B-123753, APR. 18, 1963

B-123753, APR. 18, 1963

TO THE POSTMASTER GENERAL:

YOUR LETTER OF FEBRUARY 28, 1963, REQUESTED A DECISION WHETHER IN VIEW OF THE LIMITATIONS IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, CAPTAIN ALLAN COLLETTE, USNR, RETIRED, IS ENTITLED TO HIS SALARY AS A CIVILIAN EMPLOYEE OF THE POST OFFICE DEPARTMENT IN ADDITION TO HIS RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN THE NAVY.

SECTION 59A, 5 U.S. CODE, PROVIDES IN PERTINENT PART 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 ON 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 $10,000 * * *.'

A STATEMENT OF SERVICE FURNISHED BY THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, SHOWS THAT CAPTAIN COLLETTE WAS ON ACTIVE DUTY FROM MAY 12, 1941, TO SEPTEMBER 30, 1946, AS A RESERVE OFFICER. NOVEMBER 20, 1945, HE WAS APPOINTED TO THE TEMPORARY RANK OF CAPTAIN. WAS RETIRED FOR PHYSICAL DISABILITY IN THE RANK OF COMMANDER EFFECTIVE OCTOBER 1, 1946, AND WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF CAPTAIN, THE HIGHEST RANK TEMPORARILY HELD BY HIM WHILE ON ACTIVE DUTY, WITH THE RETIRED PAY OF THAT RANK EFFECTIVE FROM THE DATE OF HIS RETIREMENT.

IN THE TANNER CASE, 129 CT.CL. 792, THE COURT HELD THAT TANNER, RESERVE OFFICER WHO WAS RECEIVING RETIRED PAY UNDER AUTHORITY OF TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087, WAS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT BECAUSE OF THE LANGUAGE IN SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, WHICH PROVIDED THAT A MEMBER OF A RESERVE COMPONENT COULD HOLD CIVILIAN EMPLOYMENT WITH THE GOVERNMENT AND RECEIVE HIS COMPENSATION INCIDENT TO THAT EMPLOYMENT "IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS.' SECTION 1 (B) OF THE 1947 ACT WAS AMENDED BY SECTION 804 OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 506, TO EXTEND ITS COVERAGE TO MEMBERS OF ALL "RESERVE COMPONENTS OF THE ARMED FORCES," INCLUDING MEMBERS OF THE NAVAL RESERVE, EFFECTIVE JANUARY 1, 1953. BASED ON OTHER COURT DECISIONS, WE EXTENDED THE RULE OF THE TANNER CASE TO INCLUDE RESERVE OFFICERS WHOSE OFFICERS WHOSE RETIRED PAY WAS AUTHORIZED UNDER OTHER LAWS THAN TITLE III OF THE 1948 ACT, INCLUDING NAVAL RESERVE OFFICERS RETIRED FOR DISABILITY ON OR AFTER JANUARY 1, 1953. SEE 36 COMP. GEN. 808.

IN ITS DECISION IN THE WATMAN CASE, CT.CL.NO. 189-59, DECIDED MARCH 1, 1961, THE COURT HELD THAT SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED--- SEE THE CURRENT PROVISIONS CONTAINED IN 5 U.S.C. 30R (C/ -- PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT OF THE ARMED FORCES.

IN THE CIRCUMSTANCE DISCLOSED, IT APPEARS THAT CAPTAIN COLLETTE WAS A MEMBER OF, AND BECAME ENTITLED TO RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT OF THE ARMED FORCES. THEREFORE, IT IS CONCLUDED THAT HE IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT FOR THE PERIOD AFTER THE DATE OF HIS REEMPLOYMENT, OCTOBER 1, 1955, AND HIS CIVILIAN COMPENSATION MAY BE ADJUSTED RETROACTIVELY ON THAT BASIS, IF OTHERWISE PROPER. COMPARE B 136459, JULY 9, 1962, 42 COMP. GEN. - . ..END :