B-135425, APR. 21, 1958

B-135425, APR. 21, 1958

TO MR. ELMER R. FAY, SR.:

YOUR LETTER OF FEBRUARY 27, 1958, REQUESTS RECONSIDERATION OF THE ACTION TAKEN BY OUR OFFICE IN ADVISING YOU THAT YOUR CLAIM FOR RETROACTIVE RETIRED PAY FROM APRIL 2, 1945, THROUGH AUGUST 11, 1947, WAS BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A.

IT APPEARS FROM THE RECORD THAT YOU WERE RETIRED FOR DISABILITY AS AN OFFICER, CORPS OF ENGINEERS, ARMY OF THE UNITED STATES, EFFECTIVE DECEMBER 28, 1944, AND THAT YOU RECEIVED PAY THROUGH APRIL 1, 1945. ON FCUSA FORM 1202, DATED AUGUST 8, 1957, SIGNED BY YOU, IT IS INDICATED THAT FROM APRIL 2, 1945, TO AUGUST 4, 1955, YOUR RETIRED PAY WAS DISCONTINUED PURSUANT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, SINCE YOU BECAME A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, APRIL 2, 1945, WITH A SALARY IN EXCESS OF $3,000 PER ANNUM AND CONTINUED IN SUCH EMPLOYMENT THROUGH AUGUST 4, 1955.

YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 12, 1957. THAT PORTION OF YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD APRIL 2, 1945, THROUGH AUGUST 11, 1947, COULD NOT BE GIVEN CONSIDERATION BY OUR OFFICE BECAUSE THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PRECLUDES US FROM CONSIDERING THE FOREVER BARS ALL CLAIMS AGAINST THE UNITED STATES NOT PRESENTED HERE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM ACCRUES. IT APPEARS TO BE YOUR CONTENTION THAT YOUR CLAIM DID NOT ACTUALLY ACCRUE UNTIL THE DATE OF RENDITION OF COMPTROLLER GENERAL'S DECISIONS OF MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, OR OF JUNE 11, 1957, B-123382, 36 COMP. GEN. 808.

THE REFERRED TO DECISIONS OF THE COMPTROLLER GENERAL MERELY CONSTRUED THE APPLICATION OF THE DUAL COMPENSATION STATUTES TO MEMBERS OF THE OFFICER'S RESERVE CORPS IN THE LIGHT OF CERTAIN COURT DECISIONS CITED THEREIN. YOUR RIGHT TO RETIRED PAY CONCURRENTLY WITH RECEIPT OF COMPENSATION AS A CIVILIAN ACCRUED, NOT AS THE DATE OF EITHER OF OUR DECISIONS, BUT AS OF THE TIME YOU HAD A RIGHT TO RETIREMENT PAY, THAT IS, ON EACH DAY FOR WHICH RETIREMENT PAY PROPERLY WAS ALLOWABLE. SEE 29 COMP. GEN. 517. ALSO, THE ACT OF OCTOBER 9, 1940, DOES NOT, OF COURSE, PERMIT US TO OVERLOOK OR FAIL TO APPLY THE 10-YEAR BAR, THE COURTS GENERALLY HAVING HELD THAT A GOVERNMENTAL OFFICIAL HAS NO AUTHORITY TO WAIVE STATUTORY LIMITATIONS ENACTED FOR THE GOVERNMENT'S PROTECTION. COMPAGNIE GENERALE TRANSATLANTIQUE V. UNITED STATES, 51 F.2D 1053; MAHONING COAL R. CO., ET AL. V. UNITED STATES, 28 F.2D 917; 53 C.J.S. LIMITATIONS OF ACTIONS SEC. 24.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE ACTION TAKEN BY OUR OFFICE IN DISALLOWING THAT PART OF YOUR CLAIM FOR RETROACTIVE RETIRED PAY FROM APRIL 2, 1945, THROUGH AUGUST 11, 1947, IS CORRECT AND UPON REVIEW SUCH ACTION MUST BE SUSTAINED. YOUR ATTENTION IS ALSO DIRECTED TO THE FACT THAT THE EXEMPTION TO THE DUAL COMPENSATION STATUTES AS TO MEMBERS OF THE OFFICERS' RESERVE CORPS WHICH WAS THE SUBJECT OF 35 COMP. GEN. 497 AND 36 ID. 808 WAS GRANTED BY THE ACT OF JULY 1, 1947, 61 STAT. 239 EFFECTIVE THAT DATE, AND HAD NO APPLICATION TO PERIODS PRIOR TO JULY 1, 1947. THUS, EVEN ASIDE FROM THE 10-YEAR BAR, NO RETIREMENT PAY WAS DUE OR COULD BE ALLOWED UNDER THOSE DECISIONS FOR ANY PERIOD PRIOR TO JULY 1, 1947, OR FOR ANY PERIOD PRIOR TO THE DATE YOU BECAME A MEMBERS OF THE OFFICERS' RESERVE CORPS, APPARENTLY ON JULY 23, 1947.