES THAT SUCH LEAVE MAY BE TAKEN ON A CALENDAR-DAY BASIS AS VACATION OR AS AN ABSENCE FROM DUTY WITH PAY, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY CONCERNED. UNDER THE PROVISIONS OF 37 U.S.C. 502(B) A MEMBER WHO IS AUTHORIZED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE TO BE ABSENT FOR A PERIOD THAT IS LONGER THAN THE LEAVE AUTHORIZED BY SECTION 701 OF TITLE 10, IS NOT ENTITLED TO PAY OR ALLOWANCES DURING THAT PART OF HIS ABSENCE THAT IS MORE THAN THE NUMBER OF DAYS' LEAVE AUTHORIZED.

IN THE MATTER OF THE FINAL ACCOUNTING OF A MEMBER'S LEAVE RECORD UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY, A PERIOD OF EXCESS LEAVE IS A PERIOD DURING WHICH HE IS NOT ENTITLED TO PAY AND ALLOWANCES OR TO ACCRUE LEAVE. THUS LEAVE CREDITS WHICH WOULD HAVE OTHERWISE ACCRUED DURING THE EXCESS LEAVE PERIOD WERE CHARGEABLE TO YOUR ACCOUNT. THE RECORD REFLECTS THAT IT WAS ADMINISTRATIVELY DETERMINED THAT YOU HAD RECEIVED PAYMENT OF PAY AND ALLOWANCES FOR A TOTAL OF 39 DAYS TO WHICH YOU WERE NOT ENTITLED AND THEREFORE SUCH OVERPAYMENT WAS SUBJECT TO COLLECTION. COLLECTION ACTION WAS TAKEN IN YOUR CASE UNDER THE PROVISIONS OF 5 U.S.C. 5514 AND AIR FORCE MANUAL 177-105 AND YOUR DEBT WAS LIQUIDATED IN THE PROPER AMOUNT.

SECTION 9837(D) OF TITLE 10, U.S. CODE, PROVIDES THAT:

"IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY MAY HAVE REMITTED OR CANCELLED ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE."

SUCH PROVISION OF LAW HAS BEEN UNIFORMLY INTERPRETED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS AUTHORIZING THE REMISSION OF ONLY UNREPAID DEBTS, EXCLUDING AUTHORITY TO REFUND ANY OR ALL OF A DEBT THAT HAS ALREADY BEEN COLLECTED.

THE GROUNDS UPON WHICH YOU BASE YOUR CLAIM TO THIS OFFICE MIGHT HAVE SERVED AS A PROPER BASIS FOR AN APPLICATION FOR THE REMISSION OF YOUR INDEBTEDNESS IF TIMELY CONSIDERED. THERE IS, HOWEVER, NO STATUTORY AUTHORITY WHICH AUTHORIZES THIS OFFICE TO REMIT OR WAIVE ANY INDEBTEDNESS OF A MEMBER OF THE ARMED FORCES, NO MATTER HOW VALID SUCH CLAIM MAY BE, NOR DOES THIS OFFICE HAVE ANY AUTHORITY TO REFUND AN AMOUNT PROPERLY COLLECTED FROM A MEMBER FOR EXCESS LEAVE. ACCORDINGLY, SINCE THE RECORD SHOWS THAT THE AMOUNT COLLECTED FROM YOUR PAY ON ACCOUNT OF SUCH EXCESS LEAVE INDEBTEDNESS WAS PROPERLY COMPUTED, THE ACTION TAKEN BY OUR CLAIMS DIVISION IS DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

YOU ALSO STATE THAT YOUR LEAVE RECORDS CONTINUE TO SHOW AN ERRONEOUS BALANCE AND THAT AS A RESULT YOU CLAIM THAT YOU HAVE BEEN FORCED TO LOSE 10 DAYS' LEAVE THAT YOU WOULD HAVE OTHERWISE BEEN ELIGIBLE TO TAKE.

YOUR LEAVE RECORD UPON YOUR REENLISTMENT ON JULY 11, 1969, SHOULD HAVE SHOWN A ZERO BALANCE. DURING THE FISCAL YEAR ENDING JUNE 30, 1970, YOUR LEAVE RECORD SHOWS THAT YOU ACCRUED 30 DAYS' LEAVE AND THAT YOU USED NO LEAVE, WHICH RESULTED IN A BALANCE OF 30 DAYS' LEAVE TO BE CARRIED OVER INTO THE NEXT YEAR. THE AF FORM 229, DATED JUNE 30, 1970, SHOWS, INSTEAD, THAT YOU HAD A BALANCE OF 40 DAYS' ACCRUED LEAVE OR 10 DAYS MORE THAN YOU WERE APPARENTLY ENTITLED TO CARRY OVER TO THE NEXT YEAR.

YOUR LEAVE RECORDS SHOW THAT IN THE FISCAL YEAR ENDING JUNE 30, 1971, YOU ACCRUED AN ADDITIONAL 30 DAYS' LEAVE AND THAT YOU TOOK NO LEAVE DURING THAT PERIOD. WHEN THE NET ACCRUED LEAVE FOR THAT YEAR WAS COMBINED WITH THE LEAVE WHICH ACCRUED TO YOU DURING THE PRIOR YEAR IT SHOULD HAVE PRODUCED A MAXIMUM LEAVE BALANCE OF 60 DAYS ON JUNE 30, 1971. AF FORM 229, DATED JUNE 30, 1971, SHOWS THAT THE TOTAL DAYS ACCRUED BY YOU AS OF THAT DATE (INCLUDING THE EARLIER PERIOD) WAS 70 DAYS, BUT THAT, SINCE THE MAXIMUM CARRYOVER OF ACCRUED LEAVE PERMITTED BY LAW (10 U.S.C. 701(B)) IS LIMITED TO 60 DAYS, 10 OF THE 70 DAYS' ACCRUED LEAVE WERE "LOST," THAT IS, YOUR ACCRUED LEAVE BALANCE WAS REDUCED TO 60 DAYS.

SINCE YOU HAD A ZERO LEAVE BALANCE UPON YOUR REENLISTMENT ON JULY 11, 1969, AND ACCRUED ONLY 60 DAYS DURING FISCAL YEARS 1970 AND 1971, THE MAXIMUM AMOUNT OF LEAVE THAT COULD BE CREDITED TO YOUR ACCOUNT AS OF JUNE 30, 1971, WAS 60 DAYS. THEREFORE THE REDUCTION OF YOUR LEAVE BALANCE TO 60 DAYS AS OF JUNE 30, 1971, DID NOT RESULT IN THE LOSS OF ANY LEAVE TO WHICH YOU WERE ENTITLED ON THAT DATE. IN FACT, THE DROPPING OF THOSE 10 DAYS FROM YOUR LEAVE RECORDS HAS PRODUCED AN APPROPRIATE CORRECTION OF YOUR LEAVE ACCOUNT FOR THE YEAR ENDING JUNE 30, 1971. IT WOULD APPEAR, THEREFORE, THAT BASED ON THE INFORMATION PROVIDED, IF YOU USED NO LEAVE DURING FISCAL YEARS 1970 AND 1971, AND IF NOT MORE THAN 60 DAYS' ACCRUED LEAVE HAS BEEN ENTERED ON YOUR CURRENT AF FORM 229 LEAVE RECORD (BEGINNING JULY 1, 1971) AS A STARTING BALANCE, NO ADDITIONAL CORRECTIVE ACTION NEED BE TAKEN IN YOUR LEAVE ACCOUNT.