B-10211, MAY 29, 1940, 19 COMP. GEN. 963

B-10211, MAY 29, 1940, 19 COMP. GEN. 963

COMPENSATION - DISABILITY - CONCURRENT PAYMENT AS REGULAR ARMY RESERVIST ON INACTIVE DUTY SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT, 39 STAT. 743, PROHIBITS PAYMENT TO A CIVILIAN EMPLOYEE OF "ENLISTMENT ALLOWANCE" AS A MEMBER OF THE REGULAR ARMY RESERVE ON INACTIVE DUTY, WHILE HE IS IN RECEIPT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, UNITED STATES EMPLOYEES' COMPENSATION COMMISSION, MAY 29, 1940:

I HAVE YOUR LETTER OF MAY 7, 1940 (FILE NO. 668521), AS FOLLOWS:

THE COMMISSION HAS UNDER CONSIDERATION THE CLAIM OF WILLIAM H. PETTY, WHO WAS INJURED ON DECEMBER 21, 1939, WHILE EMPLOYED AS A TEMPORARY LETTER CARRIER AT THE ALHAMBRA, CALIFORNIA, POST OFFICE. HIS DISABILITY HAS CONTINUED FROM THE TIME OF THE INJURY TO THE PRESENT DATE.

THIS CLAIMANT INFORMED THE COMMISSION THAT HE WAS RECEIVING $2 A MONTH AS A MEMBER OF THE REGULAR ARMY RESERVE, AND IN RESPONSE TO AN INQUIRY THE ADJUTANT GENERAL, WAR DEPARTMENT, HAS FURNISHED THE FOLLOWING INFORMATION UNDER THE DATE OF APRIL 27, 1940:

" WILLIAM H. PETTY, A MEMBER OF THE REGULAR ARMY RESERVE, RECEIVED PAY IN THE AMOUNT OF $7.93 FOR THE PERIOD FROM AUGUST 26, 1939, TO DECEMBER 24, 1939, INCLUSIVE, PURSUANT TO AUTHORITY CONTAINED IN SECTION 30, NATIONAL DEFENSE ACT, AS AMENDED BY ACT OF APRIL 25, 1938 ( PUBLIC, NO. 491, 75TH CONGRESS, 3D SESSION). HE IS DUE ALLOWANCES FROM DECEMBER 25, 1939, WHICH HAVE NOT YET BEEN PAID.'

YOUR DECISION IS REQUESTED AS TO WHETHER THE RECEIPT BY MR. PETTY OF SUCH PAYMENTS AS A MEMBER OF THE REGULAR ARMY RESERVE CONSTITUTES A BAR TO CONCURRENT PAYMENT OF COMPENSATION BY THIS COMMISSION, IN VIEW OF THE PROVISIONS OF SECTION 7 OF THE COMPENSATION ACT OF SEPTEMBER 7, 1916, OR WHETHER THE PAYMENTS MAY BE CONSIDERED AS A RETURN FOR SERVICES ACTUALLY PERFORMED, OR AS A PENSION FOR SERVICE IN THE ARMY OF THE UNITED STATES, WITHIN THE MEANING OF THE EXCEPTIONS IN SECTION 7.

REFERENCE IS MADE TO THE DECISIONS OF YOUR OFFICE DATED OCTOBER 3, 1938 (A-95378), MARCH 25, 1939 (A-43502), AND JANUARY 25, 1940 (B 7663).

PENDING YOUR DECISION COMPENSATION HAS BEEN AWARDED AND PAID TO MARCH 31, 1940, WITH DEDUCTIONS AT THE RATE OF $2 PER MONTH.

SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 743, PROVIDES AS FOLLOWS:

THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, 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 ACT OF APRIL 25, 1938, 52 STAT. 221, PROVIDES AS FOLLOWS:

THAT SECTION 30 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, BE, AND THE SAME IS HEREBY, AMENDED BY STRIKING OUT THE SAME AND INSERTING THE FOLLOWING IN LIEU THEREOF:

"SEC. 30. THE REGULAR ARMY RESERVE.--- UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE THERE SHALL BE ORGANIZED AND MAINTAINED AS A PART OF THE REGULAR ARMY AND IN ADDITION TO THE AUTHORIZED STRENGTH THEREOF OTHERWISE PROVIDED A REGULAR ARMY RESERVE. ANY PERSON WHO HAS SERVED IN THE REGULAR ARMY AND WHO HAS BEEN HONORABLY DISCHARGED THEREFROM, AND WHO IS LESS THAN THIRTY-SIX YEARS OF AGE MAY, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, BE REENLISTED FOR THE REGULAR ARMY RESERVE. EACH SOLDIER THUS REENLISTED SHALL BE ENTITLED TO RECEIVE, DURING EACH YEAR OF HIS SERVICE IN THE REGULAR ARMY RESERVE, AN ENLISTMENT ALLOWANCE OF $24 PER ANNUM PAYABLE IN INSTALLMENTS UNDER SUCH REGULATIONS AND CONDITIONS AS THE PRESIDENT MAY PRESCRIBE. SERVICE IN THE REGULAR ARMY RESERVE NOT ON ACTIVE DUTY SHALL CONFER NO RIGHT TO PAY, LONGEVITY PAY, RETIREMENT OR RETIRED PAY, OR ANY OTHER EMOLUMENTS UPON MEMBERS THEREOF EXCEPT AS PROVIDED IN THIS SECTION; AND MEMBERS OF THE REGULAR ARMY RESERVE SHALL BECOME ENTITLED TO PENSIONS ONLY DUE TO DISABILITY INCURRED WHILE ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES. ACTIVE DUTY FOR SUCH PURPOSES SHALL BE DEEMED TO BEGIN ON THE DATE OF ACCEPTANCE FOR SUCH DUTY FOLLOWING COMPLIANCE WITH THE ORDER TO REPORT FOR ACTIVE DUTY AND SHALL TERMINATE WHEN RELIEVED OR DISCHARGED FROM SUCH DUTY. MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY. ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE BUT NOT TO EXCEED $150. WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. WITHIN SIX MONTHS AFTER THE TERMINATION OF AN EMERGENCY DECLARED BY THE PRESIDENT, THEY SHALL BE PLACED IN AN INACTIVE STATUS OR DISCHARGED, WHICHEVER IS APPROPRIATE.

"MEMBERS OF THE REGULAR ARMY RESERVE SHALL BE SUBJECT TO MILITARY LAW ONLY FROM THE DATE THEY ARE REQUIRED TO OBEY AN ORDER TO REPORT FOR ACTIVE DUTY.'

ARMY REGULATIONS NO. 155-5, DATED FEBRUARY 16, 1939, ISSUED PURSUANT TO THE QUOTED STATUTE, PROVIDES IN SECTION 1, PARAGRAPH 2, THAT "MEMBERS OF THE REGULAR ARMY RESERVE WILL BE IN AN INACTIVE STATUS EXCEPT WHEN ORDERED TO ACTIVE DUTY UPON THE DECLARATION OF AN EMERGENCY BY THE PRESIDENT.' ITALICS SUPPLIED.) IT WOULD SEEM CLEAR FROM THE TERMS OF THE STATUTE AND REGULATION THAT THE PAYMENTS DESIGNATED IN THE STATUTE AS "ENLISTMENT ALLOWANCE" AT THE RATE OF $24 PER ANNUM ARE NOT MADE TO MEMBERS OF THE REGULAR ARMY RESERVE "IN RETURN FOR SERVICES ACTUALLY PERFORMED" (QUOTING FROM SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT); RATHER, SUCH PAYMENTS APPEAR IN THE NATURE OF A RETAINER FOR THE PRIVILEGE OF HAVING THE ENLISTED MAN AVAILABLE FOR SERVICES TO BE PERFORMED IN AN EMERGENCY. ALSO, SUCH PAYMENTS WOULD NOT CONSTITUTE A PENSION. SEE DECISION OF SEPTEMBER 7, 1932, A-43502, WHEREIN IT WAS STATED IN PERTINENT PART AS FOLLOWS:

IN DECISIONS OF MAY 10, 1923, 2 COMP. GEN. 743, AND SEPTEMBER 30, 1926, 6 COMP. GEN. 223, IT WAS HELD THAT THE RETAINER PAY RECEIVED BY TRANSFERRED MEMBERS OF THE FLEET NAVAL RESERVE IS IN THE NATURE OF RETIRED PAY WITHIN THE MEANING OF THE WORLD WAR VETERANS' ACT. SINCE NEITHER RETAINER PAY NOR RETIRED PAY IS A PENSION FOR SERVICE IN THE NAVY, PAYMENT TO THIS MAN OF DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT WHILE HE IS IN RECEIPT OF RETAINER OR RETIRED PAY, BASED ON HIS STATUS IN THE NAVAL RESERVE, WOULD BE AUTHORIZED ONLY IF THE LATTER PAYMENT IS "IN RETURN FOR SERVICES ACTUALLY PERFORMED.' THIS PHRASE HAS REFERENCE TO PAYMENTS OF COMPENSATION CURRENTLY WITH THE PERFORMANCE OF SERVICE, AND NOT PAYMENTS BASED ON PAST SERVICE, AS RETIRED PAY, OR FOR SERVICES POSSIBLY TO BE PERFORMED, AS RETAINER PAY.

HENCE, PAYMENTS TO MEMBERS OF THE REGULAR ARMY RESERVE ON INACTIVE DUTY DO NOT FALL WITHIN ANY OF THE EXCEPTIONS TO THE INHIBITION CONTAINED IN SECTION 7 OF THE EMPLOYEES' COMPENSATION ACT AND, THEREFORE, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT, UNDER THE TERMS OF SAID SECTION OF THE STATUTE, THE EMPLOYEE "SHALL NOT RECEIVE" SUCH PAYMENTS FROM THE UNITED STATES "AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION" UNDER THE EMPLOYEES' COMPENSATION ACT.