B-136167, FEB. 4, 1963

B-136167, FEB. 4, 1963

TO MAJOR J. J. JOHNS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1962, FORWARDED THROUGH THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF-685, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF MAJOR JOHN E. DOYLE IN THE AMOUNT OF $16,771.33, REPRESENTING RETIRED PAY WITHHELD FROM HIM DURING THE PERIOD OCTOBER 31, 1955, THROUGH SEPTEMBER 30, 1962, AS IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A.

MAJOR DOYLE WAS RETIRED OCTOBER 31, 1952, AS MASTER SERGEANT, REGULAR AIR FORCE, UNDER THE ACT OF MARCH 2, 1907, CH. 2515, 34 STAT. 1217, 10 U.S.C. 947 (1952 ED.), AND WAS ADVANCED IMMEDIATELY ON THE RETIRED LIST TO THE GRADE OF CAPTAIN PURSUANT TO SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086, 10 U.S.C. 1004 (1952 ED.). HE WAS FURTHER ADVANCED ON THE RETIRED LIST TO THE GRADE OF MAJOR PURSUANT TO THE ACT OF MAY 31, 1956, CH. 348, 70 STAT. 222.

THE QUESTION AS TO MAJOR DOYLE'S ENTITLEMENT TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION WAS RAISED IN VIEW OF THE ANSWER TO QUESTION 1B IN OUR DECISION OF JULY 9, 1962, B-136459. THAT DECISION WAS BASED ON THE COURT OF CLAIMS DECISION IN THE CASE OF WATMAN V. UNITED STATES, CT.CL.NO. 189-59, DATED MARCH 1, 1961. THE EXEMPTION IS BASED ON THE PROVISO IN SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, AS AMENDED, 10 U.S.C. 371B (1952 ED.). WATMAN WAS RETIRED IN JANUARY 1947 FROM SERVICE IN THE ARMY OF THE UNITED STATES UNDER AN APPOINTMENT MADE PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, WHICH ENTITLED MEMBERS APPOINTED THEREUNDER TO THE "SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE.' THE COURT BROUGHT OUT IN THE WATMAN DECISION AND REAFFIRMED IN THE CASE OF GRADALL V. UNITED STATES, CT.CL.NO. 4-60, DECIDED MAY 9, 1962, THAT THE EXEMPTION APPLIES TO A MEMBER'S RETIRED PAY ONLY IF HE EARNED THE RIGHT TO THAT RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT (OR, AS IN WATMAN'S CASE, SERVICE ENTITLING HIM TO THE SAME RIGHTS, PRIVILEGES AND BENEFITS WHICH WOULD HAVE ACCRUED TO HIM IF SUCH SERVICE HAD BEEN IN A RESERVE COMPONENT) OR BY REASON OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT. IF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT HAD NO BEARING ON HIS RIGHT TO RETIRED PAY, IT WILL HAVE NO BEARING ON HIS RIGHT TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION.

QUESTION 1B REFERRED TO ABOVE DEALT WITH MEMBERS WHO, AT THE TIME OF RETIREMENT, WERE SERVING ON ACTIVE DUTY IN A REGULAR WARRANT OFFICER OR REGULAR ENLISTED STATUS AND WERE RETIRED IN THE RESERVE COMMISSIONED GRADE HELD. THE ANSWER IN OUR DECISION OF JULY 9, 1962, POINTS OUT THAT, IN THE VARIOUS SITUATIONS DISCUSSED, IF THE RETIREMENT WAS BASED ON RESERVE SERVICE OR RESERVE STATUS, THE MEMBER IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION.

THE STATEMENT OF SERVICE AND OTHER RECORDS FORWARDED WITH YOUR LETTER INDICATE THAT MAJOR DOYLE WAS RELEASED FROM ACTIVE DUTY AS A MAJOR ON OCTOBER 7, 1952, FOR THE PURPOSE OF REENLISTING IN THE REGULAR AIR FORCE AND THAT ALL OF HIS ACTIVE SERVICE IN COMMISSIONED GRADES FROM APRIL 29, 1942, TO OCTOBER 7, 1952, HAD BEEN PERFORMED UNDER TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES AND THE AIR FORCE OF THE UNITED STATES. WHILE THE ACT OF SEPTEMBER 22, 1941, GRANTED MEMBERS APPOINTED THEREUNDER THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS, THAT ACT WAS REPEALED EFFECTIVE JULY 1, 1948, BY SECTION 2 OF THE ACT OF JULY 25, 1947, CH. 327, 61 STAT. 451. MAJOR DOYLE'S APPOINTMENT AS MAJOR IN THE AIR FORCE OF THE UNITED STATES WAS EFFECTED ON FEBRUARY 15, 1951, PRESUMABLY UNDER AUTHORITY OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 906, 10 U.S.C. 506D (1952 ED.), WHICH ENTITLED MEMBERS APPOINTED THEREUNDER TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS ONLY WHILE SERVING ON ACTIVE DUTY. ALTHOUGH MAJOR DOYLE HELD A RESERVE COMMISSION AS MAJOR CONTINUOUSLY FROM JULY 2, 1947, IT APPEARS THAT HE NEVER SERVED ON ACTIVE DUTY UNDER THAT COMMISSION AND THAT SUCH COMMISSION HAD NO BEARING ON HIS RIGHT TO BE RETIRED OR ON THE COMPUTATION OF HIS RETIRED PAY. HIS ADVANCEMENT TO THE GRADE OF MAJOR ON THE RETIRED LIST UNDER THE ACT OF MAY 31, 1956, WAS PREDICATED ON SATISFACTORY SERVICE UNDER A TEMPORARY APPOINTMENT IN THAT GRADE WHILE ON ACTIVE DUTY. UNDER THESE CIRCUMSTANCES PAYMENT OF RETIRED PAY CONCURRENTLY WITH RECEIPT OF SALARY AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT IN EXCESS OF THE MAXIMUM SPECIFIED IN THE ECONOMY ACT, AS AMENDED, IS NOT AUTHORIZED AND THE VOUCHER SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.