B-135114, APR. 18, 1958

B-135114: Apr 18, 1958

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RETIRED: REFERENCE IS MADE TO LETTER DATED JANUARY 22. SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL AUGUST 15. SINCE YOU WERE DISCHARGED FROM YOUR COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES ON JANUARY 31. THAT WAS BASED ON THE VIEW THAT. UNLESS YOU THEREAFTER WERE A DE JURE MEMBER OF A RESERVE WHOSE MEMBERS WERE SPECIFICALLY EXEMPTED BY STATUTE. YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30. SHOW THAT YOU WERE APPOINTED A COLONEL. YOU HAVE BEEN IN RECEIPT OF DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION. THE RECORDS ALSO SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE NATIONAL GUARD OF THE UNITED STATES ON JANUARY 31.

B-135114, APR. 18, 1958

TO COLONEL REX C. BOLEND, RETIRED:

REFERENCE IS MADE TO LETTER DATED JANUARY 22, 1958, WRITTEN IN YOUR BEHALF BY MR. MILTON W. HARDY, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED NOVEMBER 27, 1957, AND IN LETTER OF JANUARY 15, 1958, WHICH DISALLOWED THAT PART OF YOUR CLAIM FOR A RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THE PERIOD SUBSEQUENT TO JANUARY 31, 1951, INCIDENT TO YOUR SERVICE AS A COLONEL IN THE NATIONAL GUARD OF THE UNITED STATES.

BY SETTLEMENT DATED NOVEMBER 27, 1957, OUR CLAIMS DIVISION ALLOWED YOU THE SUM OF $13,105.98, REPRESENTING A RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THE PERIOD AUGUST 15, 1947, TO JANUARY 31, 1951, BUT DENIED THAT PART OF YOUR CLAIM FOR THE PERIOD PRIOR TO AUGUST 15, 1947 (JULY 1 TO AUGUST 14, 1947), SINCE YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE UNTIL AUGUST 15, 1957, OR WITHIN 10 YEARS FROM THE DATE IT FIRST ACCRUED AS REQUIRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 30 U.S.C. 71A. THEREAFTER, BY LETTER DATED JANUARY 15, 1958, ADDRESSED TO MR. HARDY, OUR CLAIMS DIVISION POINTED OUT THAT, SINCE YOU WERE DISCHARGED FROM YOUR COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES ON JANUARY 31, 1951, YOUR STATUS AS A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES OF THE UNITED STATES TERMINATED ON THAT DATE AND, THEREFORE, NO ENTITLEMENT TO RETIRED PAY EXISTS AFTER THAT DATE. THAT WAS BASED ON THE VIEW THAT, UNLESS YOU THEREAFTER WERE A DE JURE MEMBER OF A RESERVE WHOSE MEMBERS WERE SPECIFICALLY EXEMPTED BY STATUTE, YOU WERE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A.

THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY AND THE INFORMATION OBTAINED FROM THE ARMY REGISTER, 1957 (VOLUME II, PAGE 51), SHOW THAT YOU WERE APPOINTED A COLONEL, MEDICAL CORPS, NATIONAL GUARD OF THE UNITED STATES ON APRIL 4, 1934, ACCEPTED AUGUST 10, 1934; THAT YOU RETIRED BY REASON OF PHYSICAL DISABILITY EFFECTIVE SEPTEMBER 2, 1946, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. (1946 ED.) 456; AND THAT COMMENCING SEPTEMBER 3, 1946, YOU HAVE BEEN IN RECEIPT OF DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION. THE RECORDS ALSO SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE NATIONAL GUARD OF THE UNITED STATES ON JANUARY 31, 1951. IN APPLICATIONS FOR RETIRED PAY EXECUTED BY YOU ON AUGUST 27, AND OCTOBER 1, 1957, YOU SHOW THAT YOU HAVE BEEN EMPLOYED BY THE FEDERAL GOVERNMENT FROM JULY 22, 1946, TO THE PRESENT DATE, AND THAT THE POSITION YOU HOLD IS DIRECTOR, PROFESSIONAL SERVICES (MEDICAL OFFICER), VETERANS ADMINISTRATION HOSPITAL, LITTLE ROCK, ARKANSAS.

MR. HARDY QUESTIONS THE ACTION TAKEN BY THE NATIONAL GUARD BUREAU, DEPARTMENT OF THE ARMY, AND ALSO THE OKLAHOMA NATIONAL GUARD--- WHICH APPARENTLY ACTED CONCURRENTLY WITH NATIONAL GUARD BUREAU--- IN DISCHARGING YOU FROM THE NATIONAL GUARD. MR. HARDY APPEARS TO BE OF THE OPINION THAT YOUR DISCHARGE FROM THE NATIONAL GUARD DID NOT AFFECT YOUR RETIRED STATUS, AND HE BASES HIS OPINION ON A LETTER DATED FEBRUARY 19, 1951, WHICH YOU RECEIVED FROM LIEUTENANT GENERAL RAYMOND S. MCCLAIN, COMPTROLLER OF THE ARMY.

SINCE DURING THE PERIOD AUGUST 15, 1947, TO JANUARY 31, 1951, YOU WERE A DE JURE MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES, YOU WERE ENTITLED TO A RETROACTIVE ADJUSTMENT OF RETIRED PAY FOR THAT PERIOD ON THE BASIS OF THE ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASE OF MADDEN V. UNITED STATES, C.CLS. 454-55, AND THE RULE AS EXTENDED IN OUR DECISION OF JUNE 11, 1957, B-123382, 36 COMP. GEN. 808. IN THE MADDEN CASE THE PLAINTIFF--- WHO LIKE YOU WAS RETIRED FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939--- WAS A MEMBER OF THE OFFICERS' RESERVE CORPS AT THE TIME OF HIS RETIREMENT AND THEREAFTER CONTINUED TO BE A MEMBER OF A RESERVE COMPONENT. IN OUR DECISION OF JUNE 11, 1957, WE EXTENDED THE RULE BASED ON THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, TO THOSE INDIVIDUALS WHOSE RETIRED STATUS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD DURING THE PERIOD JULY 1, 1947, TO DECEMBER 31, 1952, OR WHOSE RETIRED STATUS AS MEMBERS OF ANY OTHER RESERVE COMPONENTS COMMENCING JANUARY 1, 1953, ENTITLED THEM TO RECEIVE RETIREMENT PAY UNDER OTHER PROVISIONS OF LAW.

WHILE THE RECORD BEFORE US DOES NOT DISCLOSE THE REASON FOR THE WITHDRAWAL OF FEDERAL RECOGNITION AND YOUR DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES, PARAGRAPH 30, NATIONAL GUARD REGULATIONS NO. 20, DECEMBER 11, 1947, IN EFFECT AT THE TIME OF YOUR DISCHARGE, PRESCRIBED SEVERAL REASONS FOR WITHDRAWAL OF FEDERAL RECOGNITION, INCLUDING THE WITHDRAWAL OF RECOGNITION OF AN OFFICER WHEN HE EXCEEDED THE MAXIMUM AGE PRESCRIBED FOR AN OFFICER OF HIS GRADE AND ASSIGNMENT. PARAGRAPH 29 PROVIDED THAT RECOGNITION OF A NATIONAL GUARD OFFICER WOULD TERMINATE WHEN HE HAS PASSED THE MAXIMUM AGE OFFICER. THE MAXIMUM AGE FOR A COLONEL AS PRESCRIBED IN PARAGRAPH PRESCRIBED FOR HIS GRADE IN PARAGRAPH 280 (2), IF BELOW THE GRADE OF GENERAL OFFICER. THE MAXIMUM AGE FOR A COLONEL AS PRESCRIBED IN PARAGRAPH 28C/2) OF THE REGULATIONS WAS 60 YEARS. SEE, ALSO, PARAGRAPH 2, NATIONAL GUARD REGULATIONS NO. 20-4, APRIL 19, 1956. UPON THE WITHDRAWAL OF YOUR FEDERAL RECOGNITION AND DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES YOU LOST YOUR RESERVE STATUS AND WHILE YOU, AS A FORMER OFFICER, CONTINUED TO BE ENTITLED TO THE RETIREMENT PAY YOU EARNED BY HAVING SERVED AS A RESERVE OFFICER AND WHICH WAS OTHERWISE PAYABLE, YOU NO LONGER COULD CLAIM THE BENEFITS OF THE ACT OF JULY 1, 1947, GRANTED TO RESERVISTS AND MEMBERS OF THE NATIONAL GUARD, WHICH MIGHT HAVE PERMITTED YOU TO RECEIVE BOTH SUCH RETIRED PAY AND COMPENSATION OF THE CIVILIAN POSITION. ACCORDINGLY, THE ACTION TAKEN IN SETTLEMENT OF NOVEMBER 27, 1957, AND LETTER OF JANUARY 15,1958, IS SUSTAINED.

SINCE SUBMITTING YOUR CLAIM HERE, THE COURT OF CLAIMS CONSIDERED A CASE SOMEWHAT SIMILAR TO YOURS IN THE CASE OF SARLES V. UNITED STATES, C.CLS. 353-56, DECIDED MARCH 5, 1958. IN THAT CASE THE PLAINTIFF, THEN NEARLY 65 YEARS OF AGE, WAS HONORABLY DISCHARGED FROM HIS COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES ON JULY 27, 1951. THE COURT HELD THAT THE PLAINTIFF WAS ENTITLED TO CONTINUE TO RECEIVE RETIRED PAY ON AND AFTER JULY 27, 1951, DURING WHICH PERIOD HE WAS EMPLOYED BY THE GOVERNMENT AS A CIVILIAN EMPLOYEE. THE COURT'S DECISION WAS BASED ON THE CONCLUSION THAT THE TERM IN SECTION 2 OF THE ABOVE ACT OF JULY 1, 1947, 61 STAT. 239,"ANY MEMBER OF THE NATIONAL GUARD" MEANT ANY PERSON WHO HAS ACQUIRED A RIGHT TO RETIRED PAY, OR TO PAY AND ALLOWANCES, BY REASON OF HIS MEMBERSHIP IN THE NATIONAL GUARD. WE CANNOT RECONCILE THE COURT'S OPINION IN THIS CASE WITH ITS OPINION IN THE CASE OF LEONARD V. UNITED STATES, C.CLS. 182-55, DECIDED NOVEMBER 7, 1956. THE COURT HELD IN THE LEONARD CASE (PLAINTIFF HELD A COMMISSION IN THE ARMY OF THE UNITED STATES AND WAS HONORABLY DISCHARGED FOR PHYSICAL DISABILITY) THAT UPON HIS DISCHARGE THE OFFICER LOST HIS MILITARY STATUS AND BECAME A CIVILIAN NO LONGER SUBJECT TO MILITARY DISCIPLINE AND, CONSEQUENTLY, WAS NOT COVERED BY THE PROVISIONS OF SECTION 1 OF THE ABOVE ACT OF JULY 1, 1947. WE FEEL THAT THE DECISION IN THE SARLES CASE SHOULD NOT BE FOLLOWED AS A PRECEDENT IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS, AT LEAST NOT UNTIL THE COURT HAS HAD AN OPPORTUNITY TO CLARIFY AND DISTINGUISH ITS HOLDING IN THE SARLES CASE FROM THAT IN THE LEONARD CASE.