B-120571, AUGUST 17, 1954, 34 COMP. GEN. 72

B-120571: Aug 17, 1954

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IS MATTER FOR ADMINISTRATIVE DETERMINATION. IS APPLICABLE TO ALL CASES OF DUAL EMPLOYMENT ENTERED INTO ON OR AFTER JANUARY 1. WHETHER THE OFFICERS CONCERNED WERE RETIRED PRIOR OR SUBSEQUENT THERETO. IS APPLICABLE TO ALL CASES OF DISABILITY WHICH ARE INCURRED DURING AN ENLISTMENT OR EMPLOYMENT BETWEEN DECEMBER 7. THEREFORE A NAVY OFFICER WHO WAS INJURED IN CRASH OF TRAINING AIRCRAFT ON DECEMBER 19. 1954: REFERENCE IS MADE TO LETTER OF JUNE 23. DECISION IS REQUESTED AS TO WHETHER. IS ENTITLED TO RECEIVE RETIREMENT PAY FROM THE NAVY AFTER MARCH 23. THE PROVISO IN THE FOREGOING STATUTE WAS AMENDED BY THE ACT OF FEBRUARY 20. IT APPEARS THAT HE WAS RETIRED IN 1947. WHILE HE WAS INSTRUCTING A STUDENT IN A TRAINING PLANE.

B-120571, AUGUST 17, 1954, 34 COMP. GEN. 72

DOUBLE COMPENSATION RESTRICTION - INSTRUMENTALITY OF WAR EXEMPTION - ACT OF FEBRUARY 20, 1954 CLASSIFICATION OF TRAINING AIRCRAFT AS INSTRUMENTALITY OF WAR, WITHIN THE MEANING OF THE EXEMPTION TO THE COMPENSATION RESTRICTION OF SECTION 212 (B) OF THE ECONOMY ACT OF 1932, AS AMENDED BY THE ACT OF FEBRUARY 20, 1954, IS MATTER FOR ADMINISTRATIVE DETERMINATION. THE PROVISO IN PARAGRAPH (B) OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED BY THE ACT OF FEBRUARY 20, 1954, WHICH PROVIDES THAT EFFECTIVE JANUARY 1, 1951, THE RESTRICTIONS ON DUAL EMPLOYMENT CONTAINED THEREIN SHALL NOT APPLY TO OFFICERS RETIRED FOR DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY BETWEEN DECEMBER 7, 1941, AND DECEMBER 31, 1946, IS APPLICABLE TO ALL CASES OF DUAL EMPLOYMENT ENTERED INTO ON OR AFTER JANUARY 1, 1951, WHETHER THE OFFICERS CONCERNED WERE RETIRED PRIOR OR SUBSEQUENT THERETO. THE "INSTRUMENTALITY OF WAR" EXEMPTION TO THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT, AS AMENDED BY THE ACT OF FEBRUARY 20, 1954, IS APPLICABLE TO ALL CASES OF DISABILITY WHICH ARE INCURRED DURING AN ENLISTMENT OR EMPLOYMENT BETWEEN DECEMBER 7, 1941, AND DECEMBER 31, 1946, AND THEREFORE A NAVY OFFICER WHO WAS INJURED IN CRASH OF TRAINING AIRCRAFT ON DECEMBER 19, 1942, MAY RECEIVE CONCURRENTLY PAY AND CIVILIAN COMPENSATION AT SALARY IN EXCESS OF $3,000 PER ANNUM.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, AUGUST 17, 1954:

REFERENCE IS MADE TO LETTER OF JUNE 23, 1954, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, FORWARDING FOR MY CONSIDERATION SECOND ENDORSEMENT OF JUNE 17, 1954, OF THE JUDGE ADVOCATE GENERAL ( JAG:I:2:WEN:MK), TOGETHER WITH RELATED PAPERS. UPON THE BASIS OF FACTS AND CIRCUMSTANCES THEREIN SET FORTH, DECISION IS REQUESTED AS TO WHETHER, UNDER THE AMENDMENT OF THE PROVISO IN PARAGRAPH (B) OF SECTION 212 OF THE ECONOMY ACT, 47 STAT. 406 BY THE ACT OF FEBRUARY 20, 1954, 68 STAT. 18, LIEUTENANT FRANK J. KOPECKY, U.S. NAVAL RESERVE RETIRED, IS ENTITLED TO RECEIVE RETIREMENT PAY FROM THE NAVY AFTER MARCH 23, 1951, THE DATE ON WHICH HE ACCEPTED EMPLOYMENT IN A FEDERAL CIVILIAN POSITION AT A SALARY IN EXCESS OF $3,000 PER ANNUM.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 5 U.S.C. 59A, PRIOR TO THE 1954 AMENDMENT, PROVIDED SO FAR AS HERE MATERIAL, AS FOLLOWS:

(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 I, PARAGRAPH I. (ITALICS SUPPLIED.)

THE PROVISO IN THE FOREGOING STATUTE WAS AMENDED BY THE ACT OF FEBRUARY 20, 1954, 68 STAT. 18, TO READ AS FOLLOWS:

PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OF EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A) PART I, PARAGRAPH I. (ITALICS SUPPLIED.)

SEC. 2. THE AMENDMENT MADE BY THE FIRST SECTION OF THIS ACT SHALL TAKE EFFECT AS OF JANUARY 1, 1951.

IN THE CASE OF LIEUTENANT KOPECKY, IT APPEARS THAT HE WAS RETIRED IN 1947, AS A RESULT OF INJURIES RECEIVED IN A PLANE CRASH DECEMBER 19, 1942, WHILE HE WAS INSTRUCTING A STUDENT IN A TRAINING PLANE. IT WAS THE DETERMINATION OF THE JUDGE ADVOCATE GENERAL'S OFFICE THAT THE OFFICER WAS INJURED AS A RESULT OF AN "ACCIDENT" RATHER THAN THROUGH AN "EXPLOSION" AND THAT "IT COULD NOT BE DEEMED THAT SUBJECT OFFICER'S DISABILITY RESULTED FROM AN EXPLOSION OF AN INSTRUMENTALITY OF ," BUT NO DETERMINATION WAS MADE AT THAT TIME THAT THE TRAINING PLANE WAS AN INSTRUMENTALITY OF WAR. LIEUTENANT KOPEKY IN 1952 FILED A CLAIM IN THIS OFFICE FOR RETIRED PAY FOR THE PERIOD MARCH 23, 1951 THROUGH DECEMBER 31, 1951, BUT IT WAS DISALLOWED BY SETTLEMENT OF JUNE 3, 1952, UPON THE GROUND THAT HIS DISABILITY WAS NOT SHOWN TO HAVE BEEN THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR--- A CONDITION WHICH, IF ESTABLISHED, WOULD COME WITHIN THE EXCEPTION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF 1932.

IN CONNECTION WITH THAT CASE, THREE QUESTIONS ARE PRESENTED, NAMELY: (1) IS A TRAINING AIRCRAFT AN INSTRUMENTALITY OF WAR; (2) MUST THE RETIREMENT BE ON AND AFTER JANUARY 1, 1951, OR DOES THE AMENDMENT APPLY ONLY TO MILITARY BENEFITS PAYABLE ON AND AFTER THAT DATE; AND (3) WAS THE DISABILITY INCURRED DURING THE ENLISTMENT OF EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBER 1, PART I, PARAGRAPH I?

QUESTION NO. (1) INVOLVES A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND SUCH DETERMINATION, WHEN MADE, ORDINARILY WOULD NOT BE FOR QUESTIONING BY THIS OFFICE UNLESS IT BE FOUND UNREASONABLE, INSUFFICIENTLY SUPPORTED OR CONTRARY TO THE LAW AND EVIDENCE.

WITH RESPECT TO QUESTION NO. (2), IT IS MY VIEW, AND IT IS SO HELD, THAT SINCE SECTION 212 OF THE ECONOMY ACT IS A RESTRICTION UPON EMPLOYMENT OF A RETIRED OFFICER, AND SINCE THE AMENDMENT EFFECTIVE JANUARY 1, 1951, DOES NOT ADD TO THE EXCEPTIONS TO ITS RESTRICTIONS BY SPECIFICALLY REQUIRING THAT THE RETIREMENT BE BEFORE OR AFTER THAT DATE, THE AMENDMENT IS APPLICABLE TO ALL CASES OF DUAL EMPLOYMENT, OTHERWISE FOR CONSIDERATION UNDER THAT STATUTE, ENTERED INTO ON OR AFTER THAT DATE.

REFERRING TO QUESTION NO. (3), PARAGRAPH 9 OF THE JUDGE ADVOCATE GENERAL'S INDORSEMENT STATES AS FOLLOWS:

IT IS ALSO REQUIRED, IN ORDER TO PLACE THE CASE OF SUBJECT OFFICER OUTSIDE THE RESTRICTIONS OF THE 1932 ACT, AS AMENDED, THAT THE DISABILITY SHALL HAVE BEEN "INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I," THAT IS, DURING ONE OF THE PERIODS OF HOSTILITY AS DEFINED BY THE REGULATION. THAT REGULATION WHICH APPEARS IN CHAPTER 12-A, VETERANS REGULATIONS, TITLE 38, U.S.C., DEFINES THE WORLD WAR II PERIOD, THE PERIOD APPLICABLE IN THIS CASE, AS THE PERIOD BETWEEN DECEMBER 7, 1941 AND PRIOR TO THE TERMINATION OF HOSTILITIES INCIDENT TO WORLD WAR II AS DETERMINED BY PROCLAMATION OF THE PRESIDENT OR BY CONCURRENT RESOLUTION OF THE CONGRESS. PROCLAMATION NO. 2714 OF THE PRESIDENT DATED DECEMBER 31, 1936 (12 F.R. 1; 50 U.S.C. WAR APPENDIX, FOLLOWING SECTION 601) PROCLAIMS THE CESSATION OF HOSTILITIES OF WORLD WAR II AS BEING EFFECTIVE 12 O-CLOCK NOON, DECEMBER 31, 1946. IT IS APPARENT THEREFORE, THAT THE CAUSATION OF DISABILITY IN THE CASE OF SUBJECT OFFICER OCCURRED DURING THE PERIOD OF WORLD WAR II AS DEFINED BY THE REFERENCED REGULATION. THE RECORD FURTHER DISCLOSES THAT THE DISABILITY IN QUESTION WAS INCURRED IN LINE OF DUTY.

I CONCUR IN THE FOREGOING OPINION OF THE JUDGE ADVOCATE GENERAL THAT THE INJURY IN THIS CASE OCCURRED DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN THE VETERANS REGULATION.

IN LIGHT OF THE FOREGOING, LIEUTENANT KOPECKY NOW IS ENTITLED TO HIS RETIRED PAY FROM THE BEGINNING OF THE DATE OF HIS CIVILIAN EMPLOYMENT, IN THE ABSENCE OF OTHER OBJECTIONS, AND PROVIDED IT BE ADMINISTRATIVELY DETERMINED THAT THE TRAINING PLANE IN QUESTION WAS AN INSTRUMENTALITY OF WAR.