B-134986, MAR. 28, 1958

B-134986, MAR. 28, 1958

TO MAJOR WILLIAM F. SAMPLE:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 25 AND OCTOBER 9, 1957, CONCERNING YOUR CLAIM FOR A RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, INCIDENT TO YOUR SERVICE AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE. ALSO, THERE HAS BEEN RECEIVED YOUR CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD OCTOBER 1, 1949, TO MARCH 1, 1950, AND FEBRUARY 1 TO AUGUST 4, 1955, SUBMITTED ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, B 123382.

BY SETTLEMENT DATED MARCH 4, 1957, OUR CLAIMS DIVISION DENIED YOUR CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, FOR THE REASON THAT, SINCE THE ANNUAL RATE OF YOUR CIVILIAN COMPENSATION (AS AN EMPLOYEE WITH THE MARINE CORPS EXCHANGE) EXCEEDED $3,000 PER YEAR, YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, AND HENCE PRECLUDED FROM RECEIVING SUCH RETIRED PAY.

THE RECORD DISCLOSES THAT FOLLOWING ACTIVE AND INACTIVE DUTY AS AN ENLISTED MAN IN THE UNITED STATES MARINE CORPS AND THE UNITED STATES MARINE CORPS RESERVE, YOU WERE APPOINTED A FIRST LIEUTENANT IN THE UNITED STATES MARINE CORPS RESERVE ON NOVEMBER 14, 1942, AND ASSIGNED TO ACTIVE DUTY THE SAME DAY. YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 29, 1946. THE RECORD ALSO DISCLOSES THAT ON SEPTEMBER 20, 1949, THE PRESIDENT OF THE UNITED STATES APPROVED THE FINDINGS OF THE NAVAL RETIRING REVIEW BOARD--- WHICH CONVENED AT WASHINGTON, D.C., ON MAY 9, 1949--- THAT YOU WERE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, SUCH INCAPACITY BEING THE RESULT OF AN INCIDENT OF THE SERVICE INCURRED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON EXTENDED ACTIVE NAVAL SERVICE IN EXCESS OF 30 DAYS AND WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN THE RANK OF CAPTAIN. ON THAT BASIS YOU WERE TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY EFFECTIVE OCTOBER 1, 1949, WITH THE RANK OF CAPTAIN, PURSUANT TO THE PROVISIONS OF SECTION 1453, REVISED STATUTES, 34 U.S.C. 417, AND SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864, 34 U.S.C. (1946 EDITION) 855C-1.

SECTION 212 OF THE ECONOMY ACT OF 1932 PROVIDED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT AFTER JUNE 30, 1932, 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 $3,000. THE $3,000 LIMITATION FIXED IN THAT ACT WAS INCREASED TO $10,000 BY THE ACT OF AUGUST 4, 1955, 69 STAT. 498, 5 U.S.C. (1952 ED., SUPP. III) 59A, EFFECTIVE AUGUST 4, 1955.

CONCERNING YOUR CLAIM FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, THE MARINE CORPS EXCHANGE, PARRIS ISLAND, SOUTH CAROLINA, REPORTED TO OUR OFFICE THAT DURING THE PERIOD MAY 1, 1946, THROUGH SEPTEMBER 30, 1948, YOU HELD A CIVILIAN POSITION WITH THAT EXCHANGE AND RECEIVED COMPENSATION AT AN ANNUAL RATE OF MORE THAN $3,000. WHILE THE EXCHANGE REPORTED THAT THE RECORDS FOR THE BALANCE OF 1948 AND 1949 WERE NOT AVAILABLE, PRESUMABLY YOU CONTINUED TO RECEIVE COMPENSATION AT A RATE IN EXCESS OF $3,000 THROUGH SEPTEMBER 30, 1949, SINCE THE ADMINISTRATIVE OFFICE (RETIRED PAY SECTION, ALLOTMENT BRANCH, UNITED STATES MARINE CORPS) IN REPORTING ON YOUR CLAIM FOR THE PERIOD COMMENCING OCTOBER 1, 1949, STATED THAT YOUR CIVILIAN SALARY ON THAT DATE WAS IN EXCESS OF $3,000 A YEAR.

THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, THAT THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 238, RELATING TO "ANY MEMBER OF THE OFFICERS' RESERVE CORPS," EXEMPTED THE PLAINTIFF FROM THE DUAL COMPENSATION RESTRICTIONS OF THE 1932 ECONOMY ACT. IN OUR DECISION OF MARCH 2, 1956, B -123382, 35 COMP. GEN. 497, WE SAID THAT WE WOULD FOLLOW THE COURT'S DECISION IN THE TANNER CASE 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, AND HAS BEEN DURING THE PERIOD COVERED BY THE PAYMENT A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, PROVIDED 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. SINCE YOU WERE RETIRED UNDER PROVISIONS OF LAW OTHER THAN THOSE OF TITLE III, PUBLIC LAW 810, ACT OF JUNE 29, 1948, WHICH WERE INVOLVED IN THE TANNER CASE, YOUR CLAIM FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, WAS DISALLOWED IN ACCORDANCE WITH OUR DECISION OF MARCH 2, 1956, 35 COMP. GEN. 497.

YOU NOW REQUEST RECONSIDERATION OF YOUR CLAIM FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, B -123382, 36 COMP. GEN. 808. IN THAT DECISION WE MERELY EXTENDED THE RULE BASED ON THE TANNER DECISION TO THOSE INDIVIDUALS WHOSE RETIRED STATUS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD DURING THE PERIOD FROM JULY 1, 1947, TO DECEMBER 30, 1952, INCLUSIVE, OR WHOSE RETIRED STATUS AS MEMBERS OF ANY OF THE RESERVE COMPONENTS COMMENCING JANUARY 1, 1953, ENTITLED THEM TO RECEIVE RETIREMENT PAY UNDER OTHER PROVISIONS OF LAW. 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. SEE B-134258, DECEMBER 30, 1957. SINCE YOU WERE RETIRED AS A MEMBER OF THE UNITED STATES MARINE CORPS RESERVE UNDER THE PROVISIONS OF THE ABOVE ACT OF AUGUST 27, 1940, 34 U.S.C. 855 (C/-1, YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT FOR THE PERIOD OF YOUR CLAIM PRIOR TO JANUARY 1, 1953. HENCE, FOR THE PERIOD JULY 29, 1946 TO SEPTEMBER 30, 1949, AND FROM OCTOBER 1, 1949, TO FEBRUARY 28, 1950, WHEN YOUR CIVILIAN SALARY WAS AT A RATE IN EXCESS OF $3,000 PER ANNUM, YOU WERE NOT ENTITLED TO RETIREMENT PAY.

CONCERNING YOUR CLAIM FOR THE PERIOD FEBRUARY 1 TO AUGUST 4, 1955 (WHICH PERIOD IS SUBSEQUENT TO JANUARY 1, 1953), THE RECORD SHOWS, AND YOU SO ADMIT, THAT THE ADMINISTRATIVE OFFICE PAID THAT PART OF YOUR CLAIM ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808.

FOR THE REASONS STATED THERE IS NO FURTHER AMOUNT DUE YOU FOR RETROACTIVE RETIRED PAY AND THE SETTLEMENT OF MARCH 4, 1957, IS SUSTAINED.