B-148868, JUN. 26, 1962

B-148868, JUN. 26, 1962

TO LIEUTENANT STUART M. STEEN, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1962, RELATIVE TO OUR CLAIMS DIVISION SETTLEMENT DATED APRIL 18, 1962, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY WITHHELD FROM YOU FROM JULY 1, 1959, TO JUNE 16, 1961, 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.

THE RECORDS SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30, 1959, WITH SEVERANCE PAY. ON MAY 8, 1961, THE SECRETARY OF THE NAVY APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT YOUR RECORDS BE CORRECTED TO SHOW THAT YOU WERE NOT DISCHARGED FROM THE NAVY BUT THAT YOUR NAME WAS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1959. BASED ON YOUR ELECTION OF METHOD A UNDER 10 U.S.C. 1401, AND YOUR DISABILITY RATING OF 50 PERCENT, YOU WERE DETERMINED TO BE ENTITLED TO THE GORSS MONTHLY RETIRED PAY OF $262.50, EFFECTIVE JULY 1, 1959. SINCE YOUR FEDERAL CIVILIAN SALARY, WHEN COMBINED WITH YOUR RETIRED PAY, EXCEEDED $10,000 PER ANNUM, YOUR RETIRED PAY WAS REDUCED.

SECTION 212 OF THE ECONOMY ACT, AS AMENDED, PROVIDES THAT AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE UNIFORMED SERVICES AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000.

10 U.S.C. 1552 PROVIDES THAT THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED, ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. UPON THE CORRECTION OF HIS MILITARY RECORDS, A MEMBER'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY, ALLOWANCES, AND OTHER BENEFITS PURSUANT TO THE PROVISIONS OF THE LAW WHEN APPLIED TO THE FACTS IN HIS CASE AS THEY APPEAR FROM THE CORRECTED RECORDS. EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION MADE UNDER SECTION 1552 IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES GOVERNMENT. CF. 32 COMP. GEN. 242; 32 COMP. GEN. 372, AND 34 COMP. GEN. 7.

THE CORRECTION MADE IN YOUR CASE WAS TO PLACE YOU IN THE SAME FINANCIAL POSITION THAT YOU WOULD HAVE OCCUPIED HAD YOU BEEN RETIRED INITIALLY FOR PHYSICAL DISABILITY. HAD YOU BEEN SO RETIRED, YOU WOULD HAVE BEEN SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN 5 U.S.C. 59A. THE FACT THAT THE RETIRED PAY WAS GRANTED RETROACTIVELY, AS REQUESTED, WOULD NOT RELIEVE YOU OF THE DUAL COMPENSATION RESTRICTIONS OF THE STATUTE. SEE IN THIS CONNECTION, GEORGE H. SEASTROM V. UNITED STATES, 147 CT.CL. 453, DECIDED NOVEMBER 4, 1959; 38 COMP. GEN. 839 AND 40 COMP. GEN 502.