B-159945, SEPTEMBER 20, 1966, 46 COMP. GEN, 245

B-159945, SEPTEMBER 20, 1966, 46 COMP. GEN, 245

OFFICERS AND EMPLOYEES - DEATH OR INJURY - DISABILITY COMPENSATION, ETC. - MILITARY RETIRED PAY. AN ENLISTED MEMBER OF THE REGULAR AIR FORCE RETIRED UNDER 10 U.S.C. 8914 AND SUBJECT AS A MEMBER OF THE AIR FORCE RESERVE TO PERIODIC INVOLUNTARY ACTIVE DUTY PRIOR TO THE COMPLETION OF 30 YEARS' SERVICE WHO IS INJURED WHILE EMPLOYED AS A CIVILIAN MAY NOT BE REFUNDED THE RETIRED PAY WITHHELD UNDER SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757/A), PROHIBITING THE RECEIPT OF DISABILITY COMPENSATION AND ANY OTHER REMUNERATION EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED. THE MEMBER'S RETIREMENT AND RECEIPT OF RETIRED PAY CONSIDERED SEPARATE AND DISTINCT FROM RESERVIST OBLIGATIONS, HIS RETIRED PAY IS NOT COMPENSATION "FOR SERVICES ACTUALLY PERFORMED" AND WAS PROPERLY WITHHELD. PAY - RETIRED - STATUS OF PAY - DISABILITY COMPENSATION AS CIVILIAN. ALTHOUGH THE RETAINER PAY RECEIVED BY A FLEET RESERVIST IS NOT WITHIN THE CONTEMPLATION OF SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757/A), PROHIBITING THE RECEIPT OF DISABILITY COMPENSATION AND ANY OTHER REMUNERATION EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AS IT IS PAID FOR ACTUAL SERVICES, BASED PARTLY ON PREVIOUS SERVICE, AND PARTLY FOR READINESS TO SERVE ON ACTIVE DUTY, THE RETIRED PAY RECEIVED BY ENLISTED MEN WHO ARE RETIRED UNDER 10 U.S.C. 3914 AND 8914 AND CONCURRENTLY BECOME RESERVISTS SUBJECT TO PERIODIC INVOLUNTARY ACTIVE DUTY PRIOR TO COMPLETION OF 30 YEARS' SERVICE, IS WITHIN THE RESTRICTION OF SECTION 7/A), THE RETIREMENT AND RETIRED PAY SEPARATE AND DISTINCT FROM THE OBLIGATIONS OF THE RESERVE MEMBERS, THEIR RETIRED PAY IS NOT CONSIDERED COMPENSATION "FOR SERVICES ACTUALLY PERFORMED;,

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, SEPTEMBER 20, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1966, YOUR REFERENCE ALRA-1, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $156.30 IN FAVOR OF MASTER SERGEANT VINCENT F. SEKAC, REPRESENTING RETIRED PAY WITHHELD FOR THE PERIOD NOVEMBER 20 THROUGH DECEMBER 30, 1965, UNDER THE PROVISIONS OF SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757/A). YOUR REQUEST FOR DECISION WAS FORWARDED HERE ON AUGUST 24, 1966, BY THE DIRECTORATE OF ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF- 923 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT SEKAC WAS RETIRED ON AUGUST 31, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 8914 AS AN ENLISTED MEMBER OF THE REGULAR AIR FORCE WITH AT LEAST 20 BUT LESS THAN 30 YEARS' ACTIVE SERVICE. THAT SECTION PROVIDES THAT UPON RETIREMENT UNDER THAT SECTION THE ENLISTED MEMBER BECOMES A MEMBER OF THE AIR FORCE RESERVE WITH THE OBLIGATION TO PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED UNDER LAW UNTIL HIS SERVICE CREDITABLE FOR RETIREMENT PLUS HIS INACTIVE SERVICE AS A MEMBER OF THE AIR FORCE RESERVE EQUALS 30 YEARS.

IT APPEARS THAT WHILE EMPLOYED BY THE UNITED STATES POST OFFICE, SPRINGFIELD, MASSACHUSETTS, SERGEANT SEKAC SUSTAINED AN INJURY ON OCTOBER 3, 1965, AND WAS FOUND ENTITLED TO RECEIVE DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT FROM NOVEMBER 20 THROUGH DECEMBER 30, 1965. DURING THAT PERIOD RETIRED PAY WAS CONSIDERED NOT PAYABLE BECAUSE OF THE PROVISIONS OF SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, WHICH PROVIDES THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF DISABILITY COMPENSATION "HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES;,

IN MULHOLLAND V. UNITED STATES, 139 CT. CL. 507 (1957), THE COURT OF CLAIMS HELD THAT A MEMBER OF THE FLEET RESERVE (THEN A PART OF THE NAVAL RESERVE), WAS ENTITLED TO RECEIVE RETAINER PAY AS A MEMBER OF THE FLEET RESERVE SIMULTANEOUSLY WITH DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT INCIDENT TO HIS EMPLOYMENT AS A CIVILIAN EMPLOYEE OF THE UNITED STATES. THE COURT REGARDED THE RECEIPT OF DISABILITY COMPENSATION AS AN "INCIDENT" OF HIS CIVILIAN EMPLOYMENT AND CONCLUDED THAT SUCH COMPENSATION WAS "AN ALLOWANCE" OR EMOLUMENT TO WHICH HE WAS ENTITLED ON ACCOUNT OF SUCH EMPLOYMENT WITHIN THE MEANING OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, CH. 690, 52 STAT. 1176, 34 U.S.C. 853B (1946 ED.), WHICH AUTHORIZED MEMBERS OF THE NAVAL RESERVE TO RECEIVE THE PAY AND ALLOWANCES INCIDENT TO CIVILIAN GOVERNMENT EMPLOYMENT "IN ADDITION TO PAY AND ALLOWANCES" TO WHICH THEY MIGHT BE ENTITLED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT.

IN ADDITION, THE COURT IN EFFECT HELD THAT RETAINER PAY WAS PAID TO A MEMBER OF THE FLEET RESERVE PARTLY IN RETURN FOR HOLDING HIMSELF IN READINESS TO RENDER SERVICE IN TIME OF NEED FOR AS MUCH AS TWO MONTHS OUT OF EVERY FOUR YEARS IN PEACETIME, AND FOR UNLIMITED SERVICE IN NATIONAL EMERGENCY, AND THAT WHILE IT IS TRUE THAT RETAINER PAY IS BASED IN PART ON SERVICES PREVIOUSLY RENDERED IT IS ALSO PAID IN PART IN RETURN FOR THE MEMBER'S HOLDING HIMSELF IN READINESS TO RENDER SERVICE WHEN CALLED UPON AND, TO THAT EXTENT, IT IS PAID "IN RETURN FOR SERVICES ACTUALLY PERFORMED" SO AS NOT TO COME WITHIN THE PROBITITION OF SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT.

IN DECISION OF SEPTEMBER 25, 1958, 38 COMP. GEN. 243, WE SAID THAT THE HOLDING IN THE MULHOLLAND CASE MAY BE FOLLOWED AS A PRECEDENT FOR THE CONCURRENT PAYMENT OF RETAINER PAY AND DISABILITY COMPENSATION ONLY FOR PERIODS PRIOR TO JANUARY 1, 1953. ON THAT DATE THE FLEET RESERVE CEASED TO BE A PART OF THE U.S. NAVAL RESERVE AND THEREAFTER HAS BEEN REGARDED AS A COMPONENT OF THE REGULAR NAVY, IT NOT APPEARING THAT THE CHANGE IN STATUS OF THE FLEET RESERVE HAD BEEN CONSIDERED BY THE COURT IN THAT CASE.

IN THAT DECISION, HOWEVER, WE SAID THAT WE KNOW OF NO SERVICE ACTUALLY PERFORMED BY A FORMER MEMBER OF THE FLEET RESERVE RECEIVING RETIRED PAY AS A MEMBER OF THE REGULAR NAVY AFTER HIS RETIREMENT UPON COMPLETION OF 30 YEARS' SERVICE WHICH COULD BE CONSIDERED TO MEET THE CONDITIONS OF SECTION 7/A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT INSOFAR AS "SERVICES ACTUALLY ERFORMED" ARE CONCERNED. SINCE THE RETIRED PAY OF SUCH RETIRED MEMBER IS NOT "PENSION" (SEE LEMLY V. UNITED STATES, 109 CT. CL. 760 (1948/) AND IS NOT CONSIDERED TO BE PAYMENT "IN RETURN FOR SERVICES ACTUALLY PERFORMED", WE CONCLUDED THAT CONCURRENT PAYMENT TO SUCH A MEMBER OF EMPLOYEE'S DISABILITY COMPENSATION AND NAVY RETIRED PAY IS PROHIBITED BY THAT PROVISION OF LAW.

WHILE FOR SOME PURPOSES MEMBERS OF THE NAVY TRANSFERRED TO THE FLEET RESERVE WITH RETAINER PAY ARE CONSIDERED TO BE RETIRED, AND RETAINER PAY IS VIEWED TO BE IN THE NATURE OF REDUCED RETIRED PAY (SEE 43 COMP. GEN. 402), SUCH MEMBERS OF THE FLEET RESERVE ARE NOT "RETIRED;, SEE 41 COMP. GEN. 337 AND 43 AND 805. ALSO, THERE ARE SOME SIMILARITIES BETWEEN SUCH MEMBERS OF THE FLEET RESERVE AND ENLISTED MEMBERS OF THE ARMY AND AIR FORCE RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3914 AND 8914 WITH AT LEAST 20 BUT LESS THAN 30 YEARS OF ACTIVE SERVICE IN THAT THEY ALL ARE SUBJECT TO INVOLUNTARY PERFORMANCE OF CERTAIN ACTIVE SERVICE AS PROVIDED BY LAW PRIOR TO COMPLETION OF 30 YEARS' SERVICE. HOWEVER, SUCH ENLISTED MEMBERS OF THE ARMY AND AIR FORCE ARE ACTUALLY RETIRED WITH ENTITLEMENT TO RETIRED PAY.

UNDER THE PROVISIONS OF 10 U.S.C. 3914 AND 8914, ARMY AND AIR FORCE ENLISTED MEMBERS, UPON RETIREMENT, CONCURRENTLY BECOME MEMBERS OF THE ARMY OR AIR FORCE RESERVE AND IT IS AS RESERVE MEMBERS THAT THEY ARE SUBJECT TO PERIODIC INVOLUNTARY ACTIVE DUTY PRIOR TO COMPLETION OF 30 YEARS' SERVICE. IT APPEARS, HOWEVER, THAT THEIR RETIREMENT AND THE RECEIPT OF RETIRED PAY ARE SEPARATE AND DISTINCT FROM THEIR STATUS AND OBLIGATIONS AS MEMBERS OF THE RESERVE. THUS IT IS DOUBTFUL THAT RETIRED PAY PROPERLY MAY BE REGARDED AS COMPENSATION "FOR SERVICES ACTUALLY PERFORMED", WHICH SERVICE IS PERFORMED AS MEMBERS OF THE RESERVE RATHER THAN AS RETIRED MEMBERS OF THE REGULAR ARMY OR REGULAR AIR FORCE.

SERGEANT SEKAC'S SITUATION SEEMS ANALAGOUS TO THAT CONSIDERED IN STEELMAN V. UNITED STATES, 162 CT. CL. 81 (1963), WHERE, NOTWITHSTANDING THE STATUTORY REQUIREMENT THAT RETIRED ENLISTED MEN OF THE NAVY SERVE ON ACTIVE DUTY WITHOUT THEIR CONSENT IN TIME OF WAR OR NATIONAL EMERGENCY, THE COURT HELD THAT THE RETIRED PAY RECEIVED BY A RETIRED ENLISTED MEMBER OF THE REGULAR NAVY IS NOT ,SALARY, PAY, OR REMUNERATION * * * IN RETURN FOR SERVICES ACTUALLY PERFORMED" WITHIN THE MEANING OF SECTION 7/A) OF THE FEDERAL EMPLOYES' COMPENSATION ACT, SINCE TO HOLD OTHERWISE WOULD MAKE THE PROHIBITION OF SECTION 7/A) MEANINGLESS, THE COURT ALREADY HAVING ELIMINATED FROM THE PROHIBITION RETAINER PAY AS A FLEET RESERVIST IN THE MULHOLLAND CASE AND THE RETIRED PAY OF RESERVISTS IN TAWES V. UNITED STATES, 146 CT. CL. 500 (1959). CONSEQUENTLY, THE COURT HELD THAT SECTION 7/A) BARRED RECOVERY OF RETIRED PAY AS A REGULAR NAVY ENLISTED MEMBER WHILE RECEIVING DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYES' COMPENSATION ACT.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.