B-131331, APR. 19, 1957

B-131331, APR. 19, 1957

TO MR. THOMAS D. BRYANT:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1957, ADVISING THAT YOU HAVE THE OPPORTUNITY OF ACCEPTING FEDERAL CIVILIAN EMPLOYMENT AND ASKING WHETHER, AS A RESERVE OFFICER OF THE ARMY RETIRED FOR DISABILITY WITH COMBINED RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF $10,000 ANNUALLY, YOU WILL BE SUBJECT (1) TO THE $2,500 DUAL OFFICE RESTRICTION OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62, OR (2) TO THE $10,000 LIMITATION ON DUAL COMPENSATION IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. IF SUBJECT TO THE $10,000 LIMITATION, YOU ASK (3) WHETHER YOU CAN WAIVE A PORTION OF YOUR RETIRED PAY, PRESUMABLY THE AMOUNT BY WHICH YOUR COMBINED CIVILIAN SALARY AND RETIRED PAY WILL EXCEED $10,000, AND DRAW DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION.

AS A RETIRED RESERVE OFFICER, NOT ON ACTIVE DUTY, YOU WILL BE EXEMPT FROM THE RESTRICTIONS OF THE 1894 ACT. IN OUR VIEW, HOWEVER, YOU WILL BE SUBJECT TO THE $10,000 DUAL COMPENSATION RESTRICTION OF SECTION 212.

YOUR LAST QUESTION CAN ONLY BE DETERMINED FINALLY BY THE ADMINISTRATOR OF VETERANS AFFAIRS AND, THEREFORE, HIS OPINION ON THE MATTER SHOULD BE OBTAINED. IN SUCH CONNECTION, YOUR ATTENTION MAY BE INVITED TO ADMINISTRATOR'S DECISIONS, VETERANS ADMINISTRATION, NOS. 651 AND 671, OF MAY 29 AND NOVEMBER 2, 1945, RESPECTIVELY, SUGGESTING THAT AN INDIVIDUAL WHO HAS WAIVED HIS RETIRED PAY AND IS IN RECEIPT OF COMPENSATION OR PENSION WHEN EMPLOYED BY THE FEDERAL GOVERNMENT IS ENTITLED TO CONTINUE TO RECEIVE COMPENSATION OR PENSION DURING THE PERIOD OF CIVILIAN EMPLOYMENT BUT THAT WHERE THE RETIRED PAY HAS ALREADY BEEN REDUCED UNDER THE PROVISIONS OF SECTION 212, BY REASON OF HIS CIVILIAN EMPLOYMENT, THE INDIVIDUAL CANNOT, BY PURPORTING TO WAIVE THE RETIRED PAY WHICH HE IS NOT RECEIVING, BECOME ENTITLED TO COMPENSATION OR PENSION ON THE BASIS OF SUCH WAIVER.