B-108232, MARCH 7, 1956, 35 COMP. GEN. 504

B-108232, MARCH 7, 1956, 35 COMP. GEN. 504

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - TERMINATION OF RESERVE CORPS STATUS THE TRANSFER OF A MEMBER OF THE OFFICERS' RESERVE CORPS TO THE HONORARY RESERVE IN 1948, AND TO THE ARMY OF THE UNITED STATES RETIRED LIST ON SEPTEMBER 1, 1951, PURSUANT TO TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, DID NOT AFFECT OR EXTEND THE MEMBER'S RESERVE CORPS APPOINTMENT WHICH WAS MADE IN 1946 AND WHICH WAS TERMINATED BY OPERATION OF LAW NOT LATER THAN APRIL 1, 1953, AND THEREFORE, RETIRED PAY IN ADDITION TO CIVILIAN COMPENSATION MAY BE PAID ONLY FOR THE PERIOD FROM SEPTEMBER 1, 1951, TO APRIL 1, 1953.

TO GEORGE H. FOSTER, WASHINGTON, D.C., MARCH 7, 1956:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1955, CITING THE DECISION OF THE COURT OF CLAIMS DATED NOVEMBER 2, 1954, IN THE CASE OF TANNER ET AL. V. UNITED STATES, 129 C.1CLS. 792, AND REQUESTING, ON THE BASIS OF THAT DECISION, THAT FURTHER CONSIDERATION BE GIVEN YOUR CLAIM FOR RETIRED PAY AS A COLONEL, ARMY OF THE UNITED STATES, BEGINNING SEPTEMBER 1, 1951, THE DATE YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 34 U.S.C. 440H.

IN THE TANNER CASE THE COURT PROCEEDED ON THE BASIS THAT THE PLAINTIFFS COVERED BY THE DECISION OF NOVEMBER 2, 1954, HAD THE REQUISITE RESERVE STATUS TO ENTITLE THEM TO THE BENEFITS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 10 U.S.C., 1946 USED. SUPP. V, 371 (B), WHICH THE COURT HELD EXEMPTED THEM FROM THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A. HOWEVER, SUCH BENEFITS ACCRUED TO A PERSON PRIOR TO JANUARY 1, 1953, ONLY IF HE WAS A "MEMBER OF THE OFFICERS' RESERVE CORPS" AND NOW ACCRUE TO A PERSON ONLY IF HE IS A "MEMBER OF (ONE OF) THE RESERVE COMPONENTS OF THE ARMED FORCES," IN VIEW OF THE AMENDMENT TO THE 1947 ACT WHICH WAS ACCOMPLISHED BY SECTION 804 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, 10 U.S.C. 371C, EFFECTIVE JANUARY 1, 1953.

YOU HAVE STATED THAT YOU WERE A MEMBER OF THE OFFICERS' RESERVE CORPS AT THE OUTBREAK OF WORLD WAR II; THAT ON APRIL 6, 1946, YOU WERE APPOINTED COLONEL IN THE OFFICERS' RESERVE CORPS; THAT YOU WERE TRANSFERRED TO THE HONORARY RESERVE AT YOUR REQUEST ON OCTOBER 12, 1948, UNDER AUTHORITY OF SECTION 308 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1090, U.S.C. 1036G; AND THAT ON AUGUST 31, 1951, YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO TITLE III OF THE 1948 ACT.

YOUR APPOINTMENT OF APRIL 6, 1946, AS A COLONEL IN THE OFFICERS' RESERVE CORPS WAS MADE UNDER SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C., 1946 USED., 352, 358, AND IT APPEARS TO BE YOUR BELIEF THAT BY REASON OF SUCH APPOINTMENT, YOUR TRANSFER TO THE HONORARY RESERVE IN 1948, AND THE PLACING OF YOUR NAME ON THE ARMY OF THE UNITED STATES RETIRED LIST IN 1951, YOU NOW ARE A DE JURE MEMBER OF THE ARMY RESERVE, A RESERVE COMPONENT UNDER THE DEFINITION OF THAT TERM APPEARING IN SECTION 202 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 483, 50 U.S.C. 922.

SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHICH WAS REPEALED BY SECTION 803 OF THE 1952 ACT, PROVIDED THAT APPOINTMENTS IN THE OFFICER'S RESERVE CORPS BELOW THE GRADE OF BRIGADIER GENERAL SHALL BE MADE BY THE PRESIDENT, THAT ALL SUCH APPOINTMENTS SHALL BE FOR A PERIOD OF FIVE YEARS, BUT THAT AN APPOINTMENT IN FORCE AT THE OUTBREAK OF WAR "SHALL CONTINUE IN FORCE UNTIL SIX MONTHS AFTER ITS TERMINATION.' PARAGRAPH 7, SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 513, PROVIDES THAT AN APPOINTMENT OTHER THAN THAT OF A MEMBER OF THE REGULAR ARMY MADE IN TIME OF WAR "SHALL CONTINUE UNTIL SIX MONTHS AFTER ITS TERMINATION.'

BY PROCLAMATION 2974, APRIL 28, 1952, THE PRESIDENT OF THE UNITED STATES PROCLAIMED THAT THE NATIONAL EMERGENCIES DECLARED TO EXIST BY PROCLAMATIONS OF SEPTEMBER 8, 1939, AND MAY 27, 41,"TERMINATED THIS DAY UPON THE ENTRY INTO FORCE OF THE TREATY OF PEACE WITH JAPAN.' SECTION 1 (C) OF THE EMERGENCY POWERS CONTINUATION ACT, 66 STAT. 333, 10 U.S.C. 352, PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE TERMINATION ON APRIL 28, 1952, OF THE STATE OF WAR WITH JAPAN AND OF THE NATIONAL EMERGENCIES MENTIONED ABOVE, AND NOTWITHSTANDING ANY PROCLAMATION OF PEACE WITH RESPECT TO SUCH WAR, THE PRESIDENT WAS AUTHORIZED TO CONTINUE IN EFFECT UNTIL AND INCLUDING APRIL 1, 1953, ALL APPOINTMENTS AS OFFICERS OR WARRANT OFFICERS OF THE ARMY AND THE AIR FORCE WHICH WOULD TERMINATE AFTER APRIL 27, 1952, AND BEFORE APRIL 1, 1953, UNDER CERTAIN PROVISIONS OF LAW INCLUDING SECTIONS 37 AND 127A OF THE NATIONAL DEFENSE ACT. SUCH EXTENSIONS TO APRIL 1, 1953, WERE PROVIDED FOR IN EXECUTIVE ORDER NO. 10397, SEPTEMBER 25, 1952. THOSE PROVISIONS OF LAW AND REGULATIONS WILL BE REGARDED AS EFFECTING AN EXTENSION OF YOUR RESERVE MEMBERSHIP TO APRIL 1, 1953. HOWEVER, THERE BEING NO INDICATION THAT YOU WERE GIVEN ANY RESERVE APPOINTMENT AFTER 1946, IT IS OUR VIEW THAT YOU CEASED TO BE A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES ON APRIL 1, 1953. COMPARE MILEY V. MARSHALL ET AL., 100 F.1SUPP. 1012 (AFFIRMED IN 193 F.2D 712).

YOUR TRANSFER TO THE HONORARY RESERVE IN 1948 DID NOT EXTEND THE TERM OF YOUR APPOINTMENT IN THE OFFICERS' RESERVE CORPS. THE HONORARY RESERVE WAS STATED TO HAVE BEEN ESTABLISHED AS A SECTION IN THE OFFICERS' RESERVE CORPS UNDER AUTHORITY CONTAINED IN SECTION 37 OF THE NATIONAL DEFENSE ACT. SEE SECTION VI, WAR DEPARTMENT CIRCULAR 356, DECEMBER 3, 1946, AND SECTION I, DEPARTMENT OF THE ARMY CIRCULAR 246, AUGUST 13, 1948. THERE APPEARS TO BE NO LANGUAGE IN SECTION 37 WHICH WOULD PERMIT THE DEPARTMENT OF THE ARMY TO CONTINUE MEMBERSHIP IN THE OFFICERS' RESERVE CORPS FOR A PERIOD LONGER THAN IS PROVIDED IN THAT SECTION. THE INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS WAS DESIGNATED FOR EARLY ABOLITION AT THE TIME THE HONORARY RESERVE WAS ESTABLISHED. PRIOR TO THAT TIME, IT WAS RECOGNIZED THAT A REAPPOINTMENT IN THE INACTIVE RESERVE WAS NECESSARY IN ORDER TO CONTINUE SUCH RESERVE STATUS AFTER EXPIRATION OF THE STATUTORY PERIOD OF APPOINTMENT. SEE PARAGRAPHS 27C AND 70E, ARMY REGULATIONS 140- 5, JUNE 17, 1941.

YOUR TRANSFER TO THE ARMY OF THE UNITED STATES RETIRED LIST DID NOT AFFECT THE TERM OF YOUR APPOINTMENT IN THE OFFICERS' RESERVE CORPS. SINCE BOTH MEMBERS AND NON-MEMBERS OF RESERVE COMPONENTS MAY BE TRANSFERRED TO OR PLACED ON SUCH LIST, IF THEY ARE OTHERWISE ELIGIBLE (28 COMP. GEN. 510), THE PLACEMENT OF YOUR NAME ON THAT LIST DID NOT HAVE THE EFFECT OF CONFERRING UPON YOU, OR CONTINUING FOR YOU, MEMBERSHIP IN A RESERVE COMPONENT. MOREOVER, IT IS OUR VIEW THAT EVEN IF YOUR HONORARY RESERVE STATUS WAS CONSIDERED TO HAVE CONTINUED AFTER YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN 1951, AND SOME ACTION WAS TAKEN, UNDER SECTION 213 (A) OF THE 1952 ACT, TO PLACE YOU IN THE RETIRED RESERVE CREATED BY THAT ACT, SUCH ACTION COULD NOT PROPERLY BE CONSIDERED TO HAVE CONTINUED YOUR RESERVE MEMBERSHIP INDEFINITELY, CONTRARY TO THE TERMS OF THE APPOINTMENT WHICH GAVE YOU THAT MEMBERSHIP, PARTICULARLY SINCE SECTION 224 OF THE 1952 ACT SPECIFICALLY PROVIDED THAT "THE TERM OF * * * (A RESERVE OFFICER-S) PRESENT APPOINTMENT SHALL NOT BE CHANGED BY THIS SECTION" UNLESS HE "SHALL AGREE IN WRITING TO HAVE HIS CURRENT APPOINTMENT CONTINUED FOR AN INDEFINITE TERM.'

CONCERNING THE 31 DAYS YOU STATE YOU SERVED ON ACTIVE DUTY WITH THE OKLAHOMA NATIONAL GUARD IN 1908 AND 1909, YOU ARE INFORMED THAT CREDIT MAY BE ALLOWED ONLY FOR SUCH DAYS AS OFFICIAL RECORDS SHOW YOU WERE ON ACTIVE DUTY. SINCE NEITHER THIS OFFICE NOR THE DEPARTMENT OF THE ARMY APPEARS TO HAVE ANY RECORD OF SUCH SERVICE IN EXCESS OF THE 11 DAYS REPORTED BY THE DEPARTMENT OF THE ARMY FOR THOSE YEARS, YOU MAY BE CREDITED ONLY WITH THAT NUMBER OF DAYS. YOUR MEMORY BASED ON EVENTS WHICH OCCURRED OVER 45 YEARS AGO MAY NOT BE ACCEPTED TO ESTABLISH FACTS NOT SHOWN IN OFFICIAL RECORDS. 23 COMP. GEN. 334, 337.

ACCORDINGLY, UPON VERIFICATION OF ALL THE FACTS NECESSARY TO DETERMINE THE AMOUNT TO WHICH YOU ARE ENTITLED, A SETTLEMENT WILL ISSUE FOR THE PROPER AMOUNT FOUND DUE FOR THE PERIOD SEPTEMBER 1, 1951, TO APRIL 1, 1953. SEE OUR DECISION OF MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, TO THE SECRETARY OF DEFENSE.