B-125936, OCT. 29, 1959

B-125936, OCT. 29, 1959

TO MR. FRANCIS P. NOONAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 17, 1959, WHEREIN, ON BEHALF OF MR. CHARLIE STEELMAN, YOU IN EFFECT REQUEST REVIEW OF OUR SETTLEMENT DATED MARCH 23, 1955, WHICH DISALLOWED HIS CLAIM FOR NAVY RETIRED PAY CONCURRENTLY WITH THE RECEIPT OF FEDERAL EMPLOYEES' COMPENSATION FROM FEBRUARY 27, 1951. IN YOUR LETTER YOU REFER TO THE DECISION RENDERED ON JULY 13, 1959, BY THE COURT OF CLAIMS IN THE CASE OF GEORGE V. TAWES V. UNITED STATES, C.CLS. NO. 313-58, IN SUPPORT OF THE CLAIM.

THE DECISION IN THE TAWES CASE IS TO THE EFFECT THAT 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, MAY BE PAID CONCURRENTLY WITH PAYMENT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AS AMENDED. THE DECISION AWARDED THE PLAINTIFF RETIRED PAY (BASED ON SERVICE IN THE NAVAL RESERVE) UNDER TITLE III OF THE 1948 ACT 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). THAT SECTION PROVIDED AS FOLLOWS (QUOTING FROM 10 U.S.C. 371 (B) ):

"NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES * * *.'

SEE, ALSO, SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 676, WHICH REPEALED 10 U.S.C. 371 (B). SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, CONTAINS PROVISIONS WHICH ARE TO THE SAME EFFECT AS THE PRIOR STATUTE.

IT WILL BE NOTED THAT THE STATUTORY PROVISIONS ON WHICH THE TAWES CASE WAS BASED AUTHORIZE CERTAIN BENEFITS FOR MEMBERS OF RESERVE COMPONENTS ONLY. IT APPEARS THAT ON DECEMBER 1, 1937, PRIOR TO THE PERIOD HERE INVOLVED, MR. STEELMAN WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST OF THE REGULAR NAVY. IT FOLLOWS THATMR. STEELMAN'S CLAIM FOR REGULAR NAVY RETIRED PAY CONCURRENTLY WITH THE RECEIPT OF FEDERAL EMPLOYEES' COMPENSATION IS NOT AFFECTED BY THE DECISION IN THE TAWES CASE.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING THE CLAIM FILED HERE FOR THE REGULAR NAVY RETIRED PAY IS SUSTAINED.