B-102066, MAY 3, 1951, 30 COMP. GEN. 429

B-102066, MAY 3, 1951, 30 COMP. GEN. 429

RETIRED PAY - DISABILITY - ELECTION UNDER CAREER COMPENSATION ACT OF 1949 - RETIRED OFFICERS ON CIVILIAN DUTY A CIVILIAN EMPLOYEE WHOSE RIGHT TO DISABILITY RETIREMENT PAY AS AN OFFICER OF THE ARMY OF THE UNITED STATES IS TEMPORARILY SUSPENDED BY THE PROVISIONS OF SECTION 212 (A) OF THE ACT OF JUNE 30, 1932, PROHIBITING THE CONCURRENT PAYMENT OF RETIRED PAY AND CIVILIAN COMPENSATION WHEN THE COMBINED RATE EXCEEDS $3,000 PER ANNUM, MAY BE REGARDED AS BEING "ENTITLED" TO RECEIVE RETIRED PAY, WITHIN THE MEANING OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO HAVE THE RIGHT TO ELECT TO RECEIVE THE DISABILITY SEVERANCE PAY AUTHORIZED THEREIN, BUT SUCH AN ELECTION WILL BE A BAR TO ANY PAYMENT OF RETIREMENT PAY THEREAFTER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MAY 3, 1951:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1951, TRANSMITTING A LETTER DATED OCTOBER 10, 1950, FROM COLONEL C. K. MCALISTER, F.C., DISBURSING OFFICER, TOGETHER WITH A VOUCHER, AND RELATED PAPERS, STATED IN FAVOR OF WILLIAM R. DURYEE, IN THE AMOUNT OF $4,617, REPRESENTING DISABILITY SEVERANCE PAY, AND REQUESTING DECISION AS TO WHETHER PAYMENT THEREOF IS AUTHORIZED.

IT APPEARS THAT DR. DURYEE SERVED ON ACTIVE DUTY AS AN OFFICER OF THE ARMY OF THE UNITED STATES AND THAT SOMETIME PRIOR TO OCTOBER 1, 1949, HE WAS GRANTED RETIREMENT PAY ON ACCOUNT OF PHYSICAL DISABILITY INCURRED IN THE LINE OF DUTY. ON JANUARY 29, 1948, HE ENTERED ON DUTY AS A CIVILIAN EMPLOYEE OF THE UNITED STATES GOVERNMENT AND HAS NOT BEEN PAID RETIREMENT PAY SINCE THAT DATE IN VIEW OF THE PROVISIONS OF SECTION 212 (A) OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

AFTER THE DATE OF ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, 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 SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 ( .S.C., TITLE 37), 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 $3,000 * * *.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 823, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY; (2) ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * *. (ITALICS SUPPLIED.)

THE PRESIDENT'S REGULATIONS ARE CONTAINED IN EXECUTIVE ORDER 10124, DATED APRIL 25, 1950.

WHILE IT IS NOT SO STATED IT IS ASSUMED THAT DR. DURYEE CAN OTHERWISE QUALIFY FOR DISABILITY SEVERANCE PAY, BUT IT IS INDICATED THAT DOUBT EXISTS AS TO WHETHER HE IS ENTITLED TO SUCH PAY BECAUSE OF THE FACT THAT ON OCTOBER 1, 1949, HE WAS NOT ACTUALLY IN RECEIPT OF RETIREMENT PAY. HOWEVER, AS WILL BE NOTED, UNDER THE PROVISIONS OF THE SAID SECTION 411 A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES NEED NOT ACTUALLY BE IN RECEIPT OF RETIRED PAY BUT NEEDS ONLY TO BE ,ENTITLED" TO RECEIVE IT IN ORDER TO QUALIFY TO MAKE AN ELECTION THEREUNDER. WHILE SECTION 212 (A) OF THE ACT OF JUNE 30, 1932, SUPRA, PROVIDES GENERALLY THAT NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHALL BE ENTITLED TO RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN EXCESS OF A CERTAIN RATE IN COMBINATION WITH THE COMPENSATION OF HIS CIVILIAN POSITION, SUCH SECTION DOES NOT TAKE AWAY THE BASIC RIGHT OR ENTITLEMENT TO RETIRED PAY BUT, IN EFFECT, MERELY SUSPENDS TEMPORARILY THE RIGHT TO RECEIVE ALL OR A PART THEREOF. THE LANGUAGE OF SECTION 411 OF THE CAREER COMPENSATION ACT, SUPRA, IS AMBIGUOUS WITH RESPECT TO THAT SITUATION, BUT IT IS REASONABLE TO CONCLUDE THAT THE CONGRESS DID NOT INTEND BY SUCH LANGUAGE TO DENY TO DISABLED VETERANS BASICALLY ENTITLED TO RETIRED PAY THE RIGHT OF ELECTION GRANTED THEREIN, MATERIALLY AFFECTING THEIR BASIC AND FUTURE RIGHTS TO RETIRED PAY, MERELY BECAUSE THE CURRENT RECEIPT OF THEIR RETIRED PAY HAD BEEN TEMPORARILY SUSPENDED WHILE EMPLOYED BY THE GOVERNMENT. CF. 29 COMP. GEN. 241, 253, ANSWER TO THE ELEVENTH QUESTION. ACCORDINGLY, THERE WOULD APPEAR NO BASIS FOR DENYING DR. DURYEE THE RIGHT TO ELECT DISABILITY SEVERANCE PAY IF HE OTHERWISE QUALIFIES THEREFOR. HOWEVER, SUCH AN ELECTION WOULD BE A COMPLETE BAR TO ANY PAYMENT OF RETIREMENT PAY THEREAFTER, REGARDLESS OF ANY FUTURE CHANGES IN THE DUAL COMPENSATION LAW OR IN HIS EMPLOYMENT STATUS OR OTHER CIRCUMSTANCES, AND, HENCE, IF HE IS CERTAIN THAT HE NEVERTHELESS DESIRES TO MAKE SUCH AN ELECTION, IT SHOULD BE IN THE FORM OF A DEFINITE WRITTEN STATEMENT TO THAT EFFECT OVER HIS SIGNATURE, THE STATEMENT TO INDICATE IN CLEAR TERMS THE EFFECT OF SUCH ELECTION. THE OFFICER'S LETTER OF SEPTEMBER 20, 1950, WITH THE VOUCHER, IS NOT SUCH AN UNEQUIVOCAL ELECTION, BUT IS MORE IN THE NATURE OF AN INQUIRY AS TO WHETHER HE WOULD BE ELIGIBLE FOR SEVERANCE PAY.

FOR THE REASONS STATED, PAYMENT OF THE VOUCHER IS AUTHORIZED, IF IT IS OTHERWISE CORRECT AND IF THE PROPER ELECTION IS EXECUTED. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH FOR TRANSMITTAL TO COLONEL MCALISTER.