B-131490, JUNE 6, 1957, 36 COMP. GEN. 799

B-131490: Jun 6, 1957

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WHICH IS NOT CONSIDERED RETIRED PAY. COLONEL DOUGAN WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. HE WAS APPOINTED TO A FEDERAL CIVILIAN POSITION AT AN ANNUAL SALARY OF $4. HIS RETIRED PAY WAS REDUCED $360.96 PER ANNUM ($30.08 PER MONTH) UNDER SECTION 212 OF THE ACT OF JUNE 30. WHEN COMBINED WITH THE ANNUAL RATE OF HIS CIVILIAN COMPENSATION WILL NOT EXCEED $10. HE IS ENTITLED. EFFECT WILL NOT BE GIVEN TO ANY ATTEMPT TO DEPRIVE HIM OF THE RIGHT THERETO. IN PART: THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY * * *. SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE. * * * THE NECESSARY EFFECT OF THE CITED SUPREME COURT DECISIONS IS THAT.

B-131490, JUNE 6, 1957, 36 COMP. GEN. 799

RETIRED MILITARY PERSONNEL HOLDING CIVILIAN POSITIONS - DUAL COMPENSATION - WAIVER OF RETIRED PAY FOR VETERANS BENEFITS A RETIRED COMMISSIONED OFFICER WHO EXECUTES A WAIVER OF RETIRED PAY PURSUANT TO 38 U.S.C. 504 IN ORDER TO RECEIVE VETERANS DISABILITY COMPENSATION, WHICH IS NOT CONSIDERED RETIRED PAY, HAS IN EFFECT REDUCED THE LEGALLY AUTHORIZED RETIRED PAY BY THE AMOUNT OF THE VETERANS COMPENSATION, AND, THEREFORE, AN AMOUNT FORMERLY WITHHELD FROM RETIRED PAY TO PREVENT COMBINED RETIRED PAY AND COMPENSATION FROM A CIVILIAN POSITION FROM EXCEEDING THE $10,000 DOUBLE COMPENSATION LIMITATION, 5 U.S.C. 59A, MAY BE PAID TO THE OFFICER FROM THE EFFECTIVE DATE OF THE WAIVER SO LONG AS THE COMBINED RETIRED PAY AND CIVILIAN COMPENSATION DO NOT EXCEED $10,000.

TO CAPTAIN R. J. ANTHONY, DEPARTMENT OF THE NAVY, JUNE 6, 1957:

YOUR LETTER OF APRIL 10, 1957, CDC-1-ILB, REQUESTS DECISION AS TO WHETHER, IN THE SITUATION PRESENTED, YOU SHOULD CONTINUE TO WITHHOLD $30.08 PER MONTH FROM THE RETIRED PAY OF LIEUTENANT COLONEL THOMAS H. DOUGAN, 106436, U.S. MARINE CORPS, RETIRED, AFTER APRIL 1, 1957.

YOU SAY THAT, EFFECTIVE JUNE 1, 1953, COLONEL DOUGAN WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST UNDER THE PROVISIONS OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272, WITH ANNUAL RETIRED PAY OF $5,835.96. ON JUNE 25, 1956, HE WAS APPOINTED TO A FEDERAL CIVILIAN POSITION AT AN ANNUAL SALARY OF $4,525, WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF HIS RETIRED PAY, RESULTS IN AN ANNUAL TOTAL RATE FROM BOTH SOURCES OF $10,360.96. HIS RETIRED PAY WAS REDUCED $360.96 PER ANNUM ($30.08 PER MONTH) UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, WHICH PROVIDES GENERALLY THAT NO PERSON HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION SHALL BE ENTITLED TO RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM HIS CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000.

COLONEL DOUGAN HAS BEEN AWARDED COMPENSATION OF $66 PER MONTH BY THE VETERANS ADMINISTRATION AND PURSUANT TO THE ACT OF MAY 27, 1944, 58 STAT. 230, 38 U.S.C. 504, HE HAS WAIVED A LIKE AMOUNT OF HIS RETIRED PAY IN FAVOR OF RECEIVING HIS VETERANS ADMINISTRATION COMPENSATION, SUCH WAIVER BEING EFFECTIVE APRIL 1, 1957. SINCE, AS A CONSEQUENCE OF THIS WAIVER, COLONEL DOUGAN'S RETIRED PAY AFTER APRIL 1, 1957, INCLUDING THE $30.08 MONTHLY DEDUCTION, WHEN COMBINED WITH THE ANNUAL RATE OF HIS CIVILIAN COMPENSATION WILL NOT EXCEED $10,000 ANNUALLY, YOU SUGGEST THAT SECTION 212 MAY NO LONGER REQUIRE ANY REDUCTION IN HIS RETIRED PAY.

IN THE CASE OF MACMATH V. UNITED STATES, 248 U.S. 151, THE SUPREME COURT SAID:

WHEN AN OFFICE WITH A FIXED SALARY HAS BEEN CREATED BY STATUTE, AND A PERSON DULY APPOINTED TO IT HAS QUALIFIED AND ENTERED UPON THE DISCHARGE OF HIS DUTIES, HE IS ENTITLED, DURING HIS INCUMBENCY, TO BE PAID THE SALARY PRESCRIBED BY STATUTE; AND EFFECT WILL NOT BE GIVEN TO ANY ATTEMPT TO DEPRIVE HIM OF THE RIGHT THERETO, WHETHER IT BE BY UNAUTHORIZED AGREEMENT, CONDITION, OR OTHERWISE. SEE, ALSO, UNITED STATES V. BANCROFT, 260 U.S. 706; UNITED STATES V. ANDREWS, 240 U.S. 90; GLAVEY V. UNITED STATES, 182 U.S. 595. HENCE, IN GENERAL, THE ACCEPTANCE BY AN EMPLOYEE OF LESS THAN THE LAWFUL SALARY OF HIS POSITION DOES NOT BAR A CLAIM BY HIM FOR THE DIFFERENCE. 14 COMP. GEN. 193; 23 COMP. GEN. 109.

THE ACT OF MARCH 3, 1891, 26 STAT. 1082, 38 U.S.C. 114, PROVIDED THAT: * * * NO PENSION SHALL BE ALLOWED OR PAID TO ANY OFFICER, NONCOMMISSIONED OFFICER, OR PRIVATE IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES, EITHER ON THE ACTIVE OR RETIRED LIST. * * * AND, SECTION 212 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 623, AS AMENDED, 38 U.S.C. 422, PROVIDED, IN PART:

THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY * * *.

PARAGRAPH XIII, VETERANS REGULATION NO. 10, 38 U.S.C., CHAPTER 12A (PAGE 5599, 1952 EDITION), PRESENTLY APPLICABLE IN SUCH SITUATIONS, PROVIDES THAT:

NOT MORE THAN ONE AWARD OF PENSION, COMPENSATION, OR EMERGENCY OFFICERS' OR REGULAR RETIREMENT PAY, SHALL BE MADE CONCURRENTLY TO ANY PERSON BASED ON HIS OWN SERVICE. * * *

THE NECESSARY EFFECT OF THE CITED SUPREME COURT DECISIONS IS THAT, IN THE ABSENCE OF SPECIAL STATUTORY PROVISIONS REGULATING THE MATTER, A WAIVER OF A STATUTORY RIGHT TO PAY AND ALLOWANCES WILL NOT ESTOP THE PERSON WAIVING THE RIGHT AND THAT THE COURTS WILL NOT GIVE ANY EFFECT TO SUCH A WAIVER. THE QUOTED STATUTORY PROVISIONS MAKE IT CLEAR THAT A RETIRED PERSON IS NOT TO RECEIVE DUPLICATE BENEFITS FOR THE SAME SERVICE. CONSEQUENTLY, WE HELD IN DECISION OF JULY 25, 1940, 20 COMP. GEN. 41, THAT A WAIVER BY A RETIRED ARMY ENLISTED MAN OF HIS STATUTORY RIGHT TO RETIRED PAY MIGHT BE CONSIDERED EFFECTIVE ONLY IF CONSTRUED AS A RENUNCIATION OF HIS RETIRED STATUS, AND IF PURSUANT TO SUCH WAIVER HIS RETIRED PAY WAS DISCONTINUED AND A PENSION GRANTED, THE TRANSACTION MUST BE TREATED AS TERMINATING FINALLY THE MAN'S STATUS AS A RETIRED ENLISTED MAN.

THE ACT OF MAY 27, 1944 (38 U.S.C. 26C), PROVIDES IN MATERIAL PART:

THAT ANY PERSON WHO IS RECEIVING PAY PURSUANT TO ANY PROVISION OF LAW RELATING TO THE RETIREMENT OF PERSONS IN THE REGULAR MILITARY OR NAVAL SERVICE, AND WHO WOULD BE ELIGIBLE TO RECEIVE PENSION OR COMPENSATION UNDER THE LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION IF HE WERE NOT RECEIVING SUCH RETIRED PAY, SHALL BE ENTITLED TO RECEIVE SUCH PENSION OR COMPENSATION UPON THE FILING BY SUCH PERSON WITH THE DEPARTMENT BY WHICH SUCH RETIRED PAY IS PAID OF A WAIVER OF SO MUCH OF HIS RETIRED PAY AND ALLOWANCES AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION. * * *

BY SECTION 4 OF THE ACT OF JUNE 30, 1941, 55 STAT. 395, 38 U.S.C. 26B, ENLISTED MEN OF THE REGULAR ARMY AND OF THE PHILIPPINE SCOUTS, WHO HAD BEEN PLACED ON THE RETIRED LIST, WERE AUTHORIZED IN CERTAIN CASES TO WAIVE RECEIPT OF RETIRED PAY AND ALLOWANCES FOR THE PURPOSE OF RECEIVING A PENSION OR COMPENSATION FROM THE VETERANS ADMINISTRATION AND, THEREAFTER, TO WAIVE RECEIPT OF PENSION OR COMPENSATION FOR THE PURPOSE OF RECEIVING RETIRED PAY AND ALLOWANCES. THE ACT OF MAY 27, 1944, EXTENDED THE LIMITED AUTHORIZATION CONTAINED IN SECTION 4 OF THE ACT OF JUNE 30, 1941, TO ALL RETIRED MEMBERS OF THE REGULAR MILITARY AND NAVAL COMPONENTS WHO ALSO COULD QUALIFY FOR VETERANS' BENEFITS. THE ACT OF MAY 27, 1944, WAS MADE APPLICABLE TO MEMBERS OF THE RESERVE COMPONENTS RETIRED FOR DISABILITY BY SUBSECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 820, NOW 10 U.S.C. 1215 (ACT OF AUGUST 10, 1956, 70A STAT. 100).

THE PURPOSE OF THESE WAIVER STATUTES IS TO PERMIT THE RETIRED INDIVIDUALS CONCERNED TO RECEIVE EITHER THEIR RETIRED PAY OR THEIR VETERANS' BENEFITS, OR SUCH VETERANS' BENEFITS PLUS RETIRED PAY EQUAL TO THE DIFFERENCE BETWEEN THE AMOUNT OF THE BENEFITS AND THE FULL RATE OF RETIRED PAY, WITHOUT TERMINATING THE STATUS GIVING RISE, EITHER TO THE RIGHT TO RETIRED PAY, OR TO VETERANS' BENEFITS. SUCH STATUTES DO NOT, HOWEVER, REFLECT ANY INTENTION ON THE PART OF CONGRESS TO REMOVE THE STATUTORY PROHIBITION AGAINST THE CONCURRENT PAYMENT OF RETIRED PAY AND PENSION OR COMPENSATION. ACCORDINGLY, TO THE EXTENT THAT VETERANS' BENEFITS ARE BEING RECEIVED BY A RETIRED PERSON, A LIKE AMOUNT OF RETIRED PAY MUST BE RELINQUISHED ABSOLUTELY. IN VIEW OF THE CITED SUPREME COURT CASES, IT IS DOUBTFUL THAT SUCH A RELINQUISHMENT WOULD RESULT UNLESS THE RIGHT TO THE WAIVED RETIRED PAY IS EXTINGUISHED SO AS TO CORRESPONDINGLY REDUCE THE LAWFUL RETIRED PAY. COMPARE 28 COMP. GEN. 675. HENCE, THE CONCLUSION APPEARS REQUIRED THAT A VALID WAIVER OF RETIRED PAY PURSUANT TO THE 1944 STATUTE AND THE PAYMENT OF VETERANS' BENEFITS ON THE BASIS OF SUCH WAIVER, OPERATES TO REDUCE THE LEGALLY AUTHORIZED RETIRED PAY BY THE AMOUNT OF THE WAIVED RETIRED PAY. ACCORDINGLY, FROM THE EFFECTIVE DATE OF COLONEL DOUGAN'S WAIVER HE CEASED TO BE ENTITLED TO RETIRED PAY EQUAL IN AMOUNT TO THE COMPENSATION WHICH HE IS ENTITLED TO RECEIVE FROM THE VETERANS ADMINISTRATION.

DISABILITY COMPENSATION PAYABLE BY THE VETERANS ADMINISTRATION IS NOT RETIRED PAY AND, THEREFORE, AS A CONSEQUENCE OF COLONEL DOUGAN'S WAIVER OF RETIRED PAY, THE COMBINED AMOUNT OF HIS LAWFUL RETIRED PAY AND CIVILIAN COMPENSATION AFTER APRIL 1, 1957, DOES NOT EXCEED $10,000 ANNUALLY. ACCORDINGLY, AFTER THAT DATE HE IS NOT SUBJECT TO COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT AND YOUR QUESTION IS ANSWERED IN THE NEGATIVE. IT SHOULD BE UNDERSTOOD, OF COURSE, THAT IF COLONEL DOUGAN HEREAFTER RECEIVES ANY INCREASE IN RETIRED PAY OR CIVILIAN COMPENSATION WHICH WOULD RESULT IN A TOTAL ENTITLEMENT OF SUCH ITEMS IN EXCESS OF $10,000, HE WOULD BE SUBJECT TO THE $10,000 RESTRICTION IMPOSED BY SECTION 212 TO THE EXTENT OF SUCH EXCESS.