B-141989, JUNE 7, 1961, 40 COMP. GEN. 660

B-141989: Jun 7, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ALTHOUGH HE HAD NEVER SERVED ON ACTIVE DUTY AS A RESERVIST AT ANY TIME BUT HAD SERVED UNDER A TEMPORARY CHIEF WARRANT OFFICER APPOINTMENT AUTHORIZED PURSUANT TO 10 U.S.C. 3448 (C) (2) WHICH ACCORDS SUCH TEMPORARY OFFICERS THE SAME BENEFITS AS MEMBERS OF THE ARMY ON ACTIVE DUTY IS REGARDED AS RECEIVING THE RETIRED PAY RIGHTS UNDER 10 U.S.C. 3448 FOR REGULAR ARMY OFFICERS AND IS NOT ENTITLED TO THE BENEFITS FOR RESERVE OFFICERS IN 5 U.S.C. 30R (C). IS NOT FOR APPLICATION AND THE MEMBER MAY NOT BE PAID RETIRED PAY WITHHELD WHILE HE RECEIVED COMPENSATION FOR AN INJURY UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT. IT IS UNDERSTOOD THAT MR. MATUCK WAS RETIRED SEPTEMBER 30. IT IS REPORTED THAT THEREAFTER HE ACCEPTED CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT AND THAT FULL RETIRED PAY AND CIVILIAN SALARY HAVE BEEN PAID HIM IN VIEW OF 37 COMP.

B-141989, JUNE 7, 1961, 40 COMP. GEN. 660

MILITARY PERSONNEL - RETIRED PAY AND DISABILITY COMPENSATION - WARRANT OFFICER IN ARMY HOLDING PERMANENT RANK IN RESERVE COMPONENT A WARRANT OFFICER WHO, WHEN RETIRED AS A NONREGULAR MEMBER OF THE ARMY, HELD THE PERMANENT RANK OF CHIEF WARRANT OFFICER IN THE ARMY RESERVE, ALTHOUGH HE HAD NEVER SERVED ON ACTIVE DUTY AS A RESERVIST AT ANY TIME BUT HAD SERVED UNDER A TEMPORARY CHIEF WARRANT OFFICER APPOINTMENT AUTHORIZED PURSUANT TO 10 U.S.C. 3448 (C) (2) WHICH ACCORDS SUCH TEMPORARY OFFICERS THE SAME BENEFITS AS MEMBERS OF THE ARMY ON ACTIVE DUTY IS REGARDED AS RECEIVING THE RETIRED PAY RIGHTS UNDER 10 U.S.C. 3448 FOR REGULAR ARMY OFFICERS AND IS NOT ENTITLED TO THE BENEFITS FOR RESERVE OFFICERS IN 5 U.S.C. 30R (C), SO THAT THE HOLDING IN TAWES V. UNITED STATES, CT.1CL. NO. 313-58, PERMITTING MEMBERS OF RESERVE COMPONENTS TO RECEIVE RETIRED PAY CONCURRENTLY WITH COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, IS NOT FOR APPLICATION AND THE MEMBER MAY NOT BE PAID RETIRED PAY WITHHELD WHILE HE RECEIVED COMPENSATION FOR AN INJURY UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT.

TO LIEUTENANT COLONEL R. H. MACPHERSON, JUNE 7, 1961:

ON OCTOBER 3, 1960, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF AUGUST 17, 1960, AND ENCLOSURES (UNDER DO NO. 535, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN FAVOR OF CHIEF WARRANT OFFICER GEORGE MATUCK, RETIRED, W-2 103 185, IN THE AMOUNT OF $228.40. THIS AMOUNT REPRESENTS AN ADJUSTMENT IN THE MEMBER'S MILITARY RETIRED PAY FOR THE AMOUNT WITHHELD FROM HIM DURING THE PERIOD AUGUST 26, 1959, THROUGH SEPTEMBER 27, 1959, DUE TO THE CONCURRENT RECEIPT OF RETIRED PAY AND FEDERAL EMPLOYEES' COMPENSATION.

IT IS UNDERSTOOD THAT MR. MATUCK WAS RETIRED SEPTEMBER 30, 1957, IN THE GRADE OF CHIEF WARRANT OFFICER (W-4), AS A NONREGULAR MEMBER OF THE ARMY, UNDER THE PROVISIONS OF 10 U.S.C. 1293, AFTER COMPLETING 20 YEARS' ACTIVE SERVICE AND THAT HE HELD A PERMANENT WARRANT OFFICER GRADE IN THE ARMY RESERVE (W-3, USAR) AT THAT TIME. IT IS REPORTED THAT THEREAFTER HE ACCEPTED CIVILIAN EMPLOYMENT WITH THE UNITED STATES GOVERNMENT AND THAT FULL RETIRED PAY AND CIVILIAN SALARY HAVE BEEN PAID HIM IN VIEW OF 37 COMP. GEN. 591, WHEREIN WE DECIDED TO FOLLOW THE HOLDING OF THE COURT OF CLAIMS THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THE DUAL COMPENSATION LIMITATION PROVISIONS CONTAINED IN SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

IT APPEARS THAT MR. MATUCK RECEIVED AN INJURY WHILE EMPLOYED BY THE GOVERNMENT AND WAS AWARDED COMPENSATION FOR THE PERIOD AUGUST 26 THROUGH SEPTEMBER 27, 1959, UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AS AMENDED. HE WAS ADVISED THAT HIS ARMY RETIRED PAY AND THE FEDERAL EMPLOYEES' COMPENSATION WERE NOT PAYABLE CONCURRENTLY UNDER THE PROVISIONS OF SECTION 7 (A) OF THAT ACT. CONTENDS THAT HE IS ENTITLED TO RECEIVE THE CONCURRENT PAYMENTS OF RETIRED PAY AND FEDERAL EMPLOYEES' COMPENSATION BY REASON OF THE RULING BY THE COURT OF CLAIMS IN THE CASE OF TAWES V. UNITED STATES, CT.1CL. NO. 313- 58, RENDERED ON JULY 13, 1959. SINCE DOUBT EXISTS AS TO WHETHER OR NOT HE IS ENTITLED TO THE CONCURRENT PAYMENTS OF RETIRED PAY AND FEDERAL EMPLOYEE'S COMPENSATION, AN ADVANCE DECISION IS REQUESTED.

SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, AS AMENDED, 5 U.S.C. 757 (A), PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751-756, 757-781, 783-791 AND 793 OF THIS TITLE, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, 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. * * *

THE DECISION IN THE TAWES CASE IS TO THE EFFECT THAT THE PAYMENT OF RETIRED PAY, BASED ON SERVICE IN THE NAVAL RESERVE AND AUTHORIZE UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036A (A), MAY BE PAID CONCURRENTLY WITH THE PAYMENT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED. THE DECISION AWARDED THE PLAINTIFF RETIRED PAY (BASED ON SERVICE IN THE NAVAL RESERVE) UNDER TITLE II OF THE 1948 ACT FOR THE PERIOD FROM JANUARY 1, 1953, TO DATE OF JUDGMENT, CONCURRENTLY WITH THE RECEIPT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, ON THE THEORY THAT THE MONEY ALLOWANCE PAID UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" WITHIN THE MEANING OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED, 10 U.S.C. 371 (B), 1952 USED. THAT SECTION PROVIDED IN PERTINENT PART THAT NO EXISTING LAW SHOULD BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING CIVIL EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT, IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES. THAT SECTION 10 (1U.S.C. 371 (B) ( WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10 , 1956, 70A STAT. 632, 5 U.S.C. 30R (C), CONTAINS PROVISIONS WHICH ARE SUBSTANTIALLY TO THE SAME EFFECT AS THE PRIOR STATUTE.

A STATEMENT OF SERVICE FURNISHED BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, SHOWS THAT MR. MATUCK WAS FIRST APPOINTED A WARRANT OFFICER, JUNIOR GRADE, IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT ON MAY 15, 1942, AND THAT HE SERVED ON ACTIVE DUTY IN DIFFERENT WARRANT OFFICER GRADES FROM THAT TIME UNTIL HIS RETIREMENT IN 1957. WHILE HE BECAME A MEMBER OF THE ARMY RESERVE ON DECEMBER 9, 1952, AND HELD THE PERMANENT RANK OF CHIEF WARRANT OFFICER, W-3, IN THAT ORGANIZATION WHEN HE WAS RETIRED, IT APPEARS THAT HE DID NOT SERVE ON ACTIVE DUTY AS A MEMBER OF THE RESERVE AT ANY TIME.

IT IS OUR VIEW THAT THE TAWES CASE FURNISHES NO BASIS FOR THE PAYMENT OF THE AMOUNT CLAIMED BY MR. MATUCK. IN THE RECENT CASE OF WATMAN V. UNITED STATES, CT.1CL. NO. 189-59, MARCH 1, 1961, THE COURT HELD THAT THE PLAINTIFF'S INACTIVE DUTY STATUS IN THE OFFICERS' RESERVE CORPS HAD NOTHING TO DO WITH THE CASE AND THAT HIS RIGHTS TO THE BENEFITS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED--- IN THAT CASE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE 1932 ECONOMY ACT--- WERE GOVERNED BY THE STATUS HELD BY HIM AT THE TIME OF HIS RETIREMENT. LIKE WATMAN, MT. MATUCK WAS NOT RETIRED AS A MEMBER OF THE ARMY RESERVE, BUT IN HIS STATUS AS A MEMBER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. HOWEVER, WATMAN WAS APPOINTED UNDER THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 729, WHICH GRANTED OFFICERS RECEIVING APPOINTMENTS UNDER THAT ACT THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS. IT APPEARS THAT MR. MATUCK'S TEMPORARY APPOINTMENT AS A CHIEF WARRANT OFFICER, W-4, ARMY OF THE UNITED STATES, ON AUGUST 10, 1956, WAS ACCOMPLISHED UNDER AUTHORITY CONTAINED IN 10 U.S.C. 3448, SUBSECTION (C) (2) OF WHICH PROVIDES THAT WARRANT OFFICERS RECEIVING TEMPORARY APPOINTMENTS UNDER THAT SECTION ARE ENTITLED "TO THE BENEFITS OF ALL LAWS AND REGULATIONS APPLICABLE TO THE RETIREMENT, PENSIONS, AND DISABILITY OF MEMBERS OF THE ARMY ON ACTIVE DUTY.'

FROM THE FOREGOING, IT WILL BE SEEN THAT THERE ARE SIGNIFICANT DIFFERENCES BETWEEN THE RIGHTS GRANTED TEMPORARY OFFICERS UNDER THE 1941 ACT AND THOSE GRANTED TEMPORARY WARRANT OFFICERS UNDER 10 U.S.C. 3448. WHILE THE 1941 ACT REFERS TO RIGHTS, PRIVILEGES AND BENEFITS GRANTED TO MEMBERS OF THE OFFICERS' RESERVE CORPS--- THUS INCLUDING THE RETIRED PAY BENEFITS WHICH THE COURT OF CLAIMS HAS HELD ACCRUE UNDER THE ACT OF JULY 1, 1947, AS CODIFIED IN SECTION 29 (C) OF THE 1956 ACT- - THE RETIREMENT BENEFITS MENTIONED IN 10 U.S.C. 3448 ARE THOSE OF THE "1ARMY ON ACTIVE DUTY.' IT WOULD APPEAR THAT WHEN A TEMPORARY WARRANT OFFICER ON ACTIVE DUTY IS RETIRED AND HIS RETIRED PAY IS CORRECTLY COMPUTED UNDER THE PROVISIONS OF LAW APPLICABLE TO "MEMBERS OF THE ARMY ON ACTIVE DUTY" UPON RETIREMENT, HE HAS RECEIVED THE RETIRED PAY RIGHTS WHICH ARE GRANTED TO HIM UNDER 10 U.S.C. 3448. IF OTHER PROVISIONS OF LAW RESTRICT SUCH RIGHTS AT LATER PERIODS OF TIME, 10 U.S.C. 3448 AFFORDS NO RELIEF FROM SUCH RESTRICTIONS. FURTHERMORE, IT APPEARS THAT THE TERM "THE ARMY" AS USED IN 10 U.S.C. 3448 INCLUDES PERSONS SERVING AS REGULAR ARMY OFFICERS. CLEARLY SUCH OFFICERS ARE NOT ENTITLED TO ANY BENEFITS UNDER SECTION 29 (C) OF THE 1956 ACT. IT SEEMS EXTREMELY UNLIKELY THAT, IN USING THAT TERM IN 10 U.S.C. 3448, THE CONGRESS INTENDED THAT TEMPORARY WARRANT OFFICERS SHOULD RECEIVE ANY BENEFITS UNDER SECTION 29 (C).

THERE BEING NO AUTHORITY FOR THE PAYMENT OF MR. MATUCK'S CLAIM, THE SUBMITTED VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.

YOUR STATEMENT THAT MR. MATUCK "IS NOT SUBJECT TO THE DUAL COMPENSATION STATUTES OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62, WHICH APPLY TO REGULAR ARMY OFFICERS AND REGULAR WARRANT OFFICERS RETIRED FOR REASONS OTHER THAN DISABILITY" HAS BEEN NOTED. IT IS REQUESTED THAT YOU FURNISH AN EXPLANATION OF YOUR REASONS FOR SUCH CONCLUSION. PRESUMABLY YOU RELY ON SECTION 29 (D) OF THE CITED ACT OF AUGUST 10, 1956, 5 U.S.C. 3OR (D), WHICH PROVIDES THAT WHEN A RESERVE IS NOT ON ACTIVE DUTY, HE IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT WITH THE UNITED STATES BECAUSE OF HIS STATUS, DUTIES "OR PAY OR ALLOWANCES RECEIVED IN THAT CAPACITY.' WHILE IT APPEARS THAT MR. MATUCK IS A MEMBER OF THE ARMY RESERVE, HE IS RECEIVING NO RETIRED PAY IN THAT CAPACITY. HE HOLDS THE OFFICE OR STATUS OF A RETIRED MEMBER OF THE ARMY OF THE UNITED STATES AND HIS RETIRED PAY IS BEING PAID TO HIM IN THAT CAPACITY. IT WOULD APPEAR THAT SECTION 29 (D) DOES NOT COVER THAT SITUATION.

Nov 22, 2017

Nov 21, 2017

  • A-P-T Research, Inc.
    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

Nov 14, 2017

Looking for more? Browse all our products here