B-140379, APRIL 13, 1962, 41 COMP. GEN. 675

B-140379, APRIL 13, 1962, 41 COMP. GEN. 675

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RESERVE MEMBERSHIP - APPOINTEES UNDER ACT OF SEPTEMBER 22, 1941 A RETIRED MEMBER OF THE UNIFORMED SERVICES WHOSE RETIRED PAY WAS WITHHELD WHILE HE HELD A CIVILIAN POSITION BUT WHOSE SERVICE RECORD SHOWS THAT HE WAS ENTITLED TO RECEIVE DISABILITY RETIRED PAY ON THE BASIS OF THE GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES, TO WHICH HE HAD BEEN APPOINTED AND PROMOTED PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, ALTHOUGH AT THE TIME OF PLACEMENT ON THE DISABILITY RETIRED LIST, HE WAS SERVING ON ACTIVE DUTY AS A WARRANT OFFICER AND HOLDING A RESERVE COMMISSION, IS REGARDED AS HAVING EARNED THE RIGHT TO RETIRED PAY ON THE BASIS OF OFFICER SERVICE ENTITLING HIM TO THE SAME RIGHTS AND BENEFITS AS A MEMBER OF A RESERVE COMPONENT AND, THEREFORE, UNDER WATMAN V. UNITED STATES, CT.1CL. NO. 189-59, DECIDED MARCH 1, 1961, WHICH EXTENDED AND APPLIED THE DUAL COMPENSATION EXEMPTION TO ARMY OF THE UNITED STATES APPOINTEES UNDER THE 1941 ACT, THE MEMBER IS ENTITLED TO RETIRED PAY WITHHELD OR RECOVERED FROM HIM UNDER THE DUAL COMPENSATION RESTRICTION, 5 U.S.C. 59A.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, APRIL 13, 1962:

ON DECEMBER 19, 1961, THE OFFICE OF CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 10, 1961, AND ENCLOSURES (UNDER D.O. NUMBER 262, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT MARIO C. STROLLO, RETIRED, 101 174 159, IN THE AMOUNT OF $1,594.40. THIS AMOUNT REPRESENTS RETIRED PAY WITHHELD OR RECOVERED FROM HIM FOR THE PERIOD FROM FEBRUARY 2, 1953, THROUGH JUNE 30, 1955, DUE TO THE DUAL COMPENSATION RESTRICTION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

IN OUR DECISION DATED OCTOBER 9, 1959, B-140379, 39 COMP. GEN. 280, WE CONCLUDED THAT LIEUTENANT STROLLO HAD NOT RECEIVED THE RETIRED PAY "UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES" WITHIN THE MEANING OF THE EXEMPTION PROVISIONS OF THE ACT OF JULY 1, 1947, 61 STAT. 239, AS AMENDED, 10 U.S.C. 371B (1952 USED.), SINCE HIS RETIRED GRADE OF FIRST LIEUTENANT APPEARS TO HAVE BEEN BASED ON THE FACT THAT HE HAD SERVED SATISFACTORILY ON ACTIVE DUTY IN THAT GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND NOT ON THE FACT THAT HE HELD THE GRADE OF FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, AT THE TIME HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

FURTHER CONSIDERATION OF THE MATTER HAS BEEN REQUESTED BY LIEUTENANT STROLLO ON THE BASIS OF OUR DECISION DATED MAY 18, 1961, B-136459, 40 COMP. GEN. 625, RELATIVE TO THE COURT'S OPINION IN THE CASE OF WATMAN V. UNITED STATES, CT.1CL. NO. 189-59, DECIDED MARCH 1, 1961, WHEREIN THE PLAINTIFF OBTAINED JUDGMENT FOR RETIRED PAY GRANTED HIM FOR DISABILITY UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. 456 (1952 USED.), FOLLOWING ACTIVE DUTY AS A MEMBER OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT, BUT WHICH HAD BEEN WITHHELD UNDER THE RESTRICTIONS OF THE ECONOMY ACT.

IN OUR DECISION OF MAY 18, 1961, WE STATED THAT WE WILL NOT QUESTION ANY OTHERWISE PROPER PAYMENTS OF RETIRED PAY WHICH MAY BE MADE ADMINISTRATIVELY ON AUTHORITY OF THE WATMAN CASE. IN THAT CASE THE COURT HELD THAT THE PLAINTIFF'S INACTIVE STATUS IN THE OFFICERS' RESERVE CORPS HAD NOTHING TO DO WITH THE CASE AND CONCLUDED THAT THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, 729, 10 U.S.C. 484 NOTE (1946 USED.), GRANTING TO OFFICERS APPOINTED IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE PROVISIONS OF THAT ACT "THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE," EXEMPTED HIM FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED. IT APPEARS THAT, UNDER THE RULE OF THE WATMAN CASE, THE DUAL COMPENSATION RIGHTS OF PERSONS SERVING ON ACTIVE DUTY AS TEMPORARY OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AT THE TIME OF RETIREMENT MUST BE DETERMINED ON THE BASIS OF THE TEMPORARY OFFICER STATUS ON WHICH THEIR RETIRED PAY IS BASED AND THAT THEIR INACTIVE RESERVE STATUS, IF ANY, AT THE TIME IS OF NO SIGNIFICANCE.

BY LETTER DATED MARCH 16, 1962, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, ADVISED US THAT LIEUTENANT STROLLO WAS APPOINTED A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT ON NOVEMBER 26, 1942, UNDER AUTHORITY OF THE ACT OF SEPTEMBER 22, 1941, AND THAT HIS PROMOTION TO FIRST LIEUTENANT ON JUNE 1, 1945, WAS ACCOMPLISHED UNDER THE SAME AUTHORITY. IT FURTHER APPEARS THAT THE OFFICER WAS SEPARATED FROM HIS COMMISSIONED STATUS ON JUNE 29, 1946; THAT HE REENLISTED IN THE REGULAR ARMY ON JUNE 30, 1946, AND WAS APPOINTED A WARRANT OFFICER, W-1, ARMY OF THE UNITED STATES, ON JUNE 20, 1951. THEREAFTER, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JANUARY 31, 1953, WITH THE RETIRED PAY OF A FIRST LIEUTENANT AS PROVIDED BY SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272 (1952 USED.). HE WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 1, 1954, WITH THE GRADE AND RETIRED PAY OF A FIRST LIEUTENANT UNDER THE PROVISIONS OF SECTION 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 279 (1952 USED.).

IN THE CASE OF BOWMAN, ET AL. ( NATHAN REED WARTHEN, PLAINTIFF NO. 5) V. UNITED STATES, 144 CT. CL. 448, THE COURT STATED IN AN OPINION RENDERED JANUARY 14, 1959, THAT THE ACT OF JULY 1, 1947, 61 STAT. 238, 239, PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY "BY REASON OF SERVICE IN A RESERVE COMPONENT.' ACCORDINGLY UNDER THE REASONING OF THE WATMAN CASE, WHICH EXTENDED AND APPLIED THE EXEMPTION FROM THE PROHIBITION AGAINST DUAL COMPENSATION CONTAINED IN THE 1947 LAW TO ARMY OF THE UNITED STATES APPOINTEES UNDER THE ACT OF SEPTEMBER 22, 1941, THE VOUCHER SUBMITTED WITH YOUR LETTER NOW MAY BE PAID, IF OTHERWISE CORRECT. CF. CLYDE B. COX V. UNITED STATES, CT. CL. NO. 228-60, DECIDED DECEMBER 6, 1961.