B-145271, MAY 12, 1969

B-145271, MAY 12, 1969

TO FIRST LIEUTENANT J. P. FITZGERALD, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 27, 1969, INVITING ATTENTION TO OUR DECISION TO YOU OF MAY 19, 1961, B-145271, AND REQUESTING THAT YOU BE INFORMED BY MEANS OF A "COMPTROLLER DECISION" WHETHER YOU "CAN COUNT MY TIME IN THE ARMY AS TIME FOR CIVIL SERVICE RETIREMENT.'

WE ADVISED YOU IN OUR DECISIONS OF MAY 2, 1961, MAY 19, 1961, AND JUNE 14, 1961, B-145271, THAT THERE WAS NO PROVISION OF LAW IN EFFECT DURING THE PERIOD OF YOUR EMPLOYMENT IN THE CIVILIAN POSITION WHICH EXEMPTED YOU FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (1946 ED.) AND THAT THE HOLDING IN THE CASE OF WATMAN V UNITED STATES, 152 CT.CL. 769 (1961), HAD NO APPLICATION TO YOUR CASE.

THE CONCLUSION REACHED IN THOSE DECISIONS WAS CORRECT UNDER THE RULE THEN BEING FOLLOWED, TO THE EFFECT THAT IN APPLYING THE LIMITATION OF $3,000 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT IT WAS THE COMBINED RATE OF COMPENSATION WHICH CONTROLLED IRRESPECTIVE OF THE NUMBER OF HOURS OR DAYS OF WORK IN THE CIVILIAN OFFICE OR POSITION. THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR WAS NOT A DETERMINING FACTOR. HOWEVER, SUBSEQUENT TO OUR DECISION THE COURT OF CLAIMS IN THE CASE OF DELLINGER V UNITED STATES, 157 CT.CL. 471 (1962), DECIDED THAT IN DETERMINING A GOVERNMENT EMPLOYEE'S RIGHTS UNDER 5 U.S.C. 59A HIS TOTAL COMPENSATION FROM HIS CIVILIAN GOVERNMENT EMPLOYMENT AND HIS MILITARY RETIRED PAY FOR A CALENDAR YEAR SHOULD BE USED, AND IF HIS COMBINED INCOME FROM BOTH SOURCES IN A CALENDAR YEAR DID NOT EXCEED THE STATUTORY LIMIT OF THE ECONOMY ACT, HE WAS ENTITLED TO RECEIVE BOTH TYPES OF PAY. PREVIOUSLY, THE COURT HAD HELD IN THE CASE OF SCHUYLER V UNITED STATES, 148 CT.CL. 479 (1960), THAT THE STATUTE WAS INAPPLICABLE IN CASES WHERE THE ACTUAL CIVILIAN PAY PLUS RETIRED PAY IN ONE YEAR AMOUNTED TO LESS THAN THE STATUTORY LIMITATION.

IN OUR DECISION OF AUGUST 2, 1962, B-149203, 42 COMP. GEN. 71, WE DECIDED TO ACCEPT AND FOLLOW THE COURT'S DECISIONS IN THE SCHUYLER AND DELLINGER CASES. ACCORDINGLY, SINCE IT APPEARS THAT YOUR CIVILIAN EARNINGS AS A GOVERNMENT EMPLOYEE PLUS YOUR RETIRED PAY DURING EACH OF THE CALENDAR YEARS 1944 AND 1945 DID NOT EXCEED $3,000, YOU ARE ENTITLED TO FULL PAYMENT OF YOUR MILITARY RETIRED PAY AND OUR CLAIMS DIVISION IS BEING INSTRUCTED TO ALLOW YOUR CLAIM FOR THE RETIRED PAY WITHHELD FOR THE PERIOD JULY 6, 1944, TO JANUARY 6, 1945.

IN REGARD TO YOUR REQUEST FOR A DECISION AS TO WHETHER YOU CAN "COUNT MY TIME IN THE ARMY AS TIME FOR CIVIL SERVICE RETIREMENT," YOU ARE ADVISED THAT 5 U.S.C. 8332 PROVIDES IN PERTINENT PART THAT:

"/C) * * * AN EMPLOYEE * * * SHALL BE ALLOWED CREDIT FOR PERIODS OF MILITARY SERVICE BEFORE THE DATE OF THE SEPARATION ON WHICH TITLE TO ANNUITY IS BASED. HOWEVER, IF AN EMPLOYEE * * * IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE, HIS MILITARY SERVICE MAY NOT BE CREDITED UNLESS THE RETIRED PAY IS AWARDED-- "/1) ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY--

"/A) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES; OR

"/B) CUASED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR * * *. "/2) UNDER CHAPTER 67, OF TITLE 10.'

ALSO, IT IS PROVIDED IN PARAGRAPH F OF SECTION S3-5, FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1, UNITED STATES CIVIL SERVICE COMMISSION, THAT AN EMPLOYEE OR ANNUITANT WHO IS IN RECEIPT OF MILITARY RETIRED PAY, WHICH BARS CREDIT FOR MILITARY SERVICE AS INDICATED IN THE ABOVE-QUOTED PROVISIONS OF LAW, MAY ELECT TO WAIVE THE RETIRED PAY AND HAVE HIS MILITARY SERVICE ADDED TO HIS CIVILIAN SERVICE.

WITH RESPECT TO YOUR STATEMENT THAT NATIONAL GUARD OFFICERS AND RESERVE OFFICERS CAN "COUNT THEIR TIME IN THE ARMY AS RETIREMENT TIME IN CIVIL SERVICE," IT APPEARS THAT THE PERSONS TO WHOM YOU REFER ARE THOSE WHO HAVE BEEN GRANTED RETIRED PAY FOR AGE AND LENGTH OF SERVICE UNDER CHAPTER 67, TITLE 10, U.S. CODE, AND THUS ARE COVERED BY 5 U.S.C. 8332 (C) (2). YOU WERE RETIRED FOR DISABILITY UNDER THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1940 ED.).

IF YOU DESIRE ANY FURTHER INFORMATION CONCERNING YOUR CIVILIAN RETIREMENT STATUS, YOUR INQUIRY SHOULD BE ADDRESSED TO THE UNITED STATES CIVIL SERVICE COMMISSION, BUREAU OF RETIREMENT AND INSURANCE, 1900 E STREET, N. W., WASHINGTON, D. C. 20415.