B-143407, AUG. 14, 1961

B-143407, AUG. 14, 1961

TO LIEUTENANT COLONEL ERVIN A. SCHULTZ, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 6 AND JULY 25, 1961, RELATIVE TO OUR CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 24, 1961, WHICH DISALLOWED A PORTION OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY BECAUSE OF THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM IS BASED ON THE COURT'S DECISION IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189 59, DECIDED MARCH 1, 1961. IN THAT CASE, THE COURT REGARDED WATMAN'S INACTIVE STATUS IN THE OFFICERS' RESERVE CORPS AS HAVING NOTHING TO DO WITH THE MATTER THERE INVOLVED AND CONCLUDED THAT THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, 729, GRANTING TO PERSONS APPOINTED AS OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE PROVISIONS OF THAT ACT, THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE," HAD THE EFFECT OF CONFERRING ON HIM THE EXEMPTION FROM THE RESTRICTIONS OF THE ECONOMY ACT GRANTED TO MEMBERS OF THE OFFICERS' RESERVE CORPS UNDER THE ACT OF JULY 1, 1947, 61 STAT. 238. WATMAN, LIKE YOU, WAS SERVING AS AN OFFICER IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME HE WAS GRANTED RETIRED PAY. SPECIFICALLY, THE COURT HELD THAT "UPON RECONSIDERATION, WE REAFFIRM OUR DECISION IN SARLES AND HOLD THAT MEMBERSHIP IN THE REQUIRED UNIT AT THE TIME OF RETIREMENT IS THE DECISIVE FACT AND THAT RIGHTS ACQUIRED AT THAT TIME WERE NOT INTENDED TO BE TAKEN AWAY BY SUBSEQUENT LOSS OF SUCH MEMBERSHIP.'

IT APPEARS THAT, UNDER THE RULE OF THE WATMAN CASE, THE DUAL COMPENSATION EXEMPTION RIGHTS OF PERSONS SERVING ON ACTIVE DUTY AS TEMPORARY OFFICERS IN THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF RETIREMENT WOULD BE DETERMINED ON THE BASIS OF THE TEMPORARY STATUS HELD BY THEM AS MEMBERS OF THE ARMY OF THE UNITED STATES OR THE AIR FORCE OF THE UNITED STATES, AND THAT AN INACTIVE RESERVE STATUS AT THAT TIME WOULD BE OF NO SIGNIFICANCE. THE ACT OF SEPTEMBER 22, 1941, WAS REPEALED EFFECTIVE JULY 1, 1948, BY SECTION 2 OF THE ACT OF JULY 25, 1947, 61 STAT. 451. IT APPEARS THAT IN ORDER TO INSURE THAT TEMPORARY AIR FORCE OFFICERS THEN SERVING ON ACTIVE DUTY WOULD BE RETAINED IN THAT STATUS PARAGRAPH 11, SPECIAL ORDERS NO. 128, DEPARTMENT OF THE AIR FORCE, DATED JUNE 30, 1948, DIRECTED THAT THE TEMPORARY APPOINTMENTS, OF ALL OFFICERS SO SERVING IN THE SAME OR HIGHER GRADES THAN THEIR PERMANENT GRADES, BE CONTINUED IN EFFECT UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 907, AS THOUGH THEY WERE APPOINTED THERETO UNDER SECTION 515 OF THE ACT.

YOUR ATTENTION IS INVITED TO THE SIGNIFICANT DIFFERENCE IN THE PERTINENT PROVISIONS OF THE 1941 ACT, UNDER WHICH YOU RECEIVED YOUR ORIGINAL TEMPORARY APPOINTMENT, AND THE PROVISIONS RELATING TO APPOINTMENTS IN THE ARMY OF THE UNITED STATES AND AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947. SEE, IN THIS CONNECTION, SECTION 515 (H) OF THE 1947 ACT, 61 STAT. 908 (NOW CODIFIED IN 10 U.S.C. 8491 WITH RESPECT TO AIR FORCE PERSONNEL). WHILE THE 1941 ACT GRANTED TEMPORARY OFFICERS APPOINTED UNDER THAT ACT "THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS," THE RIGHTS, PRIVILEGES AND BENEFITS GRANTED TO OFFICERS APPOINTED UNDER SECTION 515 OF THE 1947 ACT (SEE CHAPTER 839, 10 U.S. CODE, FOR PROVISIONS APPLICABLE TO AIR FORCE CHAPTER 839, 10 U.S. CODE, FOR PROVISIONS APPLICABLE TO AIR FORCE PERSONNEL CURRENTLY IN EFFECT) ARE THOSE WHICH ACCRUE WHILE SERVING ON ACTIVE DUTY. BEING LIMITED TO ACTIVE DUTY SITUATIONS, THE LETTER PROVISIONS WOULD NOT APPEAR TO EXCEPT THE RETIRED PAY OF ARMY OF THE UNITED STATES OR AIR FORCE OF THE UNITED STATES OFFICERS WHO WERE APPOINTED THEREUNDER, FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED.

THERE IS ENCLOSED A COPY OF OUR DECISION, B-136459, MAY 18, 1961, TO WHICH YOU REFER AND IN WHICH THE POSITION OF THIS OFFICE CONCERNING THE WATMAN CASE IS STATED. AS YOU WILL NOTE THAT DECISION FURNISHES AS BASIS FOR THE PAYMENT OF YOUR CLAIM. IT APPEARING THAT THE TEMPORARY APPOINTMENT UNDER WHICH YOU WERE SERVING AT THE TIME OF YOUR RETIREMENT WAS RECEIVED UNDER THE 1947 ACT, THERE IS NO AUTHORITY FOR THE PAYMENT OF ANY ADDITIONAL RETIRED PAY TO YOU. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 24, 1961, IS SUSTAINED.