B-129777, MARCH 7, 1958, 37 COMP. GEN. 591

B-129777: Mar 7, 1958

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THAT A COMMISSIONED WARRANT OFFICER IS NOT A . PROPER PAYMENTS OF RETIRED PAY WHICH MAY BE MADE ADMINISTRATIVELY ON THE BASIS OF THE TATO AND ATKINS DECISIONS TO RETIRED COMMISSIONED WARRANT OFFICERS HOLDING CIVILIAN POSITIONS WILL NOT BE QUESTIONED BY THE ACCOUNTING OFFICERS AND CLAIMS SUBMITTED TO THE GENERAL ACCOUNTING OFFICE WILL BE SETTLED ON THE SAME BASIS. THE COURT OF CLAIMS HELD THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER. WHILE THAT HOLDING IS NOT IN AGREEMENT WITH THE VIEWS WHICH WE HERETOFORE HAVE EXPRESSED FROM TIME TO TIME IN OUR DECISIONS. WE HAVE BEEN INFORMED THAT THE SOLICITOR GENERAL HAS DETERMINED THERE WILL BE NO FURTHER JUDICIAL PROCEEDINGS IN THE ATKINS CASE AND THAT THE DEPARTMENT OF JUSTICE KNOWS OF NO REASON WHY WE SHOULD NOT NOW AUTHORIZE THE ADMINISTRATIVE AGENCIES CONCERNED TO MAKE PAYMENTS ON THE BASIS OF THE RULE ESTABLISHED BY THAT CASE AND THE TATO CASE.

B-129777, MARCH 7, 1958, 37 COMP. GEN. 591

MILITARY PERSONNEL - DOUBLE COMPENSATION - COMMISSIONED WARRANT OFFICERS - TATO DECISION. IN VIEW OF THE HOLDING IN TATO V. UNITED STATES, 136 C.1CLS. 651, AND ATKINS, ET AL. V. UNITED STATES, C.1CLS. NO. 473-56, DECIDED JANUARY 15, 1958, THAT A COMMISSIONED WARRANT OFFICER IS NOT A ,COMMISSIONED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THE DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, PROPER PAYMENTS OF RETIRED PAY WHICH MAY BE MADE ADMINISTRATIVELY ON THE BASIS OF THE TATO AND ATKINS DECISIONS TO RETIRED COMMISSIONED WARRANT OFFICERS HOLDING CIVILIAN POSITIONS WILL NOT BE QUESTIONED BY THE ACCOUNTING OFFICERS AND CLAIMS SUBMITTED TO THE GENERAL ACCOUNTING OFFICE WILL BE SETTLED ON THE SAME BASIS.

TO THE SECRETARY OF DEFENSE, MARCH 7, 1958:

IN THE CASE OF TATO V. UNITED STATES, 136 C.1CLS. 651, DECIDED NOVEMBER 7, 1956, THE COURT OF CLAIMS 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 OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. WHILE THAT HOLDING IS NOT IN AGREEMENT WITH THE VIEWS WHICH WE HERETOFORE HAVE EXPRESSED FROM TIME TO TIME IN OUR DECISIONS, THE COURT ADHERED TO ITS RULING IN THE CASE OF ATKINS, ET AL. V. UNITED STATES, C.1CLS. NO. 473 56, DECIDED JANUARY 15, 1958, AFTER CONSIDERING THE ADDITIONAL ARGUMENTS ADVANCED BY THE GOVERNMENT IN THAT CASE. IN A REPORT FROM THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DATED FEBRUARY 24, 1958, WE HAVE BEEN INFORMED THAT THE SOLICITOR GENERAL HAS DETERMINED THERE WILL BE NO FURTHER JUDICIAL PROCEEDINGS IN THE ATKINS CASE AND THAT THE DEPARTMENT OF JUSTICE KNOWS OF NO REASON WHY WE SHOULD NOT NOW AUTHORIZE THE ADMINISTRATIVE AGENCIES CONCERNED TO MAKE PAYMENTS ON THE BASIS OF THE RULE ESTABLISHED BY THAT CASE AND THE TATO CASE.

AFTER DULY CONSIDERING THE CIRCUMSTANCES RELATIVE TO THE PROBLEM INVOLVED, WE HAVE DECIDED THAT WE WILL NOT QUESTION ANY OTHERWISE PROPER PAYMENTS OF RETIRED PAY WHICH MAY BE MADE ADMINISTRATIVELY ON AUTHORITY OF THE TATO AND ATKINS CASES. SIMILAR CLAIMS WHICH ARE SUBMITTED HERE FOR SETTLEMENT WILL BE ALLOWED IN THE AMOUNT FOUND DUE.