B-141178, NOV. 30, 1959
Highlights
THE RECORD SHOWS THAT YOU WERE RELEASED FROM ACTIVE DUTY AS AN OFFICER IN THE U.S. YOU WERE TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY EFFECTIVE NOVEMBER 1. THAT NO PERSON HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION WAS ENTITLED TO RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AT A RATE IN EXCESS OF AN AMOUNT WHICH. UNTIL THAT ACT WAS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952. INASMUCH AS YOU WERE RETIRED AS A MEMBER OF THE MARINE CORPS RESERVE. YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT DURING THE PERIOD OF YOUR CLAIM. DOES NOT APPEAR TO HAVE ANY BEARING ON YOUR CLAIM. WARTHEN WAS A FORMER MEMBER OF THE OFFICERS' RESERVE CORPS (ARMY) WHO HAD RESIGNED HIS COMMISSION THEREIN AND MR.
B-141178, NOV. 30, 1959
TO LIEUTENANT COLONEL HENDERSON A. MELVILLE, USMCR, RETIRED:
YOUR LETTER OF OCTOBER 16, 1959, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 30, 1958, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD JUNE 15, 1945, TO OCTOBER 15, 1952. YOU REFER TO CERTAIN UNNAMED UNITED STATES COURT OF CLAIMS DECISIONS AND OUR DECISION OF MAY 1, 1959, B-135719, 38 COMP. GEN. 741.
THE RECORD SHOWS THAT YOU WERE RELEASED FROM ACTIVE DUTY AS AN OFFICER IN THE U.S. MARINE CORPS RESERVE ON JUNE 15, 1945; AND THAT ON OCTOBER 28, 1948, YOU WERE TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY EFFECTIVE NOVEMBER 1, 1948, WITH THE RANK OF LIEUTENANT COLONEL, PURSUANT TO THE PROVISIONS OF TITLE 34, U.S.C. (1946 ED.), SECTIONS 417 AND 855C-1 AND TITLE 38, U.S.C. (1946 ED.), SECTION 6931.
BY SETTLEMENT OF OCTOBER 30, 1958, OUR CLAIMS DIVISION DENIED YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD JUNE 15, 1945, TO OCTOBER 15, 1952, SINCE THE ANNUAL RATE OF YOUR CIVILIAN COMPENSATION AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, BUREAU OF INTERNAL REVENUE, EXCEEDED THE $3,000 PER YEAR DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, THUS PRECLUDING YOU FROM RECEIVING SUCH RETIRED PAY.
SECTION 212 OF THE ECONOMY ACT OF 1932, AS THEN AMENDED, PROVIDED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT NO PERSON HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION WAS ENTITLED TO RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM HIS CIVILIAN OFFICE OR POSITION, EXCEEDED $3,000 PER YEAR.
THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, THAT THE PROVISIONS OF SECTION 1 (B), OF THE ACT OF JULY 1, 1947, 61 STAT. 239, RELATING TO "ANY MEMBER OF THE OFFICERS' RESERVE CORPS," EXEMPTED THE PLAINTIFF, A RETIRED MEMBER OF THE OFFICERS' RESERVE CORPS, FROM THE DUAL COMPENSATION RESTRICTIONS OF THE 1932 ECONOMY ACT. HOWEVER, RETIRED MEMBERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE DID NOT BECOME ENTITLED TO THE BENEFITS OF THE ACT OF JULY 1, 1947, UNTIL THAT ACT WAS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, EFFECTIVE JANUARY 1, 1953, TO COVER "RESERVE COMPONENTS OF THE ARMED FORCES.' INASMUCH AS YOU WERE RETIRED AS A MEMBER OF THE MARINE CORPS RESERVE, YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT DURING THE PERIOD OF YOUR CLAIM.
OUR DECISION OF MAY 1, 1959, B-135719, 38 COMP. GEN. 741, WHICH STATED THAT THIS OFFICE WOULD FOLLOW THE COURT OF CLAIMS DECISIONS IN FAVOR OF THE PLAINTIFF IN THE CASE OF SARLES V. UNITED STATES, C.C.S.NO. 353-56, DECIDED MARCH 5, 1958, AND PLAINTIFF NO. 5, NATHAN REED WARTHEN, IN THE CASE OF BOWMAN, ET AL. V. UNITED STATES, C.CLS.NO. 108-58, DECIDED JANUARY 14, 1959, DOES NOT APPEAR TO HAVE ANY BEARING ON YOUR CLAIM. THE HOLDINGS IN THOSE CASES MERELY EXTENDED THE RULE OF THE TANNER CASE, SO AS TO EXEMPT FORMER RESERVE OFFICERS AND FORMER NATIONAL GUARD OFFICERS FROM THE DUAL COMPENSATION RESTRICTIONS IN SECTION 212 OF THE ECONOMY ACT OF 1932. MR. WARTHEN WAS A FORMER MEMBER OF THE OFFICERS' RESERVE CORPS (ARMY) WHO HAD RESIGNED HIS COMMISSION THEREIN AND MR. SARLES WAS A FORMER NATIONAL GUARD OFFICER WHO HAD BEEN DISCHARGED. THERE APPEARS TO BE NOTHING IN THOSE CASES OR OTHER COURT OF CLAIMS DECISIONS WHICH INDICATES THAT THE EXEMPTION FROM SECTION 212 OF THE ECONOMY ACT OF 1932 GRANTED TO MEMBERS AND FORMER MEMBERS OF THE OFFICERS' RESERVE CORPS AND THE NATIONAL GUARD BY SECTIONS 1 (B) AND 2, ACT OF JULY 1, 1947, PRIOR TO JANUARY 1, 1953, HAS BEEN EXTENDED TO RETIRED MEMBERS OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE FOR PERIODS PRIOR TO JANUARY 1, 1953. HENCE, FOR THE PERIOD JUNE 15, 1945, TO OCTOBER 15, 1952, DURING, WHICH YOUR SALARY FROM YOUR FEDERAL CIVILIAN EMPLOYMENT WAS AT A RATE EXCEEDING $3,000 PER ANNUM, YOU WERE NOT ENTITLED TO RETIREMENT PAY.