Entitlement to Refund of Deductions Made From Military Retired Pay

A retired Navy officer employed as a civilian by the Federal Government questioned the legality of a reduction in his retired military pay. The retiree stated that as a resident of California, a community property State, one-half of his military retired pay belonged to his wife. He contended that since only one-half of his retired pay was his, the reduction was for application to that portion only. The Dual Compensation Act states that a retired officer of a regular component of the uniformed service employed as a civilian by the Federal Government is not entitled to receive retired pay at the same rate as he would be entitled if he were not so employed. Congress has limited the amount of retired pay to be paid retired regulars who are employed in Federal positions. This law must govern over any provision of State law which might otherwise defeat its purpose. Therefore, the fact that under a State community property law the spouse of the retiree is considered to be entitled to part of the retired pay does not permit that part of the retired pay to be excluded from dual compensation reduction since Federal law controls payment of such pay. Accordingly, the retiree was not entitled to any additional amount predicated on the fact that he resided in a State which has a community property law.