B-151118, APR. 3, 1963

B-151118, APR. 3, 1963

TO LIEUTENANT COLONEL RICHARD N. ROLLASON, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1963, FORWARDED TO US BY THE HONORABLE JOEL T. BROYHILL, HOUSE OF REPRESENTATIVES, IN WHICH YOU REQUEST PAYMENT OF THE RETIRED PAY WHICH HAS BEEN WITHHELD FROM YOU FOR THE PERIOD OCTOBER 1, 1962, TO JANUARY 31, 1963, BY REASON OF APPLICATION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. YOU ALLEGE THAT YOUR STATUS SINCE MARCH 14, 1958, AS A MEMBER OF THE RETIRED RESERVE ENTITLES YOU TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS CITED ABOVE.

THE DEPARTMENT OF THE ARMY HAS FURNISHED A REPORT SHOWING THAT YOU SERVED AS AN ENLISTED MAN IN THE NEW JERSEY NATIONAL GUARD, THEN AS AN ENLISTED MAN IN THE REGULAR ARMY FROM JUNE 13, 1939, TO JANUARY 12, 1942, ON WHICH DATE YOU WERE HONORABLY DISCHARGED TO ACCEPT AN APPOINTMENT AS SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES. YOU SERVED ON ACTIVE DUTY AS A COMMISSIONED OFFICER CONTINUOUSLY FROM JANUARY 13, 1942, TO MARCH 14, 1958, WHEN YOU WERE RELEASED FROM ACTIVE DUTY AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AS A LIEUTENANT COLONEL UNDER 10 U.S.C. 1202 AND 1372.

ON APRIL 30, 1954, PURSUANT TO THE PROVISIONS OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 906, 10 U.S.C. 506D (1952 ED.), YOU WERE PROMOTED TO THE TEMPORARY GRADE OF LIEUTENANT COLONEL IN THE ARMY OF THE UNITED STATES, IN WHICH GRADE YOU WERE SERVING AT THE TIME OF YOUR RETIREMENT. IT IS PROVIDED IN 10 U.S.C. 1372 THAT, UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, A MEMBER WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IS ENTITLED TO THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THAT LIST.

ALTHOUGH YOU WERE APPOINTED A MAJOR IN THE OFFICERS' RESERVE CORPS ON JULY 30, 1947, AND CONTINUED TO HOLD A RESERVE COMMISSION THEREAFTER, IT APPEARS THAT YOU NEVER SERVED ON ACTIVE DUTY UNDER YOUR RESERVE COMMISSION, BUT CONTINUED SERVING UNDER YOUR TEMPORARY APPOINTMENTS. THE TIME OF YOUR RETIREMENT YOU HELD THE RESERVE GRADE OF LIEUTENANT COLONEL, TO WHICH YOU HAD BEEN PROMOTED ON NOVEMBER 12, 1955, ALTHOUGH YOU HAD BEEN SERVING AS, AND PRESUMABLY RECEIVING THE PAY AND ALLOWANCES OF, A LIEUTENANT COLONEL SINCE APRIL 30, 1954, PURSUANT TO YOUR TEMPORARY APPOINTMENT. YOUR RIGHT TO RETIRED PAY COMPUTED ON THE GRADE OF LIEUTENANT COLONEL, THEREFORE, ACCRUED INDEPENDENTLY OF ANY RESERVE STATUS HELD BY YOU.

THE RECORD ALSO SHOWS THAT ON NOVEMBER 1, 1954, WHILE SERVING ON ACTIVE DUTY AS A LIEUTENANT COLONEL UNDER YOUR TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES, YOU WERE APPOINTED A WARRANT OFFICER, JUNIOR GRADE, IN THE REGULAR ARMY AND ON DECEMBER 11, 1954, YOU WERE PROMOTED TO CHIEF WARRANT OFFICER, W-3, IN THE REGULAR ARMY. YOUR REGULAR ARMY APPOINTMENT WAS VACATED ON MARCH 14, 1958, SIMULTANEOUSLY WITH TERMINATION OF YOUR ARMY OF THE UNITED STATES TEMPORARY APPOINTMENT.

YOUR RIGHT TO RETIRED PAY VESTED UPON THE DETERMINATION BY THE SECRETARY OF THE ARMY THAT YOU WERE PHYSICALLY UNFIT TO PERFORM THE DUTIES OF YOUR GRADE OR RANK AND TERMINATION OF THE APPOINTMENT IN WHICH YOU WERE SERVING WHEN YOU BECAME PHYSICALLY UNFIT DID NOT DIVEST YOU OF THAT RIGHT.

AS YOU ADVISED IN OUR LETTER OF JANUARY 8, 1963, THE COURT OF CLAIMS HAS ESTABLISHED THE RULE THAT EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION APPLIES TO A MEMBER'S RETIRED PAY ONLY IF HE EARNED THE RIGHT TO THAT RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT OR BY REASON OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT. IF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT HAD NO BEARING ON HIS RIGHT TO RETIRED PAY, IT WILL HAVE NO BEARING ON HIS RIGHT TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION. WATMAN V. UNITED STATES, CT.CL. NO. 189-59, DECIDED MARCH 1, 1961, AND GRADALL V. UNITED STATES, CT.CL. NO. 4-60, DECIDED MAY 9, 1962. SINCE THE OFFICIAL RECORDS NOW IN THE FILE SHOW THAT YOUR RIGHT TO RETIRED PAY IS BASED SOLELY OF YOUR SERVICE AS A COMMISSIONED OFFICER UNDER TEMPORARY APPOINTMENTS MADE PURSUANT TO THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, THERE IS NO BASIS FOR CONCLUDING THAT YOU ARE ENTITLED TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION AND PAYMENT OF YOUR CLAIM IS NOT AUTHORIZED.