B-141835, JUNE 3, 1960, 39 COMP. GEN. 810

B-141835: Jun 3, 1960

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CONTINUES TO RECEIVE TEMPORARY DISABILITY RETIRED PAY BASED UPON HIS WARRANT OFFICER GRADE UNDER FORMULA 4 OF 10 U.S.C. 1401 IS NOT RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AS USED IN SECTION 212 OF THE ECONOMY ACT OF 1932. THE DUAL COMPENSATION RESTRICTION IS NOT FOR APPLICATION. IN WHICH IT WAS HELD THAT A COMMISSIONED WARRANT OFFICER GRADE BECAUSE OF A HIGHER TEMPORARY COMMISSION ONCE HELD AND WHO STATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932. THE MEMBER IS SUBJECT TO THE $10. SO THAT IF THE RETIRED WARRANT OFFICER IS RETIRED FOR A PERMANENT DISABILITY IN A COMMISSIONED OFFICER GRADE BECAUSE OF A HIGHER COMMISSION ONCE HELD BUT CONTINUES TO RECEIVE RETIRED PAY BASED ON THE WARRANT OFFICER GRADE HE IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTION.

B-141835, JUNE 3, 1960, 39 COMP. GEN. 810

MILITARY PERSONNEL - DUAL COMPENSATION - WARRANT OFFICERS - RECEIPT OF RETIRED PAY BASED ON WARRANT OFFICER V. HIGHER COMMISSIONED GRADE A RETIRED PERMANENT REGULAR COMMISSIONED WARRANT OFFICER OF THE NAVY WHO HAS HIS NAME PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN A COMMISSIONED OFFICER GRADE BUT WHO, BECAUSE OF ENTITLEMENT TO RETIRED PAY COMPUTED ON THE FORMULA MOST FAVORABLE TO HIM, CONTINUES TO RECEIVE TEMPORARY DISABILITY RETIRED PAY BASED UPON HIS WARRANT OFFICER GRADE UNDER FORMULA 4 OF 10 U.S.C. 1401 IS NOT RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AS USED IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AND, THEREFORE, THE DUAL COMPENSATION RESTRICTION IS NOT FOR APPLICATION. A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER OF THE NAVY WHO HAS HIS NAME PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN A COMMISSIONED OFFICER GRADE BECAUSE OF A HIGHER TEMPORARY COMMISSION ONCE HELD AND WHO RECEIVES RETIRED PAY OF THAT GRADE DOES NOT COME WITHIN THE RULE IN TATO V. UNITED STATES, 136 CT. CL. 651, IN WHICH IT WAS HELD THAT A COMMISSIONED WARRANT OFFICER GRADE BECAUSE OF A HIGHER TEMPORARY COMMISSION ONCE HELD AND WHO STATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A; THEREFORE, THE MEMBER IS SUBJECT TO THE $10,000 PER ANNUM DUAL COMPENSATION RESTRICTION. A RETIREMENT OF A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER FOR A DISABILITY OF A PERMANENT NATURE, AS DISTINGUISHED FROM PLACEMENT OF THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST, WOULD NOT CHANGE THE APPLICATION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, SO THAT IF THE RETIRED WARRANT OFFICER IS RETIRED FOR A PERMANENT DISABILITY IN A COMMISSIONED OFFICER GRADE BECAUSE OF A HIGHER COMMISSION ONCE HELD BUT CONTINUES TO RECEIVE RETIRED PAY BASED ON THE WARRANT OFFICER GRADE HE IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTION. WARRANT OFFICERS WHO ARE VOLUNTARILY RETIRED UNDER 10 U.S.C. 1293, ADVANCED ON THE RETIRED LIST TO A HIGHER COMMISSIONED OFFICER GRADE, BUT WHO CONTINUE TO RECEIVE RETIRED PAY BASED UPON THE COMMISSIONED WARRANT OFFICER GRADE, ARE NOT RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AS USED IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AND, THEREFORE, ARE NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTION; HOWEVER, IF THEY RECEIVE RETIRED PAY BASED UPON THE HIGHER COMMISSIONED GRADE, THEY ARE SUBJECT TO THE $10,000 PER ANNUM DUAL COMPENSATION RESTRICTION. SINCE REGULAR WARRANT OFFICERS OF THE ARMY AND AIR FORCE ARE NOT COMMISSIONED OFFICERS, THE DUAL COMPENSATION RULES ESTABLISHED FOR RETIRED WARRANT OFFICERS OF THE NAVY WOULD BE FOR APPLICATION TO THE SAME EXTENT.

TO THE SECRETARY OF DEFENSE, JUNE 3, 1960:

BY LETTER DATED JANUARY 22, 1960, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED DECISION ON CERTAIN QUESTIONS SET OUT AND DISCUSSED IN COMMITTEE ACTION NO. 256 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, CONCERNING THE APPLICABILITY OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, TO RETIRED COMMISSIONED WARRANT OFFICERS. IT IS STATED THAT THE RETIRED OFFICERS INTENDED IN QUESTIONS 1 AND 2 ARE OF THE CATEGORY TO WHICH THE DUAL EMPLOYMENT ACT (28 STAT. 205, AS AMENDED, 5 U.S.C. 62) WOULD APPLY WERE IT NOT FOR THE CIRCUMSTANCES OF RETIREMENT BY REASON OF PHYSICAL DISABILITY (NOT COMBAT INCURRED OR CAUSED BY AN INSTRUMENTALITY OF WAR). THE QUESTIONS ARE SEPARATELY QUOTED AND ANSWERED BELOW.

QUESTION 1 IS AS FOLLOWS:

1. IF OTHERWISE APPLICABLE, WOULD THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, APPLY IN THE CASE OF:

A. A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN COMMISSIONED OFFICER GRADE ALTHOUGH RECEIVING TEMPORARY DISABILITY RETIRED PAY BASED UPON COMMISSIONED WARRANT OFFICER GRADE?

B. A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN COMMISSIONED OFFICER GRADE AND WHO IS RECEIVING TEMPORARY DISABILITY RETIRED PAY BASED UPON COMMISSIONED OFFICER GRADE?

IT IS REPORTED THAT QUESTION A STEMS FROM A FACTUAL CIRCUMSTANCE IN THE NAVY. IT APPEARS THAT THE MEMBER CONCERNED WAS DETERMINED TO BE INCAPACITATED BY REASON OF PHYSICAL DISABILITY RATED AS 40 PERCENT AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF CHIEF SUPPLY CLERK (W-4), EFFECTIVE FEBRUARY 1, 1958. THE TOTAL NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE FOR COMPUTATION OF THE PERCENTAGE MULTIPLE FACTOR WAS 30, IN ACCORDANCE WITH WHICH HIS RETIRED PAY WAS COMPUTED AT THE ELECTION OF THE MEMBER. ON SEPTEMBER 10, 1957, THE SECRETARY OF THE NAVY HAD DETERMINED THE HIGHEST GRADE IN WHICH THE MEMBER HAD SATISFACTORILY SERVED WAS LIEUTENANT.

IN VIEW OF THIS DETERMINATION, WHICH THE ORDER PLACING THE MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST DID NOT REFLECT, SUCH ORDER WAS CORRECTED TO SHOW THAT HIS RETIREMENT WAS IN THE GRADE OF LIEUTENANT. THIS CORRECTION IS STATED TO HAVE BEEN PURELY CLERICAL AND ADMINISTRATIVE AND NOT MADE PURSUANT TO 10 U.S.C. 1552. IN THE CORRECTION LETTER, THE MEMBER'S RETIREMENT ( TDRL) WAS INDICATED IN THE GRADE OF LIEUTENANT BUT WITH RETIRED PAY COMPUTED ON THE BASIS OF HIS SERVICE AS A COMMISSIONED WARRANT OFFICER (W-4).

PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST NOW IS ACCOMPLISHED UNDER AUTHORITY OF 10 U.S.C. 1202, WITH THE RESULTANT ENTITLEMENT TO RECEIVE RETIRED PAY "COMPUTED UNDER SECTION 1401 OF THIS TITLE.'

SECTION 1372, TITLE 10 OF THE U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, ANY MEMBER OF AN ARMED FORCE WHO IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 1201 AND 1204 OF THIS TITLE, OR WHOSE NAME IS PLACED ON THE TEMPORARY GRADE EQUIVALENT TO THE HIGHEST OF THE FOLLOWING:

(1) THE GRADE OR RANK IN WHICH HE IS SERVING ON THE DATE WHEN HIS NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OR, IF HIS NAME WAS NOT CARRIED ON THAT LIST, ON THE DATE WHEN HE IS RETIRED.

(2) THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM WHICH HE IS RETIRED.

SECTION 1401, TITLE 10 OF THE U.S. CODE, PROVIDES THAT IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THE TABLE IN THAT SECTION, OR UNDER ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA "THAT IS MOST FAVORABLE TO HIM.' IN THIS CONNECTION, FORMULA NO. 4--- NOT INVOLVING DISABILITY RETIREMENTS--- AUTHORIZES COMPUTATION OF RETIRED PAY ON THE BASIS OF THE MONTHLY BASIC PAY TO WHICH THE MEMBER WOULD HAVE BEEN ENTITLED IF HE HAD SERVED ON ACTIVE DUTY IN HIS RETIRED GRADE ON THE DAY BEFORE RETIREMENT OR,"IF THE PAY OF THAT GRADE IS LESS THAN THE PAY OF ANY WARRANT GRADE SATISFACTORILY HELD BY HIM ON ACTIVE DUTY, THE MONTHLY BASIC PAY OF THAT WARRANT OFFICER GRADE.'

THE DUAL COMPENSATION RESTRICTION CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, IS DIRECTED AGAINST THE RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF THE COMBINED RATE OF $10,000 PER ANNUM, WHEN SUCH RETIRED PAY IS "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' QUESTION A IS DIRECTED TO THE MATTER OF WHETHER A RETIRED PERMANENT REGULAR COMMISSIONED WARRANT OFFICER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN A "COMMISSIONED OFFICER" GRADE MAY BE REGARDED AS RECEIVING RETIRED PAY FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER, ALTHOUGH HE IS RECEIVING TEMPORARY DISABILITY RETIRED PAY UPON A COMMISSIONED WARRANT OFFICER GRADE.

IN OUR DECISION OF MARCH 7, 1958, 37 COMP. GEN. 591, WE SAID THAT WE WOULD FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE CASES OF TATO V. UNITED STATES, 136 C.1CLS. 651, AND ATKINS, ET AL. V. UNITED STATES, 141 C.1CLS. 88. IN THOSE CASES, THE COURT OF CLAIMS HELD THAT A COMMISSIONED WARRANT OFFICER IS NOT A "COMMISSIONED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THE DUAL COMPENSATION LIMITATION IN SECTION 212. SUCH OFFICERS WILL BE REFERRED TO HEREIN AS WARRANT OFFICERS. THE SECRETARY'S DETERMINATION THAT THE HIGHEST GRADE IN WHICH A MEMBER, SUCH AS THE ONE INVOLVED IN QUESTION A, HAD SATISFACTORILY SERVED WAS THAT OF LIEUTENANT WOULD RESULT IN HIS RECEIVING THE RETIRED PAY OF A LIEUTENANT UNDER FORMULA 2 OF 10 U.S.C. 1401, UNLESS, AS IS ASSUMED TO BE THE CASE HERE, HE COULD QUALIFY FOR HIGHER RETIRED PAY UNDER FORMULA 4, BASED ON THE MONTHLY BASIC PAY OF HIS WARRANT OFFICER GRADE. IN SUCH CIRCUMSTANCES, IT APPEARS THAT HE IS NOT RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' ACCORDINGLY, QUESTION A IS ANSWERED BY SAYING THAT SO LONG AS THE RETIRED PERMANENT REGULAR WARRANT OFFICER PROPERLY IS IN RECEIPT OF TEMPORARY DISABILITY RETIRED PAY COMPUTED UNDER FORMULA 4 OF 10 U.S.C. 1401, ON THE BASIS OF HIS WARRANT OFFICER PAY, HE NEED NOT BE CONSIDERED AS WITHIN THE INHIBITION OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED.

REGARDING QUESTION B, IT APPEARS THAT A PERMANENT REGULAR WARRANT OFFICER WHOSE NAME IS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST IN A COMMISSIONED OFFICER GRADE BECAUSE OF A HIGHER TEMPORARY COMMISSION ONCE HELD AND WHO RECEIVES THE RETIRED PAY OF THAT GRADE DOES NOT COME WITHIN THE RULE OF THE TATO CASE, AND SIMILAR COURT DECISIONS. THERE APPEARS TO BE NO BASIS FOR SUBSTANTIALLY DISTINGUISHING THIS QUESTION FROM THAT INVOLVED IN OUR DECISION OF DECEMBER 10, 1957, B-134102. IN THAT CASE WE HELD THAT AN ENLISTED MAN OF THE REGULAR ARMY, ADVANCED SUBSEQUENT TO HIS RETIREMENT TO THE HIGHEST TEMPORARY COMMISSIONED OFFICER GRADE SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY, WITH ENTITLEMENT TO THE INCREASED RETIRED PAY IN THAT GRADE, WAS SUBJECT TO THE $10,000 PER ANNUM RESTRICTION IMPOSED BY 5 U.S.C. 59A, SINCE THE RETIRED PAY HE RECEIVED WAS ON ACCOUNT OF HIS SERVICE AS A COMMISSIONED OFFICER. ACCORDINGLY, QUESTION B IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS AS FOLLOWS:

2. WOULD THE ANSWERS TO THE FOREGOING BE THE SAME IF THE CIRCUMSTANCES STATED WERE CHANGED ONLY TO THE EXTENT THAT RETIREMENT IN EACH CASE WAS BECAUSE OF DISABILITY OF A PERMANENT NATURE?

IN ANSWER TO QUESTION 2, YOU ARE ADVISED THAT WE CONCUR IN THE OPINION EXPRESSED IN THE COMMITTEE ACTION TO THE EFFECT THAT NO REASON IS APPARENT WHY TEMPORARY DISABILITY RETIREMENT STATUS SHOULD CHANGE THE SITUATION SO AS TO REQUIRE DIFFERENT ANSWERS IF THE MEMBER WAS RETIRED FOR PERMANENT PHYSICAL DISABILITY. QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3 IS AS FOLLOWS:

3. IF OTHERWISE APPLICABLE, WOULD THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, APPLY IN THE CASE OF:

A. A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER, VOLUNTARILY RETIRED AS SUCH, ADVANCED ON THE RETIRED LIST TO A HIGHER COMMISSIONED OFFICER GRADE, AND RECEIVING RETIRED PAY BASED UPON HIS COMMISSIONED WARRANT OFFICER GRADE?

B. A PERMANENT REGULAR COMMISSIONED WARRANT OFFICER, VOLUNTARILY RETIRED AS SUCH, ADVANCED ON THE RETIRED LIST TO A HIGHER COMMISSIONED OFFICER GRADE, AND RECEIVING RETIRED PAY BASED UPON SUCH HIGHER GRADE?

WARRANT OFFICERS MAY BE VOLUNTARILY RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 1293 WHEN THEY HAVE AT LEAST 20 YEARS OF ACTIVE SERVICE. WHEN SO RETIRED, THEIR RETIRED PAY IS COMPUTED UNDER FORMULA 4, 10 U.S.C. 1401. ACCORDINGLY, THE ANSWERS TO THE QUESTIONS HERE INVOLVED ARE THE SAME AS THE ANSWERED TO QUESTIONS A AND B. QUESTION 3A IS ANSWERED IN THE NEGATIVE AND QUESTION 3B IN THE AFFIRMATIVE.

QUESTION 4 IS AS FOLLOWS:

4. WOULD THE ANSWERS TO THE FOREGOING QUESTIONS APPLY IN SIMILAR INSTANCES INVOLVING REGULAR WARRANT OFFICERS OF THE ARMY AND AIR FORCE?

REGULAR WARRANT OFFICERS OF THE ARMY AND AIR FORCE CLEARLY ARE NOT COMMISSIONED OFFICERS. INSOFAR AS THE MATTERS HERE INVOLVED ARE CONCERNED, IF THEY BECOME ENTITLED TO RETIRED PAY UNDER CIRCUMSTANCES SIMILAR TO THOSE DISCUSSED ABOVE, THEY ARE SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT TO THE EXTENT THERE INDICATED. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.