B-135425, MAR. 27, 1962
Highlights
SR.: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27. WAS FOR RETIRED PAY WITHHELD FROM APRIL 2. THE CLAIM WAS ALLOWED FOR THE PERIOD BEGINNING AUGUST 12. YOU WERE ADVISED THAT NO PAYMENT COULD BE MADE FOR THAT PART OF YOUR CLAIM COVERING THE PERIOD PRIOR TO AUGUST 12. BECAUSE THE CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL AUGUST 12. YOU ALSO WERE ADVISED THAT SINCE YOUR ENTITLEMENT TO RETIRED PAY WAS BASED UPON THE ACT OF JULY 1. EVEN IF THE BARRING ACT WERE NOT FOR APPLICATION IN YOUR CASE. THE ENCLOSURE WITH YOUR LETTER IS A COPY OF A LETTER DATED FEBRUARY 8. THE WATMAN CASE HELD THAT THE DUAL COMPENSATION EXEMPTION RIGHTS OF PERSONS SERVING ON ACTIVE DUTY AS OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF RETIREMENT WERE THE SAME AS MEMBERS OF THE OFFICERS' RESERVE CORPS AND THAT THE PLAINTIFF WAS ENTITLED TO RECOVER THE RETIRED PAY WHICH WAS NOT PAID TO HIM DURING THAT PART OF THE TIME THAT HE WORKED FOR THE VETERANS ADMINISTRATION WHICH FELL WITHIN SIX YEARS PRECEDING THE FILING OF THE SUIT IN THAT CASE.
B-135425, MAR. 27, 1962
TO MR. ELMER R. FAY, SR.:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1962, WITH ENCLOSURE, RELATIVE TO YOUR CLAIM FOR RETIRED PAY WITHHELD FOR THE PERIOD APRIL 2, 1945, THROUGH AUGUST 11, 1947, UNDER THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.
YOUR ORIGINAL CLAIM RECEIVED IN THIS OFFICE ON AUGUST 12, 1957, WAS FOR RETIRED PAY WITHHELD FROM APRIL 2, 1945. THE CLAIM WAS ALLOWED FOR THE PERIOD BEGINNING AUGUST 12, 1947. IN DECISION OF APRIL 21, 1958, B- 135425, YOU WERE ADVISED THAT NO PAYMENT COULD BE MADE FOR THAT PART OF YOUR CLAIM COVERING THE PERIOD PRIOR TO AUGUST 12, 1947, BECAUSE THE CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL AUGUST 12, 1957, AND THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PRECLUDES US FROM CONSIDERING AND FOREVER BARS ALL CLAIMS AGAINST THE UNITED STATES NOT RECEIVED IN OUR OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM ACCRUES. YOU ALSO WERE ADVISED THAT SINCE YOUR ENTITLEMENT TO RETIRED PAY WAS BASED UPON THE ACT OF JULY 1, 1947, 61 STAT. 239--- INTERPRETED BY THE COURT OF CLAIMS IN THE CASE OF TANNER V. UNITED STATES, 129 CT.CL. 792, AS EXEMPTING CERTAIN RESERVE OFFICERS FROM THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN THE ECONOMY ACT, AS AMENDED -- YOUR CLAIM COULD NOT BE ALLOWED FOR ANY PERIOD PRIOR TO JULY 1, 1947, EVEN IF THE BARRING ACT WERE NOT FOR APPLICATION IN YOUR CASE.
THE ENCLOSURE WITH YOUR LETTER IS A COPY OF A LETTER DATED FEBRUARY 8, 1962, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA. THE FINANCE CENTER HAS FORWARDED THE LETTER HERE FOR DISPOSITION. YOU BELIEVE THAT THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189-59, DECIDED MARCH 1, 1961, AND OUR DECISION OF MAY 18, 1961, B-136459, 40 COMP. GEN. 625, CONSTITUTE AUTHORITY TO ALLOW YOU THE RETIRED PAY WITHHELD DURING THE PERIOD OF YOUR FEDERAL EMPLOYMENT PRIOR TO AUGUST 12, 1947.
THE WATMAN CASE HELD THAT THE DUAL COMPENSATION EXEMPTION RIGHTS OF PERSONS SERVING ON ACTIVE DUTY AS OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF RETIREMENT WERE THE SAME AS MEMBERS OF THE OFFICERS' RESERVE CORPS AND THAT THE PLAINTIFF WAS ENTITLED TO RECOVER THE RETIRED PAY WHICH WAS NOT PAID TO HIM DURING THAT PART OF THE TIME THAT HE WORKED FOR THE VETERANS ADMINISTRATION WHICH FELL WITHIN SIX YEARS PRECEDING THE FILING OF THE SUIT IN THAT CASE.
OUR DECISION OF MAY 18, 1961, 40 COMP. GEN. 625, MERELY AUTHORIZED THE ADJUSTMENT, ADMINISTRATIVELY, OF RETIRED PAY WITHHELD FROM NOVEMBER 1, 1960, UNDER OUR DECISION OF AUGUST 26, 1960, 40 COMP. GEN. 136, BECAUSE OF THEN CONFLICTING COURT DECISIONS. THAT CONFLICT WAS RESOLVED BY THE WATMAN CASE. HOWEVER, NEITHER THE COURT DECISION IN THE WATMAN CASE NOR OUR DECISION WERE CONCERNED WITH THE APPLICATION OF THE 1940 BARRING ACT, AND HENCE HAVE NO APPLICATION APPLICATION OF THE 1940 BARRING ACT, AND HENCE HAVE NO APPLICATION TO THE MATTER HERE CONSIDERED.
ACCORDINGLY, UPON FURTHER REVIEW OF THE MATTER, IT IS CONCLUDED THAT THE PRIOR ACTION DENYING YOUR CLAIM FOR THE PERIOD APRIL 2, 1945, THROUGH AUGUST 11, 1947, WAS CORRECT AND IS SUSTAINED.