B-122353, B-125936, OCTOBER 29, 1959, 39 COMP. GEN. 321

B-122353,B-125936: Oct 29, 1959

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THAT THE MONEY ALLOWANCE PAID FOR DISABLING INJURIES IN CIVILIAN EMPLOYMENT UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" AS THAT TERM IS USED IN SECTION 1 (B) OF THE ACT OF JULY 1. WHICH PERMITS RETIRED MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICE TO RECEIVE RETIRED PAY BASED ON RESERVE SERVICE CONCURRENTLY WITH CIVILIAN DISABILITY COMPENSATION WILL BE FOLLOWED IN SIMILAR CASES. THE EFFECT OF THE OPINION IN THE TAWES CASE WAS TO AWARD THE PLAINTIFF RETIRED PAY. ON THE THEORY THAT THE MONEY ALLOWANCE PAID UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" WITHIN THE MEANING OF SECTION 1 (B) OF THE ACT OF JULY 1.

B-122353, B-125936, OCTOBER 29, 1959, 39 COMP. GEN. 321

MILITARY PERSONNEL - CIVILIAN DISABILITY COMPENSATION AND RETIRED PAY BASED ON RESERVE SERVICE - TAWES CASE THE RULE IN THE CASE OF GEORGE V. TAWES V. UNITED STATES, C1CLS. NO. 313 -58, THAT THE MONEY ALLOWANCE PAID FOR DISABLING INJURIES IN CIVILIAN EMPLOYMENT UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" AS THAT TERM IS USED IN SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 10 U.S.C. 371 (B), WHICH PERMITS RETIRED MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICE TO RECEIVE RETIRED PAY BASED ON RESERVE SERVICE CONCURRENTLY WITH CIVILIAN DISABILITY COMPENSATION WILL BE FOLLOWED IN SIMILAR CASES.

TO THE SECRETARY OF DEFENSE, OCTOBER 29, 1959:

THIS HAS REFERENCE TO THE DECISION RENDERED ON JULY 13, 1959, BY THE COURT OF CLAIMS IN THE CASE OF GEORGE V. TAWES V. UNITED STATES, C.1CLS. NO. 313-58, IN FAVOR OF THE PLAINTIFF, FURTHER EXTENDING THE AREA OF OPERATION OF THE RULE OF THE MULHOLLAND V. UNITED STATES, 139 C.1CLS. 507, SO AS TO PERMIT THE PAYMENT OF RETIRED PAY (AS DISTINGUISHED FROM RETAINER PAY) BASED ON SERVICE IN THE NAVAL RESERVE AND AUTHORIZED UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 34 U.S.C. 440H-440Q, CONCURRENTLY WITH THE RECEIPT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, 5 U.S.C. 751, AS AMENDED.

THE EFFECT OF THE OPINION IN THE TAWES CASE WAS TO AWARD THE PLAINTIFF RETIRED PAY, BASED ON SERVICE IN THE NAVAL RESERVE, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, FOR THE PERIOD FROM JANUARY 1, 1953, TO DATE OF JUDGMENT, CONCURRENTLY WITH THE RECEIPT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, ON THE THEORY THAT THE MONEY ALLOWANCE PAID UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" WITHIN THE MEANING OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED, 10 U.S.C. 371 (B). IT WILL BE NOTED THAT THIS STATUTORY PROVISION ON WHICH THE TAWES CASE WAS BASED AUTHORIZES CERTAIN BENEFITS FOR MEMBERS OF RESERVE COMPONENTS ONLY. SEE, ALSO, SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 676, 32 U.S.C. 53, WHICH REPEALED 10 U.S.C. 371 (B). SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 32 U.S.C. 29 (C), CONTAINS PROVISIONS WHICH ARE TO THE SAME EFFECT AS THE PRIOR STATUTE.

BY LETTER DATED AUGUST 19, 1959, THE DEPARTMENT OF JUSTICE ADVISED THAT NO FURTHER PROCEEDINGS WILL BE TAKEN BY THAT DEPARTMENT WITH RESPECT TO THE DECISION OF THE COURT DATED JULY 13, 1959, IN THE TAWES CASE. UNDER THE CIRCUMSTANCES WE HAVE CONCLUDED THAT WE WILL FOLLOW THE RULE ESTABLISHED IN THE TAWES CASE IN THE SETTLEMENT OF SIMILAR CASES.

THE DEPARTMENT CONCERNED IS AUTHORIZED TO ADJUST RETIRED PAY ACCOUNTS RETROACTIVELY IN ACCORDANCE WITH THE FOREGOING, IF OTHERWISE PROPER.