B-134456, JAN. 24, 1962

B-134456: Jan 24, 1962

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FC: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER FOR RETIRED PAY IN FAVOR OF FIRST LIEUTENANT FLOYD E. IT IS STATED IN YOUR LETTER THAT THE MEMBER HAD ACTIVE SERVICE AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES FROM MARCH 3. THAT HE WAS ALSO APPOINTED TO THE GRADE OF FIRST LIEUTENANT IN THE OFFICERS' RESERVE CORPS ON DECEMBER 29. WAS TERMINATED APRIL 1. THAT HE WAS SERVING ON ACTIVE DUTY AS MASTER SERGEANT AT TIME OF RETIREMENT. IT IS ALSO STATED THAT THE MEMBER WAS RETIRED IN THE GRADE OF FIRST LIEUTENANT WITH 40 PERCENT DISABILITY EFFECTIVE JULY 31. THAT HE WAS APPOINTED TO A CIVILIAN POSITION WITH THE UNITED STATES GOVERNMENT EFFECTIVE MAY 26.

B-134456, JAN. 24, 1962

TO COLONEL WEBSTER MILLS, FC:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 19, 1961, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER FOR RETIRED PAY IN FAVOR OF FIRST LIEUTENANT FLOYD E. WAGNER, AUS, RETIRED, SERVICE NUMBER 01 111 410, IN THE AMOUNT OF $2,875, REPRESENTING RETIRED PAY WITHHELD OR RECOVERED FOR THE PERIOD MAY 26, 1954, THROUGH AUGUST 3, 1955, UNDER SECTION 212, OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D. O. NUMBER 261 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN YOUR LETTER THAT THE MEMBER HAD ACTIVE SERVICE AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES FROM MARCH 3, 1943, TO APRIL 25, 1945, AND AS A TEMPORARY FIRST LIEUTENANT FROM APRIL 26, 1945, THROUGH MAY 12, 1947; THAT HE WAS ALSO APPOINTED TO THE GRADE OF FIRST LIEUTENANT IN THE OFFICERS' RESERVE CORPS ON DECEMBER 29, 1947, AND SERVED ON ACTIVE DUTY IN THAT GRADE FROM JANUARY 27, 1949, THROUGH MARCH 23, 1950; THAT HIS APPOINTMENT AS FIRST LIEUTENANT, AUS, WAS TERMINATED APRIL 1, 1953; AND THAT HE WAS SERVING ON ACTIVE DUTY AS MASTER SERGEANT AT TIME OF RETIREMENT. IT IS ALSO STATED THAT THE MEMBER WAS RETIRED IN THE GRADE OF FIRST LIEUTENANT WITH 40 PERCENT DISABILITY EFFECTIVE JULY 31, 1953, BY PARAGRAPH 98, SPECIAL ORDERS NO. 147, DATED JULY 29, 1953; THAT HE WAS APPOINTED TO A CIVILIAN POSITION WITH THE UNITED STATES GOVERNMENT EFFECTIVE MAY 26, 1954, AT A SALARY IN EXCESS OF $3,000 PER ANNUM; THAT THE FINANCE AND ACCOUNTING OFFICE WAS NOT INFORMED OF THE CIVILIAN EMPLOYMENT UNTIL JUNE 1, 1956; THAT DUE TO THE LIMITATION OF $3,000 PER ANNUM IMPOSED BY SECTION 212 OF THE ECONOMY ACT, HE WAS OVERPAID FROM MAY 26, 1954, TO AUGUST 4, 1955, WHEN THE RESTRICTION WAS INCREASED TO $10,000 PER ANNUM; AND THAT COLLECTION OF THE OVERPAYMENT IS BEING MADE BY MONTHLY DEDUCTION FROM RETIRED PAY AND AS OF SEPTEMBER 30, 1961, $2,875 HAS BEEN WITHHELD, LEAVING A BALANCE OF $626.25.

THE PRESENT CLAIM FOR RETIRED PAY WITHHELD IS STATED TO BE PREDICATED ON OUR DECISION OF MAY 18, 1961, B-136459, 40 COMP. GEN. 625, CONCERNING THE APPLICATION OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189-59, DECIDED MARCH 1, 1961.

AN EARLIER CLAIM BY THE MEMBER WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED MAY 6, 1958, UNDER DECISIONS THAT BEING FOLLOWED, ON THE BASIS THAT THE MEMBER HAD NO RESERVE STATUS DURING THE PERIOD COVERED BY THE CLAIM.

PARAGRAPH 98, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 147, DATED JULY 29, 1953, COPY ENCLOSED WITH YOUR LETTER, SHOWS THAT UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, FIRST LIEUTENANT FLOYD E. WAGNER, CE-AUS, WAS RETIRED WITH A DISABILITY RATING OF 40 PERCENT, EFFECTIVE JULY 31, 1953, IN THE GRADE OF FIRST LIEUTENANT. THE ORDERS FURTHER PROVIDED THAT THE OFFICER WOULD BE HONORABLY DISCHARGED FROM HIS THEN PRESENT ENLISTED GRADE OF MASTER SERGEANT IN THE REGULAR ARMY ON JULY 31, 1953, FOR THE CONVENIENCE OF THE GOVERNMENT. IT THUS APPEARS THAT LIEUTENANT WAGNER WAS RETIRED IN THE HIGHEST TEMPORARY GRADE HELD BY HIM IN THE ARMY OF THE UNITED STATES UNDER AN APPOINTMENT PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, RATHER THAN IN THE SAME GRADE HELD IN THE OFFICERS' RESERVE CORPS AS SUGGESTED BY YOU.

SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 10 U.S.C. 371B, 1952 EDITION, PROVIDED:

"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 * * *.'

IN WATMAN V. UNITED STATES, SUPRA, THE COURT OF CLAIMS HELD THAT SECTION 5 OF THE ACT OF APRIL 3, 1939, 10 U.S.C. 456, 1946 EDITION, UNDER WHICH THE PLAINTIFF WAS GRANTED RETIRED PAY, WAS AN ACT RELATING TO THE OFFICERS' RESERVE CORPS AND STATED THAT:

"* * * THE PLAINTIFF, AS A RETIRED OFFICER OF THE ARMY OF THE UNITED STATES, HAD THE SAME RIGHTS AND BENEFITS AS A RESERVE OFFICER, AND THAT THE REPEAL OF THE STATUTE UNDER WHICH HE HAD BEEN APPOINTED AN OFFICER OF THE ARMY OF THE UNITED STATES DID NOT FORFEIT RIGHTS WHICH HAS ACCRUED TO HIM WHILE HE WAS SUCH AN OFFICER.'

ON THE BASIS OF SUCH CONCLUSIONS, IT WAS HELD THAT THE PLAINTIFF WAS EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT.

WHILE LIEUTENANT WAGNER WAS RETIRED UNDER THE CAREER COMPENSATION ACT OF 1949, IT APPEARS PROPER TO REGARD THAT ACT AS A LAW RELATING TO RESERVE COMPONENTS OF THE ARMED FORCES (SEE COX V. UNITED STATES, CT.CL.NO. 228- 60, DECIDED DECEMBER 6, 1961) AND SINCE HE ALSO IS A RETIRED OFFICER OF THE ARMY OF THE UNITED STATES, HIS RETIRED PAY MAY NOW BE CONSIDERED AS EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT.

ACCORDINGLY, THE SUBMITTED VOUCHER, RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.