B-144919, APR. 12, 1963

B-144919, APR. 12, 1963

TO ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

YOUR LETTER OF NOVEMBER 23, 1962, REQUESTED A DECISION WHETHER IN VIEW OF LIMITATIONS IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, MR. JOSE FUENTES IS ENTITLED TO HIS SALARY AS A CIVILIAN EMPLOYEE OF THE HOUSING AND HOME FINANCE AGENCY IN ADDITION TO HIS RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN THE ARMY.

IN OUR DECISION OF FEBRUARY 8, 1962, B-144919, 41 COMP. GEN. 533, WE CONCLUDED THAT SINCE MR. FUENTES' MILITARY RECORDS, AS CORRECTED, SHOW THAT HE WAS RETIRED AS AN ENLISTED MAN AND NOT AS A WARRANT OFFICER, THERE IS NO LEGAL BASIS TO QUESTION THE LEGALITY OF HIS CIVILIAN EMPLOYMENT UNDER THE PROVISIONS OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62.

UNDER THE PROVISIONS OF PRIVATE LAW 87-649, APPROVED OCTOBER 15, 1962, AND ITS LEGISLATIVE HISTORY WE HAVE CONCLUDED THAT IN ENACTING SUCH LEGISLATION THE CONGRESS INTENDED TO RELIEVE MR. FUENTES FROM "ALL LIABILITY" TO THE UNITED STATES FOR THE RETURN OF ANY SALARY OR RETIRED PAY WHICH MIGHT HAVE BEEN PAID HIM FOR THE PERIOD NOVEMBER 3, 1955, THROUGH MARCH 3, 1961, IN CONTRAVENTION OF THE PROVISIONS OF SECTIONS 59A AND 62, TITLE 5, OF THE U.S.C. THEREFORE, HE MAY RETAIN THE AMOUNT OF RETIRED PAY PAID HIM AS A COMMISSIONED OFFICER FOR THIS PERIOD IN ADDITION TO HIS SALARY AS A CIVILIAN EMPLOYEE OF THE HOUSING AND HOME FINANCE AGENCY, IF OTHERWISE CORRECT.

ADDITIONAL INFORMATION RECENTLY FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT MR. FUENTES WAS APPOINTED A LIEUTENANT COLONEL IN THE OFFICERS' RESERVE CORPS ON APRIL 15, 1948. WHEN HE WAS RETIRED ON OCTOBER 31, 1950, HE WOULD HAVE BEEN ELIGIBLE TO RETIRE IN THAT GRADE, AS A RESERVE OFFICER, UNDER THE PROVISIONS OF SECTION 202 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1084, BUT FOR THE FACT THAT HE HAD COMPLETED OVER 30 YEARS OF ACTIVE FEDERAL SERVICE AT THE TIME. UNDER THE PROVISONS OF SECTION 2 OF THE ACT OF MAY 31, 1956, CH. 348, 70 STAT. 222, HE WAS ADVANCED ON THE RETIRED LIST TO HIS RESERVE GRADE OF LIEUTENANT COLONEL, EFFECTIVE JUNE 1, 1956. THE LEGISLATIVE HISTORY OF THAT ACT SHOWS THAT THE PURPOSE OF SECTION 2 WAS TO PERMIT THOSE INDIVIDUALS WHO HAD COMPLETED MORE THAN 30 YEARS OF SERVICE "AND RETIRED BETWEEN JUNE 29, 1948, AND AUGUST 1, 1953, TO BE RETIRED IN A COMMISSIONED STATUS.' SEE S.REPT. 2019, 84TH CONG., 2D SESS. 5. HENCE, IT APPEARS THAT THE RETIRED OFFICER'S RETIRED PAY PAID HIM IN THE GRADE OF LIEUTENANT COLONEL MUST BE CONSIDERED AS RECEIVED UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED FORCES AND THUS COVERED BY THE EXEMPTION PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, AND AS NOW CODIFIED IN SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (C). THEREFORE, THE SALARY AND RETIRED PAY PAID HIM ON AND AFTER JUNE 1, 1956, ARE EXEMPT FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED. SEE B- 136459, JULY 9, 1962, 42 COMP. GEN. - .

REGARDING THE MATTER OF PAYMENT FOR THE EMPLOYEE'S ACCRUED LEAVE DUE HIM AS A CIVILIAN EMPLOYEE ON MARCH 4, 1961, SEE 26 COMP. GEN. 102, 27 COMP. GEN. 686 AND 36 COMP. GEN. 18.