James Andrew Thomas v. Dick Cheney, Secretary of Defense, and Michael P.W. Stone, Secretary of the Army , 925 F.2d 1407 ( 1991 )

MICHEL, Circuit Judge.

Defendants, the Secretaries of Defense and the Army (collectively “the Army”), appeal the judgment of the United States District Court for the Northern District of Oklahoma, reversing the decision of the United States Army Board for Correction of Military Records (“Board”), In the Case of James A. Thomas, AC85-07092 (Nov. 26, 1986), and ordering expunged from Thomas’ military personnel records all “administrative AWOL” and certain other derogatory references. James Andrew Thomas v. Weinberger, No. 87-C-378-E (N.D.Okla. Oct. 12, 1989). Defendants also appeal the district court award to Thomas of pay arising from constructive service credit for the period between July 22, 1982, and April 10, 1983, with concomitant full restoration of benefits, based on its conclusion he was wrongfully classified “administratively] AWOL.”

Although the district court correctly ordered certain derogatory references deleted from Major Thomas’ records, Thomas was lawfully denied benefits and service credits by the Board because he was properly deemed administratively AWOL, and hence ineligible for pay and benefits even though he was not convicted of the criminal offense of AWOL. Accordingly, we affirm-in-part and reverse-in-part the judgment of the district court in this suit under the “Little” Tucker Act.

BACKGROUND

Thomas’ military service dates to 1950, when he enlisted and served with the Army National Guard of the United States. By 1981, Thomas had achieved the rank of Major, United States Army Reserve. In April 1981, Thomas left inactive reserve status to participate in the Active Guard/Reserve (“AGR”) “two-plus-two” program, which consists of a two-year tour of duty with a possible, mutually agreed on, two-year extension. Major Thomas was assigned to an initial tour, to conclude on April 10, 1983, teaching Military Science to Reserve Officer Training Corps (“ROTC”) cadets at Southwest Missouri State University (“Southwest”) in Springfield, Missouri. The assignment was made under the Army Reserve Long Tour Management Program, which allows officers to perform their entire tour at the original assignment location and prohibits subsequent involuntary reassignment to duty stations greater than fifty miles from the initial post.

During Thomas’ tenure at Southwest, apparently personal friction arose between Thomas and his commanding officer. As a result, the commanding officer, Lieutenant Colonel Curbow, offered Major Thomas a choice: either be relieved of his duties, or request reassignment. Thomas chose the latter, and in February 1982 formally requested reassignment. On May 13, Thomas was ordered to report to Fort Knox, Kentucky, by June 1. The Fort Knox orders were revoked by new orders issued on June 8. These orders also stated that Thomas’ Southwest assignment remained in effect. From June 7 to July 21, Thomas was assigned to, and participated in, ROTC Advanced Camp at Fort Riley, Kansas. Meanwhile, on June 28, Thomas declined new reassignment orders to either Fort Bragg, North Carolina, or Fort Eustis, Virginia, because both facilities were located outside the Long Tour program’s fifty-mile involuntary reassignment limit. Sometime after the conclusion of the ROTC summer camp, Thomas went home to Tulsa, Oklahoma, rather than remain at Southwest pursuant to the June 8 orders — the last orders complying with the AGR program limitations.

On August 3, Thomas was again ordered to Fort Bragg, this time by August 16. Again relying on the Long Tour program’s reassignment restrictions, Thomas, by mail-gram from his Tulsa home, once more declined the assignment. On August 4, Thomas wrote Colonel David M. Fleming, II, Chief of the Long Tour Management Office, inquiring about his status and seeking clarification concerning contradictory instructions he believed he received in telephone conversations with Army personnel. In his letter to Colonel Fleming, Major Thomas wrote:

Be advised, Sir, I am not requesting early release from active duty. Nor have I ever requested leave. I’m just waiting.

So many contradictory stories have been told [to] me over the phone that I prefer that future communication be strictly formal, strictly written, strictly hardball.

(emphasis added).

On August 17, the day after Thomas was to report to Fort Bragg, Colonel Lawrence W. Ondecker, from Fort Knox, met with Thomas at Ondecker’s motel room in Springfield, Missouri. Ondecker and Thomas discussed Thomas’ non-compliance with the Fort Bragg orders. Ondecker wrote on September 3 to Brigadier General Smith that “the JAG’s opinion was that [the Army’s] only recourse is to terminate Major Thomas’ AGR status” and that he orally had advised Thomas that Thomas should comply with the Fort Bragg orders and that Thomas was currently absent without leave (“AWOL”).¹

After his interview with Colonel Ondecker, Major Thomas returned again to Tulsa and awaited valid reassignment orders. Thomas continued to receive military pay while in Tulsa from July 1982 through June 1983. During this period, Major Thomas did not report in person to any military facility, nor did he perform any military duties.

Meanwhile, on October 25, 1982, Fort Bragg issued “Dropped from the Rolls of the Army” (“DFRA”) orders effective September 15, 1982. A year later, on October 28, 1983, the Military Personnel Center revoked the DFRA action. On April 20, 1984, the Army retroactively reassigned Thomas from the U.S. Army Reserve Control Group to Fort Bragg, effective September 15, 1982, and notified him that he was AWOL and dropped from the rolls of the Army as of October 15, 1982. On April 25, 1984, he was designated a deserter.

Major Thomas later petitioned the Board for correction of his military records, specifically requesting that all references to “administrative AWOL,” “DFRA” and “desertion” be deleted from his records. The Board ruled that because the reassignment locations were outside the Long Tour program’s authorized “commuting distance,” the reassignment orders had “no legal validity.” Therefore, the Board reasoned, all actions placing Thomas in DFRA and deserter status were a “nullity.” It did not, however, require the Army to remove these references from the records. Nor did the Board upset the Army’s ruling that Thomas was “administratively considered AWOL” after July 22, 1982, stating that “there is no evidence that he timely attempted to resolve his status in the 22 July 1982 through 10 April 1983 period of time.”

On appeal of the Board’s decision to the District Court for the Northern District of Oklahoma, the court, adopting, essentially unchanged, a magistrate’s report, found that since Major Thomas had no assigned place of duty after July 22, 1982 — both because he had validly declined reassignment to Fort Bragg and because he had been relieved of duty at Southwest — he could not have been AWOL and that the Board’s holding to the contrary was arbitrary and without basis in law and not supported by substantial evidence. The court similarly reversed the Board’s refusal to order removal of the references to “deserter” and “DFRA” despite the Board’s holding that these designations were based on actions that were a “nullity.”

JURISDICTION

The district court’s jurisdiction to review the actions of the Board was based on 28 U.S.C. § 1346(a)(2) (1988) (the “Little” Tucker Act), and we have jurisdiction over this appeal as provided by 28 U.S.C. § 1295(a)(2) (1988) (exclusive review of “Little” Tucker Act actions).

QUESTIONS PRESENTED

(1) Whether 37 U.S.C. § 503(a) (1988) as implemented by Army Regulation 630-10 authorizes the Army to make “administrative AWOL" determinations that disqualify service members from receiving pay and benefits; and

(2) If so, whether Major Thomas was “administratively AWOL” from July 22, 1982 until April 10, 1983, and therefore not entitled to military pay or retirement credits for that period because his absence was neither authorized nor excused but was avoidable.

DISCUSSION

I

A service member “absent without leave ... forfeits all pay and allowances for the period of that absence, unless it is excused as unavoidable.” 37 U.S.C. § 503(a) (1988). On its face, and in context, section 503(a) clearly authorizes, indeed requires, the military departments to withhold salary and derivative benefits for any service member on avoidable and unauthorized leave. Werner v. United States, 642 F.2d 404, 412, 226 Ct.Cl. 462 (1981). Among those derivative benefits are service credits or “points” — a primary issue of this appeal.²

Implementation of section 503(a) in cases where the Army elects not to criminally prosecute an AWOL member, counsel for the Army argues, is governed by Army Regulation (“AR”) 630-10, which instructs Army personnel on how to document and process persons appearing to be absent, without authorization, or to have deserted. According to the Army and the regulation itself, AR 630-10 “provides guidance,” inter alia, “for determining absent without leave (AWOL) or desertion status.... It also describes administrative actions for members returning to military control.” AR 630-10 ¶ 1-1 (Jan. 15, 1980).

The district court, however, ruled that AR 630-10 does not authorize the Army to classify Major Thomas, or any service member on unauthorized leave, as “administratively] AWOL.” Thomas v. Weinberger, No. 87-C-378-E, slip op. at 3 (May 17, 1989). According to the court, “The Regulation does not ... define the term ‘administrative AWOL,’ and [the court] here concludes, upon review of AR 630-10, that no classification, as such, exists.” Id.

While the court correctly observes that nowhere in AR 630-10 is the phrase “administrative AWOL” explicitly defined, that does not preclude the existence of such a status. The district court’s cramped reading would render both the statute and the regulation toothless in situations where the Army, in its discretion, chooses not to prosecute criminally a service member on unauthorized leave, but instead opts only to not pay or otherwise reward the absentee. Contrary to what the court assumed, AR 630-10 did not need explicitly to define “administrative AWOL” because it is merely a term of convenience for a “no pay” status mandated by section 503(a), not a criminal “offense.”³ As members of the military well understand, it is a status determined in the routine administration of military affairs without need of the delay, expense, and unnecessary harshness of criminal prosecution. The regulation as written and as applied to Major Thomas recognized this distinction.

Simply because the statute and implementing regulation do not instruct the Army record keeper as to the specific nomenclature for non-criminal AWOL does not mean that a reasonable method of classification and description of this status for entry on the service member’s record is therefore precluded. Wilson v. United States, 917 F.2d 529, 535-36 (Fed.Cir.1990) (in banc) (court will defer to Army’s consistent reasonable interpretation of statute); Chevron USA Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (when a statute is silent or ambiguous with respect to a specific issue, the administering agency’s interpretation, if reasonable, is to be followed by the court).

On careful reading of AR 630-10, it is clear that the regulation, reflecting section 503(a), was designed to instruct Army staff on administrative procedures for determining both criminal and non-criminal AWOL status. For example, paragraph 1-7 notes that the unit commander⁴ “will decide whether disciplinary [or criminal] action should be started and/or whether the member should be charged with time lost (emphasis added).” Indeed, the distinction between the administrative and disciplinary aspects of AWOL is recognized in AR 630-10 11 l-8.c., which provides that a soldier may be charged with time lost during the absence, regardless of a court-martial acquittal for the offense of AWOL, because “[t]he acquittal or disapproved conviction affects only the disciplinary aspects of the absence.” Here, the appropriate authorities decided against disciplinary or criminal action in a court-martial proceeding and instead chose only to charge Major Thomas with time lost.

To read AR 630-10 otherwise would create unintended, far-reaching, and potentially crippling consequences for the armed services by implying that a military member must be deemed at duty and thus entitled to pay and benefits for any period of absence without leave, even though not excused or avoidable, unless he has been convicted of the criminal offense of AWOL under 10 U.S.C. § 886.⁵

To characterize a non-criminal unauthorized absence as an “administrative AWOL” is a reasonable application of the statute and its implementing regulation. Certainly, “administrative AWOL” is a far more preferable term, from the service member’s viewpoint, than other phrases the Army could have used to describe Major Thomas’ absence, like “non-criminally AWOL” or simply “AWOL.”

Accordingly, we hold that section 503(a), as implemented by AR 630-10, does authorize an “administrative AWOL,” i.e., no pay status, and therefore we reverse that portion of the district court’s decision holding otherwise, and ordering restoration of service credits.

II

A

Although the district court found no statutory or regulatory basis existed for an “administrative AWOL” determination, it still ultimately concluded, using its own analytical guideposts, that Major Thomas was not absent without leave, reasoning that since he “was not ordered to be anywhere,” he could not be AWOL. Thomas v. Weinberger, No. 87-C-378-E, slip op. at 3 (May 17, 1989). The district court found, and the Army agrees, that the Fort Bragg and Eustis orders were invalid; Major Thomas was under no obligation to accept reassignment anywhere outside the Long Term program’s fifty-mile involuntary reassignment limit.⁶

At this point, however, the district court began to confuse a symptom with the disease. The lack of valid reassignment orders is not dispositive of the threshold issue of whether Major Thomas was absent without leave. AWOL means what it says — absent without leave. Invalid reassignment orders are neither decisive nor even relevant to the underlying inquiry of whether Major Thomas absented himself, without authorization, from military control. AWOL, after all, is absence without an express grant of leave (or Army authorization) from a unit or place or from military control. That is why, as AR 630-10 111-1 provides, the status can be ended by “returning to military control.”

Major Thomas was ordered to Southwest Missouri State University for two years to train ROTC cadets, starting in April 1981. When he subsequently refused reassignment orders because the posts were too distant and the Army failed to shorten his two-year tour of active duty, we conclude the consequence was, by operation of law, to leave standing his original orders to Southwest. Thomas never received, nor does he argue otherwise, written orders relieving him from Southwest. Indeed, he received June 8 written orders informing him he was not relieved from Southwest, but that his original orders assigning him there remained in force. By their express terms, these orders required Thomas to remain at Southwest until April 1983.⁷ Therefore, the district court was clearly in error by ruling that Thomas did not have a place of duty from where he could be absent. He did. It was Southwest.⁸ And even Major Thomas recognized this. In listing his options after receiving another set of invalid re assignment orders, Major Thomas states that he could have chosen to “stand at Parade Rest in Springfield, Missouri for the next several years awaiting a decision by Army,” but instead “opted,” while stressing that he was not requesting leave, to “go home in anticipation of good [reassignment] orders.” Jt. App. at 21.

As the Army correctly asserts, Major Thomas may or may not have had teaching duties at Southwest, but Southwest was still his valid place of duty. Indeed, his last valid duty station orders, dated June 8, 1982, revoked the improper assignment to Fort Knox and specifically directed him that the original orders assigning him to Southwest remained in effect. (Orders R-05-000893R; App. at 34.) As counsel for the Army suggests, if Major Thomas returned to Southwest and was forced to “stand at Parade Rest” rather than being given meaningful duties, he could seek relief under grievance procedures established by 10 U.S.C. § 938 (1988). More importantly, he would not have been AWOL. All Thomas did was inform some Army officials of his whereabouts; he never reported in person to Southwest or to any Army base during the nine-month period in dispute.

The Army concedes that Thomas may have been confused as to his proper duty station. Even so, this confusion, especially on the part of a commissioned officer of over 30 years experience⁹, does not entitle Thomas to depart all military control and absent himself without authorization. See United States v. Vidal, 45 C.M.R. 540 (1972) (Army regulations and established precedent make clear that active duty members must obtain permission whenever they leave military control); Switkes v. United States, 480 F.2d 844, 848, 202 Ct.Cl. 162 (1973); United States v. Gudaitis, 18 M.J. 816, 819 (AFCMR 1984). While, as the Army asserts, Southwest was his lawful place of duty, the Army allows that Thomas could have, at the very minimum, reported in person to any military station, thereby avoiding being AWOL, and attempted to clarify both his duty station and re assignment orders rather than to simply “go home,” write some letters, collect paychecks for nine months for no work, and await new orders. Although, as Thomas argues and the Army does not dispute, he was relieved from teaching duties at Southwest, was invalidly reassigned to Fort Bragg and Fort Eustis, was without any place of re assignment, had no new duty to perform, and may have been entitled to early release from the Long Tour Program, Thomas was still absent without leave from Southwest, his last valid place of assignment. Even if Thomas were not absent without leave from Southwest, undeniably he absented himself without leave from military control. No plausible reading of the record and the case law can lead to a contrary conclusion. Therefore, departure from military control forms a second, independently sufficient basis for upholding the Board determination.

B

Only now, after determining that Major Thomas was absent without leave between July 22, 1982, and April 10, 1983, do we turn to such factors as whether the conflicting and invalid orders were confusing enough to justify Thomas staying home, and therefore precluding as “unavoidable” his AWOL status.¹⁰

After review of the record, it would stretch the bounds of reason to conclude that Major Thomas was “unavoidably” absent during the nine months when he abandoned his assigned ROTC post and instead of remaining at Southwest until April 1983, went home to Tulsa, Oklahoma, and remained there. Although the reassignment orders he received were invalid, Major Thomas cannot use them as a shield against being classified “administratively AWOL.” Even if Thomas did not have a valid place of assignment, he was nevertheless obligated to report in person to any Army base, thereby returning himself to military control.¹¹

Although Major Thomas did write several letters and make telephone calls prior to August 16, 1982 to clarify his reassignment orders, the record is barren of any attempt after that date to ascertain where he should report or what duties he should perform.¹² In fact, it was only in January 1986, two and one half years after he stopped receiving active duty paychecks, that Major Thomas decided to present himself to military authorities in Texas, he said, to “get this thing settled.” There is no indication in the record that Thomas could not have taken this minimal step to “get this thing settled” in July 1982 and thereby avoided any AWOL determination. For this court to validate Major Thomas’ action — or inaction — would require us to ignore the Army’s unique nature and sanction an administrative nightmare for the military. As the Switkes court warned:

All things considered, it is beyond the realm of imagination that any military force in the world could function effectively if individual officers or enlisted men could choose, unilaterally, to which posts they will report and to which not. Or which orders they will obey and which not.

480 F.2d at 848 (footnote omitted).

Therefore, the district court’s judgment ordering the Board to expunge all references to “administrative AWOL” in Major Thomas’ military records and awarding him pay and appurtenant benefits for the period he was AWOL is reversed and the Board’s original “administrative AWOL” determination is reinstated.¹³

Ill

Finally, the Board determined that the several actions purporting to place Thomas in DFRA and deserter status were, as the Army itself concedes, illegal and null, but nonetheless refused to expunge these references from Thomas’ military records. The Board’s duty is to correct injustice, and it cannot refuse to do so when the record contains derogatory designations that are so incorrect as to be unlawful or are unsupported by substantial evidence. See Yee v. United. States, 512 F.2d 1383, 1387, 206 Ct.Cl. 388 (1975).

The Board’s refusal to correct Thomas’ records as to DFRA and desertion was arbitrary and capricious and contrary to law. That portion of the district court’s judgment ordering the Board to expunge these references is affirmed.

CONCLUSION

The district court judgment, to the extent it addresses AR 630-10, Major Thomas’ AWOL designation, and the award of pay or other benefits to Major Thomas for the period July 22, 1982, to April 10, 1983, is reversed. We affirm, however, the district court’s order that the Board expunge all references to DFRA and deserter charges from Thomas’ records.

AFFIRMED-IN-PART,

REVERSED-IN-PART

COSTS

Each party is to bear its own costs.

1 . Although the record indicates that Ondecker and Thomas discussed, inter alia, his "relief from Southwest,” we have found insufficient evidence to support the district court's finding that Ondecker orally relieved Thomas from reporting in any fashion to Southwest. Accordingly, as discussed below, that finding is overturned as clearly erroneous. A more plausible reading of the record indicates that Ondecker and Thomas discussed Thomas’ being relieved of any duty to report to Southwest only in the context of reassignment. As the Board found, “[t]here is no evidence available to indicate that anyone told [Thomas] to return to his home and wait for a resolution of his case.”

Even in the face of the Army’s continued position that he was not relieved from Southwest, Thomas failed to make any assertions, either in his briefs or at oral argument here, to the contrary. Indeed, Major Thomas explained

to the district court that he returned home completely on his own initiative. As Thomas stated in his district court complaint, he believed he was under no "legal obligation to search for” an Army official to validate his decision to return home, and, the decision to leave Southwest for Tulsa, was, he admitted, an act of "personal initiative.” Jt.App. at 20.

In any event, only written orders, not oral promises, can supersede previously issued written orders. Major Thomas recognized this. In his August 4 letter to Colonel Fleming, written almost two weeks before his interview with On-decker, Thomas demanded that all "future communication be strictly formal, strictly written, strictly hardball.” Thus, Thomas' assertion, quoted by the dissent, that Colonel Ondecker relieved him on behalf of the Secretary of the Army, even if credited, cannot be correct.

2 . The dissent correctly notes this appeal encompasses many issues and forms of relief. However, the dissent wrongly assumes that service credits accrued during the nine-month period in question are not primary issues. Both the Board and the district court devoted considerable attention to these issues, and, contrary to the dissent’s assertion, the Army, as appellant, has framed its appeal as whether it may make administrative determinations that a service member was absent without leave and "therefore not entitled to pay or benefits for that ... period.” As the Army argues, it is appealing a decision invalidating the use of a regulation designed to "protect the public treasury.”

3 . The criminal offense of AWOL is defined by the Uniform Code of Military Justice:

Any member of the armed forces who, without authority—

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed;

shall be punished as a court-martial may direct.

10 U.S.C. § 886 (1988).

4 . Contrary to the view expressed by the district court, the regulation is not limited to commanders of troop units, but extends to all Army commanders with personnel administration responsibilities. Thus, authority to classify soldiers AWOL is not nullified even if Major Thomas did not have a "unit commander.”

5 .The district court was plainly incorrect in assuming that simple administrative determinations that a service member was absent from military control and therefore not entitled to pay and/or other renumerative benefits must include the same panoply of due process rights as that provided in a criminal court-martial proceeding. In a criminal AWOL court-martial trial, a service member’s life or liberty interest is in jeopardy, clearly implicating the necessity of due process safeguards. In Major Thomas' case, the “punishment" meted out is simply a determination that he was ineligible for benefits covering the period in which he was AWOL. To require that every time the Army — basically acting in its capacity as an employer — makes a determination to "dock" an employee’s wages or benefits for inexcusable absence, a universe of procedural due process rights arises equal to that in a criminal proceeding, would turn due process on its head. Contrary to the district court’s assumption, Major Thomas was not court-martialed, administratively or otherwise. He did not face criminal penalties. Nor did he receive a "stigma-type discharge” which may have triggered a different set of procedural concerns; Major Thomas was apparently allowed to return to the inactive reserve status. Since there was no indication that Thomas was separated from the Army and since the district court explicitly concluded that Thomas “should not ... forfeit retirement or other benefits,” we can only conclude that his only loss was those benefits which would have accrued during the AWOL period. If his records now bear any stigma, it is the result of a correct and fair finding that Major Thomas was absent without leave for the period in question. Thomas’ records only show that he was administratively AWOL for nine months and that he was not entitled to pay or other benefits for that period. It is clearly similar to any report maintained by a non-military employer that records an employee’s permitted and unexcused absences and their effects on the employee’s wages and benefits. There is no indication from the record that Thomas was dishonorably discharged or that he received any other type of a "stigma-bearing” separation from the Army. We cannot, therefore, adopt the dissent’s view that this simple administrative notation is the equivalent of “DFRA,” "deserter" or other derogatory discharge entries. Contrary to the dissent’s contention, the records are not “erroneous,” and while they may contain unfavorable information, its inclusion is not unfair.

6 . Only if the Army had requested us to review whether, once Thomas voluntarily requested reassignment, the fifty-mile limitation was waived, would we turn to the issue of the validity of the reassignment orders and Thomas’ obligations under them. At this point, it is unclear why the Fort Bragg or Eustis reassignment orders were invalid, but, since the Army concedes that they were, we will not question that assumption.

7 . In light of these two sets of valid orders, which were both before the district court, it is surprising that the dissent concludes: "There is no support in the record for a conclusion other than that reached by the district court; that Thomas was relieved at [Southwest].” (emphasis added).

8 . The dissent points to the fact that Thomas' records originally did not "carr[y him] as AWOL from [Southwest],” but instead from Fort Bragg. Clearly this resulted from Army officials, at that time, believing (wrongly) that the superseding Fort Bragg orders were valid. Whatever the reason, however, the existence of this notation is not probative. This case was initiated to correct military records. That we, along with the dissent, have ordered portions expunged and corrected, underscores the record-keeping confusion, admitted by the Army, surrounding Major Thomas’ absence. Simply because an Army clerk entered that Thomas was AWOL from a place different than Southwest is no more probative than the "deserter” or "DFRA” notation to the issue of whether Thomas was administratively absent without leave.

9 .The dissent suggests that the evidence of his AWOL status for the nine months in dispute “must be considered” in light of Major Thomas' long record of service and observes that his record was one of distinction. However, section 503(a) and the case law are clear: Once a service member is found avoidably AWOL, the Army has no discretion to consider his or her prior service before withholding pay and service credits.

The dissent cites Midgett v. United States, 603 F.2d 835, 221 Ct.Cl. 171 (1979) for support. However, that case can easily be distinguished on its unique factual background. In Midgett, the service member was deceased and, unlike Thomas, was therefore unable to present his case before the Board. Instead, Midgett’s family, along with counsel, developed additional evidence — to be used along with Midgett's service record — that Midgett had died in conflict and thus could not be, as his military records indicated, a "deserter” — a stigma-type discharge, quite unlike the administrative pay and benefits determination at issue here.

10 .AR 630-10 sets out three factors to be considered "before an unauthorized absence may be excused as unavoidable ...

(1) The absence was not caused by the member’s own misconduct, and

(2) The member acted prudently and responsibly as can be expected to avoid the absence, and

(3) Representatives of the Army also acted prudently and responsibly as can be expected to avoid the absence. (Emphasis added.)”

AR 630-10 ¶ l-9.b. (Jan. 15, 1980).

11 . Although the dissent describes the Army’s action as "based entirely on the retroactive administrative determination that Thomas was AWOL from Fort Bragg ” (emphasis added), it is plain that the Army argues that Thomas was correctly found absent without leave from Southwest and from military control.

12 . Thus, the Board’s finding that he failed to act after July 22, 1982 is incorrect as to the first few weeks but indisputably correct for the rest of the nine-month period.

13 . The dissent asserts that we ignore "clear and established” law in ruling that Thomas, because he was avoidably AWOL, is not entitled to pay or benefits for that period. The dissent correctly notes that "military pay is fixed by statute and depends on the member’s status, not his or her actual service” (emphasis added). But the Army is not arguing that Thomas is ineligible for military pay and benefits because he did not teach Military Science at Southwest, or perform duties at Fort Bragg, Fort Eustis or Fort Knox. Instead it correctly contends that, by unilaterally leaving Southwest, Thomas not only left his assigned place of duty, but, for purposes of awarding pay and other benefits, he also left the Army. See Switkes, 480 F.2d at 846 (AWOL is a classification different from active duty).

The dissent relies heavily on Bates v. United States, 453 F.2d 1382, 197 Ct.Cl. 35 (1972). Although in Bates the court was concerned with the proper type of "leave” classification (in this case, "excess leave”), there was no question Bates had been granted "leave.” Thomas, however, was absent without leave. The dissent notes that, like Thomas, Bates remained at home. But where Thomas was is not relevant to our disposition, only where he was not. Nor is it relevant to our disposition that Thomas collected military paychecks, although we do question the dissent’s assertion that Thomas "could not afford" to remain at Southwest even though he continued to receive, without interruption, his full salary.

Also cited for support by the dissent are Mid-gett v. United States, 603 F.2d 835, 221 Ct.Cl. 171 (1979), Duhon v. United States, 461 F.2d 1278, 198 Ct.Cl. 564 (1972) and Clackum v. United States, 296 F.2d 226, 148 Ct.Cl. 404 (1960). However, those cases deal with a failure to remedy errors in a service member’s records, while here, we have found that the "administrative AWOL” notation was correct.