B-136459, AUG. 14, 1962

B-136459, AUG. 14, 1962

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED AUGUST 3, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), RELATIVE TO WITHHOLDING COLLECTION ACTION FOR AMOUNTS DUE THE UNITED STATES FOR RETIRED PAY PAYMENTS MADE TO CERTAIN OFFICERS IN CONTRAVENTION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, AS CONSTRUED IN DECISION OF JULY 9, 1962, B-136459. THE LETTER ALSO SUGGESTS THAT AUTHORITY TO CONTINUE SUCH RETIRED PAY PAYMENTS CURRENTLY UNTIL THE CONGRESS HAS HAD AN OPPORTUNITY TO CONSIDER LEGISLATION AUTHORIZING SUCH PAYMENTS SHOULD BE GRANTED.

IN THE ABOVE-MENTIONED DECISION OF JULY 9, 1962, IT WAS HELD THAT RESERVE OFFICERS OF THE ARMY OR AIR FORCE WHO WERE SERVING ON ACTIVE DUTY IN TEMPORARY GRADES (TO WHICH THEY WERE APPOINTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906), EQUAL TO, OR HIGHER THAN THEIR RESERVE GRADES AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY, MAY NOT BE CONSIDERED AS HAVING BEEN RETIRED UNDER LAWS RELATING TO RESERVE OFFICERS SO AS TO EXEMPT THEM FROM THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT, AS AMENDED.

ON JULY 30, 1962, HONORABLE TOM MURRAY, CHAIRMAN OF THE POST OFFICE AND CIVIL SERVICE COMMITTEE, HOUSE OF REPRESENTATIVES, INTRODUCED A BILL, H.R. 12721, 87TH CONG., RELATING GENERALLY TO DUAL COMPENSATION MATTERS, SECTION 102 (F) OF WHICH WOULD VALIDATE THE PAYMENTS IN QUESTION FOR PERIODS UP TO THE "EFFECTIVE DATE OF THIS ACT.' IN VIEW OF THE INTRODUCTION OF THE BILL, DECISION IS REQUESTED AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO WITHHOLDING ACTION TO RETROACTIVELY CHECK THE RETIRED PAY OF THE OFFICERS CONCERNED WHO IN GOOD FAITH ACCEPTED FEDERAL EMPLOYMENT BELIEVING THAT THEY, LIKE RESERVE OFFICERS RETIRED UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES, WERE NOT SUBJECT TO THE PROVISIONS OF SECTION 212. IT IS ESTIMATED THAT THE SCREENING OF THE RETIRED PAY FILES OF THE OFFICERS INVOLVED WILL BE COMPLETED WITHIN THE NEXT 45 TO 60 DAYS. IN THE EVENT IT IS DETERMINED THAT THE DECISIONS SHOULD BE APPLIED PROSPECTIVELY, IT IS PROPOSED TO APPLY THE DECISION TO ALL THE RETIRED OFFICERS INVOLVED AS OF A PARTICULAR DATE, "SAY OCTOBER 1, 1962," RATHER THAN ON A PIECEMEAL BASIS AS THE CASES ARE DEVELOPED.

SINCE IT IS OUR VIEW THAT THE PAYMENTS IN QUESTION ARE NOT AUTHORIZED BY LAW, THE OPERATION OF THE DECISION MAY NOT BE POSTPONED TO PERMIT SUCH PAYMENTS TO CONTINUE FOR A PERIOD OF TIME IN EXCESS OF THAT REQUIRED FOR THE ADMINISTRATIVE OFFICE TO COMPLETE THE NECESSARY EXAMINATION OF ACCOUNTS. IN THE CIRCUMSTANCES HERE INVOLVED, IT IS CONCLUDED THAT THE DECISION SHOULD BE APPLIED PROSPECTIVELY NOT LATER THAN OCTOBER 1, 1962. IT APPEARS THAT THERE MAY NOT BE SUFFICIENT TIME FOR CONSIDERATION AND ENACTMENT OF H.R. 12721 BY THE 87TH CONGRESS. HOWEVER, WE WILL NOT AT THE PRESENT TIME INSIST ON COLLECTION ACTION FOR THE PERIOD PRIOR TO OCTOBER 1, 1962, AND IF SIMILAR PROPOSED LEGISLATION OR OTHER BILL RELATING SOLELY TO THE RELIEF OF THOSE AFFECTED BY THE DECISION IS PRESENTED FOR THE CONSIDERATION OF THE 88TH CONGRESS, FURTHER COLLECTION ACTION MAY BE POSTPONED UNTIL THE END OF THE FIRST SESSION OF THE 88TH CONGRESS, EXCEPT WHERE SUCH COLLECTION SECTION IS REQUIRED TO PROTECT THE INTEREST OF THE GOVERNMENT.