B-140379, OCTOBER 9, 1959, 39 COMP. GEN. 280

B-140379, OCTOBER 9, 1959, 39 COMP. GEN. 280

MILITARY PERSONNEL - DUAL COMPENSATION - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RESERVE MEMBERSHIP A MEMBER OF THE UNIFORMED SERVICES WHO WHILE SERVING AS A WARRANT OFFICER IS RETIRED FOR PHYSICAL DISABILITY AND RECEIVES RETIRED PAY BASED ON SATISFACTORY SERVICE IN GRADE OF LIEUTENANT IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, ALTHOUGH HE HELD THE GRADE OF LIEUTENANT, UNITED STATES ARMY RESERVE, AT THE TIME OF PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, IS NOT REGARDED AS RECEIVING RETIRED PAY "UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES" WITHIN THE MEANING OF THE DUAL COMPENSATION EXEMPTION IN 5 U.S.C. 30R (C), THE PAY AND ALLOWANCES IN THE EXEMPTION MUST BE THOSE WHICH ARE PAYABLE TO A MEMBER OF A RESERVE COMPONENT IN HIS CAPACITY AS A RESERVIST AND BE RELATED TO THE ACTIVE DUTY PERFORMED.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, OCTOBER 9, 1959:

YOUR LETTER DATED JULY 27, 1959, FORWARDED HERE BY FIRST ENDORSEMENT DATED JULY 31, 1959, FROM OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NUMBER 443 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TOTALING $1,594.40 IN THE CASE OF FIRST LIEUTENANT MARIO G. STROLLO, A.U.S., RETIRED, REPRESENTING RETIRED PAY FOR PARTS OF THE PERIOD FROM FEBRUARY 2, 1953, THROUGH JUNE 30, 1955. YOU INDICATE THAT LIEUTENANT STROLLO WAS APPOINTED TO A CIVILIAN POSITION WITH THE UNITED STATES GOVERNMENT EFFECTIVE FEBRUARY 2, 1953, AT A SALARY OF $3,795 PER ANNUM; THAT HE WAS ON LEAVE OF ABSENCE WITHOUT PAY FROM APRIL 11, 1953, TO OCTOBER 11, 1953; AND THAT THE CIVILIAN POSITION WAS TERMINATED ON JUNE 30, 1955. YOU SAY THAT DOUBT EXISTS AS TO LIEUTENANT STROLLO'S STATUS WITH REGARD TO THE DUAL COMPENSATION STATUTES.

IT APPEARS THAT ON JANUARY 31, 1953, LIEUTENANT STROLLO WAS SERVING ON ACTIVE DUTY AS A WARRANT OFFICER (JUNIOR GRADE), W-1, ARMY OF THE UNITED STATES, AND THAT HE HAD PREVIOUSLY SERVED ON ACTIVE DUTY IN THE TEMPORARY GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES WITHOUT COMPONENT, HAVING SERVED SATISFACTORILY IN THAT GRADE. IT ALSO APPEARS THAT AS OF JANUARY 31, 1953, HE HELD THE GRADE OF LIEUTENANT, UNITED STATES ARMY RESERVE, AND THAT HE HAS CONTINUED TO RETAIN HIS RESERVE STATUS. THERE IS NOTHING IN THE RECORD BEFORE THIS OFFICE WHICH SHOWS THAT HE SERVED ON ACTIVE DUTY AT ANY TIME AS A MEMBER OF THE ARMY RESERVE. HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JANUARY 31, 1953, BY ORDERS DATED JANUARY 22, 1953, AS A WARRANT OFFICER (JUNIOR GRADE) BY REASON OF A 30 PERCENT DISABILITY, WITH RETIRED PAY OF A FIRST LIEUTENANT AS PROVIDED BY SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, AS AMENDED, 37 U.S.C. 272. BY ORDERS DATED AUGUST 30, 1954, HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 1, 1954, WITH THE GRADE AND RETIRED PAY OF FIRST LIEUTENANT UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. THE ORDERS DATED JANUARY 22, 1953, WERE AMENDED BY ORDERS DATED APRIL 20, 1959, PROVIDING RETIREMENTS GRADE AND RETIRED PAY OF A FIRST LIEUTENANT. ORDERS DATED APRIL 21, 1959, AMENDED THE ORDERS DATED AUGUST 30, 1954, TO READ " FIRST LIEUTENANT MARIO G. STROLLO, W2145298 PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.'

THE SECOND PROVISO OF SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 68 STAT. 818, 37 U.S.C. 272 (D), PROVIDED:

THAT THE DISABILITY RETIREMENT PAY OF ANY SUCH MEMBER WHO SHALL HAVE HELD A TEMPORARY RANK, GRADE, OR RATING HIGHER THAN THE RANK, GRADE, OR RATING HELD BY HIM AT THE TIME OF PLACEMENT OF HIS NAME UPON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF HIS RETIREMENT, WHICHEVER IS EARLIER, AND WHO SHALL HAVE SERVED SATISFACTORILY IN SUCH HIGHER RANK, GRADE, OR RATING AS DETERMINED BY THE SECRETARY CONCERNED, SHALL BE COMPUTED ON THE BASIS OF THE MONTHLY BASIC PAY OF SUCH HIGHER RANK, GRADE, OR RATING TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE BEEN SERVING ON ACTIVE DUTY IN SUCH HIGHER RANK, GRADE, OR RATING AT THE TIME OF PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST OR AT THE TIME OF RETIREMENT, WHICHEVER IS EARLIER.

SECTION 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 279, PROVIDED:

A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED PURSUANT TO THIS TITLE SHALL BE RETIRED IN THE RANK, GRADE, OR RATING UPON WHICH HIS DISABILITY RETIREMENT PAY IS BASED OR IN SUCH HIGHER RANK, GRADE, OR RATING AS MAY BE AUTHORIZED BY LAW AT TIME OF RETIREMENT.

IT APPEARS THAT, UNDER SUCH STATUTORY PROVISIONS, LIEUTENANT STROLLO WAS RETIRED IN THE GRADE OF FIRST LIEUTENANT BECAUSE OF THE FACT THAT HE HAD SERVED SATISFACTORILY ON ACTIVE DUTY IN SUCH GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND NOT BECAUSE OF THE FACT THAT HE HELD THE GRADE OF FIRST LIEUTENANT, UNITED STATES ARMY RESERVE.

SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, 10 U.S.C. 371B, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, PROVIDED AS FOLLOWS (QUOTING FROM 10 U.S.C. 371B, 1952 USED.):

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING EMPLOYMENT IN ANY CIVIL 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 THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.

UNDER SUCH PROVISIONS OF LAW, PERSONS ENTITLED TO RETIRED PAY AS OFFICERS OR FORMER OFFICERS IN RESERVE COMPONENTS OF THE ARMED FORCES ARE EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, IF THEY ARE RETIRED UNDER AUTHORITY OF, AND THUS ARE ENTITLED TO, RETIRED PAY UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED FORCES. 35 COMP. GEN. 497; 36 ID. 808; 38 ID. 741.

WHILE SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT COVER ALL MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY INCLUDING MEMBERS OF RESERVE COMPONENTS, IT IS BELIEVED THAT THE PAY AND ALLOWANCES MENTIONED IN THE ACT OF JULY 1, 1947, AS AMENDED, ARE THOSE WHICH ARE PAYABLE TO A MEMBER OF A RESERVE COMPONENT IN HIS CAPACITY AS A RESERVIST AND THAT THEY MUST BEAR SOME RELATIONSHIP TO ACTIVE DUTY PERFORMED IN SUCH CAPACITY. MERE MEMBERSHIP IN THE OFFICERS RESERVE CORPS OR IN ANY OTHER RESERVE COMPONENT OF THE ARMED FORCES IS NOT IN ITSELF A SUFFICIENT BASIS FOR EXEMPTION UNDER THE ACT OF JULY 1, 1947, AS AMENDED, OR UNDER THE STATUTORY PROVISIONS CURRENTLY IN EFFECT, WHICH ARE CONTAINED IN 5 U.S.C. 30R (C) (1958 USED.). SEE B-134102, DECEMBER 10, 1957, AND 38 COMP. GEN. 839. IN THE DECISION RENDERED ON JANUARY 14, 1959, BY THE COURT OF CLAIMS IN THE CASE OF BOWMAN ET AL. V. UNITED STATES, C.1CLS. NO. 108-58, IN FAVOR OF NATHAN REED WARTHEN, PLAINTIFF NO. 5, THE COURT STATED (REFERRING TO ITS EARLIER DECISION IN SARLES V. UNITED STATES, C.1CLS. NO. 353-56 DECIDED MARCH 5, 1958), THAT THE 1947 ACT, PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY "BY REASON OF SERVICE IN A RESERVE COMPONENT.'

SINCE LIEUTENANT STROLLO'S PHYSICAL DISABILITY APPEARS TO HAVE BEEN INCURRED WHILE HE WAS SERVING ON ACTIVE DUTY AS A WARRANT OFFICER, W-1, ARMY OF THE UNITED STATES, AND SINCE HIS RETIRED GRADE OF FIRST LIEUTENANT APPEARS TO HAVE BEEN BASED ON THE FACT THAT THEY HAD SERVED SATISFACTORILY ON ACTIVE DUTY IN THAT GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND NOT ON THE FACT THAT HE HELD THE GRADE OF FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, AT THE TIME HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, HE HAS NOT RECEIVED RETIRED PAY "UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES" WITHIN THE MEANING OF THE EXEMPTING PROVISIONS OF THE ACT OF JULY 1, 1947, AS AMENDED. CONSEQUENTLY, DURING THE PERIOD INVOLVED HE WAS SUBJECT TO THE $3,000 PER ANNUM RESTRICTION IMPOSED BY THE 1932 ECONOMY ACT.

PAYMENT ON THE VOUCHER PRESENTED IS NOT AUTHORIZED AND SUCH VOUCHER, WITH ITS SUPPORTING PAPERS, IS BEING RETAINED HERE.