B-112074, FEB 2, 1953

B-112074, FEB 2, 1953

PRECIS-UNAVAILABLE

SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO OFFICE LETTER OF OCTOBER 29, 1952, B-112074, TO YOU, AND TO THE REPLY THERETO DATED NOVEMBER 6, BY THE ASSISTANT SECRETARY OF THE AIR FORCE, RELATIVE TO THE PROPRIETY OF THE CONCURRENT RECEIPT BY SENATOR WILLIAM R. JENNER OVER A PERIOD OF YEARS OF DISABILITY RETIREMENT PAY SUCCESSIVELY FROM THE VETERANS ADMINISTRATION, THE DEPARTMENT OF THE ARMY, AND FROM YOUR DEPARTMENT, AND COMPENSATION AS A UNITED STATES SENATOR, IN VIEW OF THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A.

THE REFERRED-TO SECTION PROVIDES AS FOLLOWS:

"(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR AN ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN 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; AND WHEN THE RETIRED PAY ACCOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM 'RETIRED PAY' SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000; PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART 1, PARAGRAPH 1. ***"

THE OFFICIAL FILE OF YOUR DEPARTMENT PERTAINING TO THE CASE OF SENATOR JENNER, WHICH WAS FORWARDED HERE AT THE REQUEST OF THIS OFFICE, ESTABLISHES THAT HE WAS RETIRED FOR DISABILITY AS A CAPTAIN, UNITED STATES AIR FORCE, AO-909909, EFFECTIVE OCTOBER 8, 1944, AND THAT HIS DISABILITY WAS CAUSED BY "CHOROIDITIS, CHRONIC, CENTRAL, BILATERAL, MODERATELY SEVERE, PROGRESSIVE, CAUSE UNDETERMINED. THE DISABILITY ON WHICH CAPTAIN JENNER'S RETIREMENT IS BASED WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, NOR WAS IT THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY." IT THUS IS APPARENT THAT SENATOR JENNER'S DISABILITY DOES NOT COME WITHIN THE EXEMPTING PROVISIONS OF THE 1932 STATUTE; HENCE, HE IS NOT ENTITLED TO RETIREMENT PAY DURING SUCH TIME AS HE IS IN RECEIPT OF COMPENSATION AS A UNITED STATES SENATOR. CF. 28 COMP. GEN. 675, AND A-84384, MAY 20, 1937.

ACCORDINGLY, NO FURTHER PAYMENTS OF RETIREMENT PAY SHOULD BE MADE TO SENATOR JENNER SO LONG AS HE RETAINS THE OFFICE OF SENATOR OF THE UNITED STATES AND RECEIVES THE COMPENSATION ATTACHED THERETO. THE AMOUNT OF RETIREMENT PAY PREVIOUSLY RECEIVED BY SENATOR JENNER DURING HIS TENURE OF OFFICE AS A SENATOR IS BEING COMPUTED BY THIS OFFICE AND UPON DETERMINATION THEREOF YOU WILL BE FURTHER ADVISED. YOUR DEPARTMENT'S FILE ON SENATOR JENNER IS BEING RETAINED HERE FOR USE IN SAID COMPUTATION AND WILL BE RETURNED AS SOON AS IT HAS SERVED ITS PURPOSE.