B-142519, JUN. 23, 1960

B-142519: Jun 23, 1960

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF MARCH 22. DISALLOWING HIS CLAIM FOR THE AMOUNT OF MILITARY RETIRED PAY WITHHELD (WHILE HE WAS CONCURRENTLY EMPLOYED IN A FEDERAL CIVILIAN CAPACITY) DURING THE PERIOD MARCH 6 TO AUGUST 31. THE RECORD SHOWS THAT THE CLAIMANT WAS CERTIFIED FOR THE BENEFITS PRESCRIBED IN SECTION 5. THE FACT THAT HE WAS REAPPOINTED A WARRANT OFFICER. WAS DISALLOWED IN THE SETTLEMENT OF OCTOBER 27. THEREBY RAISING A QUESTION AS TO WHETHER HE WAS A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES DURING THE PERIOD COVERED BY HIS CLAIM. GEN. 808 WE INTERPRETED THE TANNER DECISION AND RELATED CASES AS HAVING PROCEEDED ON THE BASIS THAT THE EXEMPTION FROM THE RESTRICTIONS OF SECTION 212 WHICH IS GRANTED TO "ANY MEMBER" OF THE RESERVE COMPONENTS BY SECTION 1 (B) ACT OF JULY 1.

B-142519, JUN. 23, 1960

TO MR. FRANZ O. WILLENBUCHER, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1960, REQUESTING RECONSIDERATION ON BEHALF OF COLONEL ALVAN KILLGORE, U.S. AIR FORCE RESERVE, RETIRED, OF THE ACTION TAKEN IN CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, SETTLEMENT DATED OCTOBER 27, 1959, DISALLOWING HIS CLAIM FOR THE AMOUNT OF MILITARY RETIRED PAY WITHHELD (WHILE HE WAS CONCURRENTLY EMPLOYED IN A FEDERAL CIVILIAN CAPACITY) DURING THE PERIOD MARCH 6 TO AUGUST 31, 1959, INCLUSIVE, BY REASON OF THE RESTRICTIVE PROVISIONS OF SECTION 212, ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A.

THE RECORD SHOWS THAT THE CLAIMANT WAS CERTIFIED FOR THE BENEFITS PRESCRIBED IN SECTION 5, ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 456, 1946 ED. (DISABILITY RETIRED PAY COMPUTED ON THE GRADE OF COLONEL, ARMY OF THE UNITED STATES) EFFECTIVE FROM AUGUST 18, 1947, THE DATE OF HIS RELEASE TO INACTIVE STATUS. THE FACT THAT HE WAS REAPPOINTED A WARRANT OFFICER, JUNIOR GRADE, IN THE REGULAR ARMY EFFECTIVE AUGUST 18, 1947, AND DIRECTED TO BE RETIRED IN THAT CAPACITY BECAUSE OF DISABILITY UNDER AUTHORITY OF R.S. 1251, EFFECTIVE AUGUST 31, 1947 (SEE WAR DEPARTMENT SPECIAL ORDERS NO. 162, AUGUST 18, 1947, WAR DEPARTMENT SPECIAL ORDERS NO. 165, AUGUST 21, 1947, AND 10 U.S.C. 598 AND 594, 1946 ED., RESPECTIVELY), DID NOT AFFECT HIS DISABILITY RETIRED PAY STATUS WHICH REMAINED UNDISTURBED WITH RESPECT TO THE PROVISIONS OF THE 1939 ACT AND HE THEREFORE CONTINUED ENTITLED TO RECEIVE DISABILITY RETIRED PAY COMPUTED ON THE BASIS OF THE GRADE OF COLONEL, AUS.

UNDER AUTHORITY OF OPTION (A), SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, COLONEL KILLGORE'S RETIRED PAY HAS BEEN COMPUTED EFFECTIVE FROM OCTOBER 1, 1949, ON THE BASIS OF THE GRADE OF COLONEL (HIS STATUS IN THE ARMY OF THE UNITED STATES) IN ACCORDANCE WITH THE PROVISIONS OF SECTION 402 (D) OF THE 1949 LAW, 63 STAT. 818. HIS APPOINTMENT AS A COLONEL, RESERVE OF THE AIR FORCE (AN INDEFINITE APPOINTMENT) WHICH HE ACCEPTED ON MARCH 6, 1959, TOGETHER WITH ASSIGNMENT TO THE RETIRED RESERVE SECTION AND THE PLACEMENT OF HIS NAME ON THE U.S. AIR FORCE RESERVE RETIRED LIST, EFFECTIVE MARCH 31, 1959, LIKEWISE DID NOT TERMINATE HIS ENTITLEMENT TO RECEIVE DISABILITY RETIRED PAY BASED ON THE GRADE OF COLONEL, ARMY OF THE UNITED STATES.

THE RECORD FURTHER SHOWS THAT COLONEL KILLGORE ACCEPTED FEDERAL CIVILIAN EMPLOYMENT ON SEPTEMBER 26, 1955, AND THAT EFFECTIVE FROM JANUARY 5, 1958, THE TOTAL OF HIS CIVILIAN ANNUAL SALARY PLUS HIS MILITARY RETIRED PAY HAS EXCEEDED THE $10,000 PER ANNUM LIMITATION PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT. HIS CLAIM FOR EXEMPTION FROM THE PROVISIONS OF SECTION 212 EFFECTIVE FROM MARCH 6, 1959, UNDER THE RULE OF THE TANNER CASE, 129 C.CLS. 792, BY REASON OF HIS ACCEPTANCE ON THAT DATE (MARCH 6, 1959) OF AN APPOINTMENT AS AN OFFICER IN THE RESERVE OF THE AIR FORCE, WAS DISALLOWED IN THE SETTLEMENT OF OCTOBER 27, 1959, ON THE GROUNDS THAT IN THE CIRCUMSTANCES SHOWN SUCH APPOINTMENT APPEARED TO BE OF SOMEWHAT DOUBTFUL VALIDITY, THEREBY RAISING A QUESTION AS TO WHETHER HE WAS A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES DURING THE PERIOD COVERED BY HIS CLAIM.

IN 35 COMP. GEN. 497, AND 36 COMP. GEN. 808 WE INTERPRETED THE TANNER DECISION AND RELATED CASES AS HAVING PROCEEDED ON THE BASIS THAT THE EXEMPTION FROM THE RESTRICTIONS OF SECTION 212 WHICH IS GRANTED TO "ANY MEMBER" OF THE RESERVE COMPONENTS BY SECTION 1 (B) ACT OF JULY 1, 1947, 61 STAT. 239, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506 (SEE 5 U.S.C. 30R (C) FOR PROVISIONS CURRENTLY IN EFFECT) ACCRUED TO ALL DE JURE MEMBERS OF THE RESERVE COMPONENTS. HENCE, WE CONCLUDED IN THOSE DECISIONS THAT WE WOULD FOLLOW THE COURT'S DECISION IN OTHER LIKE CASES INVOLVING RESERVE OFFICERS WHO HAD BEEN OR MIGHT BE GRANTED RETIRED PAY AND WHO HAD BEEN, DURING THE PERIOD ACTUALLY COVERED BY THE PAYMENT, DE JURE MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES.

HOWEVER, IN OUR SUBSEQUENT DECISION, B-134102, DATED DECEMBER 10, 1957, IT WAS RECOGNIZED THAT MERE MEMBERSHIP IN THE OFFICERS' RESERVE CORPS OR IN ANY OTHER RESERVE COMPONENT OF THE ARMED FORCES WAS NOT IN ITSELF A SUFFICIENT BASIS FOR EXEMPTION FROM THE PROVISIONS OF SECTION 212, AND, THAT TO BE ELIGIBLE FOR SUCH AN EXEMPTION, THE MEMBER MUST BE ENTITLED TO AND RECEIVING RETIRED PAY UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES. THIS LATTER VIEW FINDS SUPPORT IN THE CONCLUSIONS REACHED BY THE COURT OF CLAIMS IN THE DECISION OF MARCH 5, 1958, IN SARLES V. UNITED STATES, 141 C.CLS. 709, AND ALSO IN THE WARTHEN DECISION (PLAINTIFF NO. 5 IN THE CASE OF BOWMAN, ET AL. V. UNITED STATES) C.CLS. NO. 108-58, DECIDED JANUARY 14, 1959. IN THE SARLES CASE RESERVE MEMBERSHIP TERMINATED AFTER THE PLAINTIFF'S RIGHT TO RECEIVE RETIRED PAY HAD FULLY ACCRUED, WHEREAS WARTHEN'S MEMBERSHIP IN THE RESERVES HAD TERMINATED SEVERAL YEARS BEFORE HIS RIGHT AROSE TO RECEIVE ANY RETIRED PAY. IN THE LATTER (WARTHEN) CASE, THE COURT, REFERRING TO ITS PRIOR DECISION IN SARLES V. UNITED STATES, STATED THAT THE 1947 ACT, PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RECEIVE RETIRED PAY "BY REASON OF SERVICE IN A RESERVE COMPONENT.' THUS, UNLESS THE RIGHT TO THE RETIRED PAY BEING RECEIVED HAS IN FACT ACCRUED UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES, NO PROPER BASIS IS PRESENTED UPON WHICH TO BASE AN EXEMPTION FROM THE RESTRICTIONS OF SECTION 212, IRRESPECTIVE OF ANY CURRENT MEMBERSHIP IN A RESERVE COMPONENT OF THE ARMED FORCES DURING THE ACTUAL PERIOD OF CIVILIAN FEDERAL EMPLOYMENT. SEE 38 COMP. GEN. 839, AND 39 ID. 280.

THE RECORD IN THE PRESENT CASE CLEARLY ESTABLISHES THAT COLONEL KILLGORE'S RIGHT TO RECEIVE DISABILITY RETIRED PAY HAS ACCRUED TO HIM SOLELY AS THE RESULT OF HIS ACTIVE SERVICE AS A COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES. SUCH RIGHT IS ENTIRELY INDEPENDENT OF ANY STATUS HE MAY HAVE HELD OR WHICH HE NOW HOLDS IN A RESERVE COMPONENT OF THE ARMED FORCES. THUS, FOR PURPOSES OF SECTION 1 (B) OF THE 1947 ACT, AS AMENDED (OR THE PROVISIONS OF 5 U.S.C. 30R (C) NOW IN EFFECT), AND SECTION 212 OF THE ECONOMY ACT, HIS RETIRED PAY STATUS FALLS SQUARELY WITHIN THE SCOPE OF THE DECISION RENDERED ON NOVEMBER 7, 1956, IN THE LEONARD CASE, 136 C.CLS. 686. ALSO, SEE THE MORE RECENT DECISION OF JANUARY 20, 1960, IN PALMER V. UNITED STATES, C.CLS. NO. 356-58, WHEREIN EXEMPTION FROM THE PROVISIONS OF SECTION 212 WAS DENIED FOR THE REASON THAT THE PLAINTIFF, A FORMER COMMISSIONED OFFICER IN THE ARMY OF THE UNITED STATES (QUOTING FROM THE PALMER DECISION) "* * * HAD NO STATUS IN THE RESERVE COMPONENTS OF THE ARMED FORCES AND DID NOT RECEIVE HIS RETIREMENT PAY FROM LAWS RELATING THERETO.' HENCE, COLONEL KILLGORE'S APPOINTMENT IN THE RESERVE OF THE AIR FORCE (ACCEPTED BY HIM ON MARCH 6, 1959), DOES NOT FURNISH ANY PROPER BASIS UPON WHICH HE MAY BASE AN EXEMPTION FROM THE RESTRICTIONS IMPOSED BY SECTION 212 WITH RESPECT TO ANY PERIOD THAT HE ENGAGES IN FEDERAL CIVILIAN EMPLOYMENT.

THEREFORE, THE ACTION TAKEN IN THE SETTLEMENT OF OCTOBER 27, 1959, DISALLOWING COLONEL KILLGORE'S CLAIM IS SUSTAINED.