B-129150, B-135788, JUL. 25, 1958

B-129150,B-135788: Jul 25, 1958

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WHEN THEY WERE DE JURE MEMBERS OF THE U.S. IT WAS FURTHER HELD THAT FOR ANY PERIOD PRIOR TO JANUARY 1. PAYMENT WOULD BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD INVOLVED. SINCE MEMBERS OF OTHER RESERVE COMPONENTS WERE NOT BROUGHT WITHIN THE PROVISIONS OF THE 1947 ACT UNTIL THAT DATE. - WERE NOT RELIEVED FROM THE RESTRICTIVE PROVISIONS OF THE ECONOMY ACT OF 1932 PRIOR TO THE AMENDMENT MADE TO SECTION 1 (B). YOU SAY THAT THE RECORDS OF THE NAVY FINANCE CENTER INDICATE THAT EACH OF THE OFFICERS MENTIONED IN THE FOLLOWING QUESTIONS HAVE BEEN DE JURE MEMBERS OF THE NAVAL RESERVE CONTINUOUSLY SINCE THE DATE OF RETIREMENT.

B-129150, B-135788, JUL. 25, 1958

TO COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY:

BY LETTER DATED MAY 14, 1958, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED HERE YOUR LETTER OF APRIL 11, 1958, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE OFFICERS MENTIONED THEREIN AND OTHER OFFICERS RETIRED UNDER SIMILAR PROVISIONS OF LAW, MAY, ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, B-123382, BE CONSIDERED TO BE EXEMPT FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, DURING ANY PERIODS ON AND AFTER JANUARY 1, 1953, WHEN THEY WERE DE JURE MEMBERS OF THE U.S. NAVAL RESERVE.

IN OUR DECISION OF MARCH 2, 1956, 35 COMP. GEN. 497, WE HELD THAT WE WOULD FOLLOW THE DECISION IN TARNER V. UNITED STATES, 129 C.CLS. 792, BASED ON SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, AS A PRECEDENT FOR PAYMENT OF RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) IN THOSE CASES WHERE THE CLAIMANT, BEING OTHERWISE ENTITLED, HAS BEEN, OR MAY BE, GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AND HAS BEEN DURING THE PERIOD COVERED BY THE PAYMENT, A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES. HOWEVER, IT WAS FURTHER HELD THAT FOR ANY PERIOD PRIOR TO JANUARY 1, 1953, PAYMENT WOULD BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD INVOLVED, SINCE MEMBERS OF OTHER RESERVE COMPONENTS WERE NOT BROUGHT WITHIN THE PROVISIONS OF THE 1947 ACT UNTIL THAT DATE. IN OUR DECISION OF JUNE 11, 1957, B-123382, 36 COMP. GEN. 808, WE EXTENDED THE RULE STATED IN 35 COMP. GEN. 497 TO THOSE INDIVIDUALS WHOSE RETIRED STATUS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD DURING THE PERIOD JULY 1, 1947, TO DECEMBER 31, 1952, INCLUSIVE, OR WHOSE RETIRED STATUS AS MEMBERS OF ANY OF THE RESERVE COMPONENTS COMMENCING JANUARY 1, 1953, ENTITLE THEM TO RECEIVE RETIREMENT PAY UNDER PROVISIONS OF LAW OTHER THAN TITLE III OF THE 1948 ACT. MEMBERS OF THE NAVAL RESERVE AND THE MARINE CORPS RESERVE--- EXCEPT AS TO PAY AND ALLOWANCES RECEIVED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938--- WERE NOT RELIEVED FROM THE RESTRICTIVE PROVISIONS OF THE ECONOMY ACT OF 1932 PRIOR TO THE AMENDMENT MADE TO SECTION 1 (B), ACT OF JULY 1, 1947, 61 STAT. 239, BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, WHICH BECAME EFFECTIVE JANUARY 1, 1953.

YOU SAY THAT THE RECORDS OF THE NAVY FINANCE CENTER INDICATE THAT EACH OF THE OFFICERS MENTIONED IN THE FOLLOWING QUESTIONS HAVE BEEN DE JURE MEMBERS OF THE NAVAL RESERVE CONTINUOUSLY SINCE THE DATE OF RETIREMENT.

IN THE CASE OF CHIEF BOATSWAIN LAWRENCE A. ELDER, USNR, YOU STATE THAT HE WAS RELIEVED FROM ACTIVE DUTY ON APRIL 26, 1948, AND TRANSFERRED TO THE RETIRED LIST ON AUGUST 1, 1949, WITH THE GRADE OF CHIEF BOATSWAIN, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 417, 855C-1 AND 350G (A), AND 38 U.S.C. 6931. UNDER THOSE PROVISIONS OF LAW THE MEMBER WAS RETIRED FOR PHYSICAL DISABILITY AS A RESULT OF AN INCIDENT OF THE SERVICE. IT IS STATED THAT HE HAS BEEN PAID RETIRED PAY FROM APRIL 27, 1948, EXCEPT DURING THE PERIODS HE WAS CONSIDERED TO BE SUBJECT TO SECTION 212 OF THE ECONOMY ACT OF 1932, AND THAT DURING THE PERIOD JANUARY 1, 1953, TO JANUARY 14, 1955, HIS SALARY FROM FEDERAL CIVILIAN EMPLOYMENT EXCEEDED $3,000 A YEAR. SINCE ELDER WAS PLACED ON THE RETIRED LIST IN THE GRADE OF CHIEF BOATSWAIN, WHICH IS A COMMISSIONED WARRANT OFFICER GRADE, IT DOES NOT APPEAR THAT HE IS SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A. IN THAT CONNECTION, SEE OUR DECISION OF MARCH 7, 1958, B-129777, 37 COMP. GEN. - , TO THE SECRETARY OF DEFENSE, WHEREIN WE SAID WE WOULD FOLLOW THE DECISIONS OF THE COURT OF CLAIMS IN THE CASES OF TATE V. UNITED STATES, 136 C.CLS. 651, DECIDED NOVEMBER 7, 1956, AND ATKINS ET AL. V. UNITED STATES, C.CLS. NO. 473-56, DECIDED JANUARY 15, 1958. IN THESE CASES THE COURT HELD THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER, WITHIN THE MEANING OF THAT TERM AS USED IN THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT. SINCE ELDER IS NOT A COMMISSIONED OFFICER WITHIN THE PURVIEW OF SECTION 212, HE IS ENTITLED TO THE RETIRED PAY WITHHELD BY REASON OF THE PROVISIONS OF THAT SECTION.

RESPECTING LIEUTENANT COMMANDER GEORGE E. CLARK, USNR, THE OFFICER WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 4, 1945, AND PLACED ON THE RETIRED LIST ON DECEMBER 1, 1947, WITH THE RANK OF LIEUTENANT COMMANDER PURSUANT TO THE PROVISIONS OF 34 U.S.C. 417, 350G (A) AND 855C-1, AUTHORIZING RETIREMENT FOR PHYSICAL DISABILITY AS A RESULT OF AN INCIDENT OF THE SERVICE. YOU SAY THAT NO RETIRED PAY WAS PAID TO COMMANDER CLARK FROM THE DATE OF HIS RETIREMENT THROUGH AUGUST 3, 1955, FOR THE REASON THAT HIS FEDERAL CIVILIAN SALARY EXCEEDED $3,000 A YEAR. HOWEVER, DURING THE PERIOD AUGUST 4, 1955, TO DECEMBER 31, 1955, DATE OF RESIGNATION FROM SUCH POSITION, HE WAS PAID REDUCED RETIRED PAY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 4, 1955, 69 STAT. 497, WHICH AMENDED SECTION 212 OF THE 1932 ACT TO RAISE THE $3,000 LIMITATION TO $10,000. SINCE COMMANDER CLARK WAS A MEMBER OF THE NAVAL RESERVE FROM THE DATE OF HIS RETIREMENT, HE IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT ON AND AFTER JANUARY 1, 1953, IN ACCORDANCE WITH THE RULE AS SET FORTH IN 36 COMP. GEN. 808.

WITH RESPECT TO LIEUTENANT (JG) SIDNEY S. RUDY, USNR, THE OFFICER ENTERED ON ACTIVE DUTY AS AN ENSIGN ON DECEMBER 15, 1943, WAS APPOINTED LIETUENANT (JG) ON APRIL 1, 1945, AND WAS RELEASED FROM ACTIVE DUTY ON MARCH 10, 1946, AND TRANSFERRED TO THE HONORARY RETIRED LIST ON APRIL 1, 1954. JULY 9, 1957, THE BOARD FOR CORRECTION OF NAVAL RECORDS (ESTABLISHED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, NOW CODIFIED IN 10 U.S.C. 1552 (A) (, SUBMITTED TO THE SECRETARY OF THE NAVY ITS DECISION THAT THE OFFICER'S RECORDS BE CORRECTED TO SHOW THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE ON MARCH 10, 1946, THE DATE OF HIS RELEASE FROM ACTIVE DUTY BY REASON OF MENIERE'S DISEASE; THAT HIS INCAPACITY WAS PERMANENT AND THE RESULT OF AN INCIDENT OF SERVICE, HAVING BEEN INCURRED IN LINE OF DUTY BETWEEN DECEMBER 15, 1943, AND MARCH 10, 1946, THE PERIOD OF HIS EXTENDED ACTIVE DUTY; AND THAT HIS NAME WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON MARCH 11, 1946, WITH RANK AND PAY OF LIEUTENANT (JG). ON JULY 12, 1957, THE SECRETARY OF THE NAVY APPROVED THE DECISION AND THE RECOMMENDATION OF THE BOARD THAT IT BE DETERMINED THAT THE HIGHEST GRADE AND RANK IN WHICH THE OFFICER SATISFACTORILY SERVED UNDER A TEMPORARY APPOINTMENT WAS A LIEUTENANT (JG); THAT HE BE ADVANCED TO THIS HIGHEST GRADE AND RANK FROM THE DATE OF HIS RETIREMENT ON MARCH 11, 1946; AND THAT THE DEPARTMENT OF THE NAVY PAY TO HIM ALL MONEYS LAWFULLY FOUND DUE FROM MARCH 11, 1946, LESS ANY AMOUNTS RECEIVED BY HIM FROM THE DEPARTMENT OF THE NAVY OR THE VETERANS ADMINISTRATION IN CONNECTION WITH HIS SERVICE CONNECTED DISABILITY.

IT IS STATED THAT DURING THE PERIOD MARCH 11, 1946, TO AUGUST 3, 1955, LIEUTENANT RUDY WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY IN EXCESS OF $3,000; HOWEVER, FROM AUGUST 4, 1955, HIS SALARY WAS LESS THAN $10,000 A YEAR BUT WHEN COMBINED WITH HIS RETIRED PAY THE TOTAL AMOUNT EXCEEDED THE $10,000 LIMITATION. YOU SAY THAT PAYMENT OF RETIRED PAY FOR THE PERIOD JANUARY 1, 1953, TO AUGUST 3, 1955, IS BEING WITHHELD PENDING OUR DETERMINATION AS TO WHETHER THE DUAL COMPENSATION RESTRICTIONS ARE APPLICABLE FOR THAT PERIOD. YOU FURTHER STATE THAT PAYMENT OF RETIRED PAY FOR THE PERIOD AUGUST 4, 1955, TO JULY 11, 1957, IS ALSO BEING WITHHELD IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, WHICH AMENDED SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 TO AUTHORIZE THE PAYMENT OF AMOUNTS DUE AS THE RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS UNDER THAT SECTION. ON THE BASIS OF THE REPORTED FACTS IN LIEUTENANT RUDY'S CASE, HE ALSO IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT ON AND AFTER JANUARY 1, 1953, AND IS ENTITLED TO THE RETIRED PAY DUE FROM THAT DATE ON THE BASIS OF HIS RECORD AS CORRECTED.

IN THE CASE OF LIEUTENANT COMMANDER ROBERT J. FOLEY, USNR, IT IS SHOWN THAT FOLLOWING PRIOR SERVICE AS AN ENLISTED MAN AND MIDSHIPMAN, HE WAS APPOINTED AN ENSIGN IN THE U.S. NAVAL RESERVE ON OCTOBER 22, 1940, REPORTING FOR ACTIVE DUTY ON MAY 19, 1941, AND SERVED SUCCESSIVELY ON ACTIVE DUTY IN THE RANKS OF LIEUTENANT (JG) AND LIEUTENANT, AND THAT, HAVING BEEN FOUND PHYSICALLY QUALIFIED, HE WAS RELEASED FROM ACTIVE DUTY IN HIS TEMPORARY RANK OF LIEUTENANT COMMANDER ON MAY 16, 1946. ON OCTOBER 1, 1956, HE WAS HONORABLY DISCHARGED FROM THE U.S. NAVAL RESERVE. IT IS FURTHER SHOWN THAT UNDER AUTHORITY OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, THE OFFICER'S RECORDS NOW HAVE BEEN CORRECTED TO SHOW THAT HE WAS NOT DISCHARGED FROM THE NAVAL RESERVE; THAT HE WAS INCAPACITATED FOR ACTIVE SERVICE ON MAY 16, 1946, THE DATE OF HIS RELEASE FROM ACTIVE DUTY, BY REASON OF ULCER DUODERMUS; THAT HIS INCAPACITY WAS PERMANENT AND THE RESULT OF AN INCIDENT OF SERVICE, HAVING BEEN INCURRED IN LINE OF DUTY BETWEEN MAY 19, 1941, AND MAY 16, 1946; AND THAT HIS NAME WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON MAY 17, 1946, WITH RANK AND PAY OF LIEUTENANT COMMANDER, THAT BEING THE HIGHEST RANK AND GRADE IN WHICH HE SATISFACTORILY SERVED UNDER A TEMPORARY APPOINTMENT.

IT IS STATED THAT DURING THE PERIOD MAY 17, 1946, TO MAY 16, 1957, COMMANDER FOLEY WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT SALARIES IN EXCESS OF THE $3,000 AND $10,000 LIMITATION OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, YOU SAY THAT PAYMENTS OF RETIRED PAY HAVE BEEN MADE TO COMMANDER FOLEY FROM AUGUST 2, 1957, THE DATE THE SECRETARY OF THE NAVY APPROVED THE ACTION OF THE 207 BOARD, BUT THAT PAYMENT FOR THE PERIOD JANUARY 1, 1953, TO MAY 16, 1957, IS BEING WITHHELD PENDING OUR DETERMINATION AS TO WHETHER THE DUAL COMPENSATION RESTRICTIONS ARE APPLICABLE FOR SUCH PERIOD. ALSO, YOU SAY THAT RETIRED PAY FOR THE PERIOD MAY 17, 1957, TO AUGUST 1, 1957, IS BEING WITHHELD IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 5, 1951, 5 U.S.C. 191A. LIKE THE OTHER MENTIONED OFFICERS, COMMANDER FOLEY'S STATUS ON AND AFTER JANUARY 1, 1953, EXEMPTS HIM FROM THE DUAL COMPENSATION PROVISIONS OF THE ECONOMY ACT, AS AMENDED.

IN ADDITION, YOU ASK THAT IF IT IS DECIDED THAT COMMANDER FOLEY AND MEMBERS WHOSE CASES ARE SIMILAR ARE EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS FROM JANUARY 1, 1953, A FURTHER DETERMINATION IS REQUIRED AS TO MEMBERS WHOSE CASES ARE DISTINGUISHABLE ONLY TO THE EXTENT OF THEIR ACCEPTANCE OF A SETTLEMENT UNDER THE ACT OF OCTOBER 25, 1951, 5 U.S.C. 191A, PRIOR TO THE DATE OF OUR DECISION OF JUNE 11, 1957, B 123382, ABOVE CITED. AS ILLUSTRATIVE OF THE POINT IN QUESTION, YOU SUBMIT THE CASE OF LIEUTENANT HIRAM E. NEWBILL, USNR, WHO, AFTER SERVING AS AN ENLISTED MAN, WAS APPOINTED LIEUTENANT, U.S. NAVAL RESERVE, ON MAY 1, 1941, AND REPORTED FOR ACTIVE DUTY ON JUNE 23, 1941. IT IS FURTHER SHOWN THAT ON FEBRUARY 19, 1946, THE OFFICER APPEARED BEFORE A NAVAL RETIRING BOARD WHICH DETERMINED THAT HE WAS SUFFERING FROM A DISABILITY BUT THAT SUCH DISABILITY WAS NOT SUCH AS TO ABSOLUTELY DISQUALIFY HIM FOR DUTY, AND THAT HE WAS RELEASED FROM ACTIVE DUTY ON JULY 20, 1946, UPON THE DETERMINATION OF THE CHIEF OF NAVAL PERSONNEL THAT HIS SERVICES IN A LIMITED DUTY CAPACITY WERE NOT REQUIRED.

IN 1954 THE OFFICER'S RECORDS WERE CORRECTED UNDER AUTHORITY OF SECTION 207 OF THE 1946 ACT, AS AMENDED, TO SHOW THAT HE WAS INCAPACITATED FOR ACTIVE DUTY ON JULY 20, 1946, BY REASON OF CATARACT OF THE LEFT EYE; THAT HIS INCAPACITY WAS PERMANENT AND THE RESULT OF AN INCIDENT OF THE SERVICE, HAVING BEEN INCURRED SUBSEQUENT TO JUNE 23, 1951; AND THAT HE WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON JULY 21, 1946, WITH THE RANK OF LIEUTENANT COMMANDER, THE HIGHEST GRADE AND RANK IN WHICH IT WAS DETERMINED THAT THE OFFICER SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT. YOU SAY THAT ON THE BASIS OF PRIOR DECISIONS, SETTLEMENT MADE UNDER THE ACT OF OCTOBER 25, 1951, 5 U.S.C. 191A, EXCLUDED PAYMENT OF RETIRED PAY FOR THE PERIOD OCTOBER 25, 1946, TO APRIL 18, 1947, AND FROM OCTOBER 30, 1950, TO AUGUST 13, 1954 (THE DATE OF APPROVAL OF THE CORRECTION OF THE OFFICER'S RECORDS), DURING WHICH PERIODS THE OFFICER WAS EMPLOYED BY THE FEDERAL GOVERNMENT AT A SALARY IN EXCESS OF THE $3,000 LIMITATION.

SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C), AS NOW CODIFIED IN 10 U.S.C. 1552 (C), RELATING TO THE PAYMENT OF AMOUNTS FOUND DUE AS A RESULT OF CORRECTIONS OF MILITARY RECORDS, PROVIDES THAT "A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED.' IN A CASE SIMILAR TO COMMANDER NEWBILL'S CASE, WHICH WE CONSIDERED IN DECISION DATED JUNE 3, 1958, B-135648, 37 COMP. GEN. - , WE POINTED OUT THAT, WITH RESPECT TO THE PROVISIONS OF 10 U.S.C. 1552 (C), IN A CASE WHERE THE AMOUNT TENDERED AND ACCEPTED CONSTITUTES THE FULL AMOUNT WHICH COULD BE OFFERED UNDER CURRENT AND AUTHORITATIVE INTERPRETATIONS OF THE APPLICABLE PROVISIONS OF LAW, IT DOES NOT APPEAR THAT IT WOULD BE PROPER TO IMPUTE TO THE CONGRESS AN INTENT TO BAR FURTHER CONSIDERATION OF THE MATTER IF IT LATER IS AUTHORITATIVELY DETERMINED THAT THE INTERPRETATION APPLICABLE ON THE DATE OF SETTLEMENT SHOULD BE CHANGED. WE CONCLUDED IN THAT CASE THAT THE OFFICER WAS ENTITLED TO THE BENEFITS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808.

ACCORDINGLY, IN VIEW OF OUR HOLDING IN B-135848, DATED JUNE 3, 1958, ABOVE CITED, COMMANDER NEWBILL IS NOW ENTITLED TO THE BENEFITS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808, EVEN THOUGH HE ACCEPTED A SETTLEMENT PRIOR THERETO BASED ON THE CORRECTION OF HIS RECORDS, COMPUTED IN ACCORDANCE WITH THE INTERPRETATIONS OF APPLICABLE LAW CURRENT AT THE TIME OF SETTLEMENT.