B-102755, SEP. 25, 1961

B-102755: Sep 25, 1961

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JULY 21. MAKING CLAIM AGAINST THE UNITED STATES FOR SUMS DUE YOU BECAUSE OF RETIRED PAY WITHHELD FOR THE TIME YOU WERE EMPLOYED BY THE VETERANS ADMINISTRATION DURING THE PERIOD JULY 1. YOU STATE THAT RETIRED PAY WAS RECEIVED FOR THE PERIOD JULY 1. FOR WHICH RETIRED PAY WAS NOT RECEIVED. WHICH WAS ALLOWED IN PART. WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. IT APPEARS THAT YOU WERE FOUND TO BE PERMANENTLY INCAPACITATED FOR ACTIVE DUTY BY AN ARMY RETIRING BOARD AND WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISQUALIFICATION EFFECTIVE FEBRUARY 28. YOU WERE CERTIFIED AS DUE RETIRED PAY FROM MARCH 1. YOU WERE EMPLOYED BY THE VETERANS ADMINISTRATION FROM JULY 2.

B-102755, SEP. 25, 1961

TO MAJOR JOHN W. COPELAND, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1961, MAKING CLAIM AGAINST THE UNITED STATES FOR SUMS DUE YOU BECAUSE OF RETIRED PAY WITHHELD FOR THE TIME YOU WERE EMPLOYED BY THE VETERANS ADMINISTRATION DURING THE PERIOD JULY 1, 1945, TO JULY 8, 1948. YOU STATE THAT RETIRED PAY WAS RECEIVED FOR THE PERIOD JULY 1, 1947, TO JULY 9, 1948, LEAVING TWO YEARS, JULY 1, 1945, TO JULY 1, 1947, FOR WHICH RETIRED PAY WAS NOT RECEIVED.

SINCE YOU PREVIOUSLY SUBMITTED A CLAIM ON JULY 1, 1957, FOR WITHHELD RETIRED PAY FOR THE SAME PERIOD, WHICH WAS ALLOWED IN PART, BY OFFICE SETTLEMENT DATED DECEMBER 17, 1957, COVERING THE PERIOD JULY 1, 1947, TO JULY 9, 1948, YOUR LETTER OF JULY 21, WHICH CONTAINS A REFERENCE TO THE WATMAN CASE DECISION, WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

IT APPEARS THAT YOU WERE FOUND TO BE PERMANENTLY INCAPACITATED FOR ACTIVE DUTY BY AN ARMY RETIRING BOARD AND WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISQUALIFICATION EFFECTIVE FEBRUARY 28, 1945. FINDINGS OF AN ARMY DISABILITY REVIEW BOARD CONVENED MARCH 31 AND APRIL 22 AND 23, 1948, YOU WERE CERTIFIED AS DUE RETIRED PAY FROM MARCH 1, 1945, LESS THE VETERANS ADMINISTRATION COMPENSATION YOU HAD RECEIVED.

YOU WERE EMPLOYED BY THE VETERANS ADMINISTRATION FROM JULY 2, 1945, TO JULY 9, 1948, AT AN ANNUAL SALARY OF $3,640 OR MORE. SINCE YOUR RETIREMENT PAY WAS BASED ON A DISABILITY WHICH WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR AS THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY, THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, 5 U.S.C. 59A, WERE APPLICABLE TO YOU.

DURING THE PERIOD INVOLVED SECTION 212 PROVIDED THAT NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHOULD BE ENTITLED TO RETIRED PAY FROM THE UNITED STATES ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM A CIVILIAN POSITION, MADE THE TOTAL RETURN FROM BOTH SOURCES EXCEED $3,000 A YEAR.

EFFECTIVE JULY 1, 1947, MEMBERS OF THE OFFICERS RESERVE CORPS WERE REMOVED FROM THE SCOPE OF SECTION 212 OF THE ECONOMY ACT BY THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239. THE SETTLEMENT OF DECEMBER 17, 1957, WAS BASED UPON THIS STATUTE AND YOU WERE ADVISED THAT SINCE THE STATUTE WAS NOT RETROACTIVE IN EFFECT, NO ALLOWANCE MAY BE MADE FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF THE STATUTE. THERE IS NO PROVISION OF LAW IN EFFECT DURING SUCH PRIOR PERIOD WHICH EXEMPTED YOU FROM THE RESTRICTIONS OF THE ECONOMY ACT. THE WATMAN CASE (WATMAN V. UNITED STATES, COURT OF CLAIMS NO. 189-59, DECIDED MARCH 1, 1961) DOES NOT HAVE ANY APPLICATION TO A PERIOD PRIOR TO JULY 1, 1947.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 17, 1957, WAS PROPER AND IS SUSTAINED.