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B-143960, OCT. 17, 1960

B-143960 Oct 17, 1960
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RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20. WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY WHICH HAS BEEN AND IS BEING WITHHELD FROM PAYMENT TO YOU BY VIRTUE OF YOUR FEDERAL EMPLOYMENT EFFECTIVE APRIL 19. OUR FILE SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT. WHEN YOU WERE RELIEVED FROM SUCH DUTY AS CAPTAIN BY REASON OF PHYSICAL DISABILITY AND CERTIFIED FOR PAYMENT OF RETIRED PAY EFFECTIVE JANUARY 5. YOU WERE APPOINTED FIRST LIEUTENANT IN THE OFFICERS' RESERVE CORPS (AIR CORPS RESERVE) ON MARCH 1. HELD SUCH COMMISSION IN THE AIR FORCE RESERVE UNTIL IT WAS TERMINATED ON APRIL 1. YOU WERE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY ON APRIL 19. INASMUCH AS THE RATE OF PAY ATTACHED TO YOUR POSITION WAS $8.

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B-143960, OCT. 17, 1960

TO CAPTAIN LORAN W. MACY, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20, 1960, AND ENCLOSURE, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED MARCH 31, 1960, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY WHICH HAS BEEN AND IS BEING WITHHELD FROM PAYMENT TO YOU BY VIRTUE OF YOUR FEDERAL EMPLOYMENT EFFECTIVE APRIL 19, 1959.

OUR FILE SHOWS THAT YOU WERE APPOINTED A SECOND LIEUTENANT, AIR CORPS, ARMY OF THE UNITED STATES, ON JULY 25, 1943, AND SERVED ON ACTIVE DUTY UNTIL JANUARY 4, 1947, WHEN YOU WERE RELIEVED FROM SUCH DUTY AS CAPTAIN BY REASON OF PHYSICAL DISABILITY AND CERTIFIED FOR PAYMENT OF RETIRED PAY EFFECTIVE JANUARY 5, 1947, UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456 (1946 ED.). PRIOR TO YOUR RELIEF FROM ACTIVE DUTY, YOU WERE APPOINTED FIRST LIEUTENANT IN THE OFFICERS' RESERVE CORPS (AIR CORPS RESERVE) ON MARCH 1, 1946, AND HELD SUCH COMMISSION IN THE AIR FORCE RESERVE UNTIL IT WAS TERMINATED ON APRIL 1, 1953. YOU ACCEPTED APPOINTMENT AS CAPTAIN, AIR FORCE RESERVE, ON MARCH 23, 1959.

YOU WERE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY ON APRIL 19, 1959, AND INASMUCH AS THE RATE OF PAY ATTACHED TO YOUR POSITION WAS $8,330 PER ANNUM, WHICH WHEN ADDED TO YOUR DISABILITY RETIRED PAY EXCEEDED $10,000, THERE WAS FOR CONSIDERATION THE QUESTION OF THE APPLICABILITY OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A. THAT SECTION PROVIDES, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT AFTER JUNE 30, 1932, NO PERSON HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION SHALL BE ENTITLED TO RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM HIS CIVILIAN OFFICE OR POSITION MAKES THE TOTAL RATE FROM BOTH SERVICES MORE THAN $3,000. THE $3,000 LIMITATION FIXED IN THAT ACT WAS INCREASED TO $10,000 BY THE ACT OF AUGUST 4, 1955, 69 STAT. 497, EFFECTIVE AUGUST 4, 1955. UPON A DETERMINATION THAT YOU WERE NOT EXEMPT FROM THE RESTRICTION CONTAINED IN SECTION 212, THE AIR FORCE WITHHELD A PORTION OF YOUR RETIRED PAY IN ACCORDANCE WITH THE PROVISIONS OF THAT SECTION. YOU FILED FOR REFUND OF THE AMOUNTS WITHHELD ON THE BASIS THAT YOU HELD A RESERVE COMMISSION BY REASON OF YOUR REAPPOINTMENT IN THE AIR FORCE RESERVE AND, THEREFORE, WERE EXEMPT FROM THE $10,000 LIMITATION IMPOSED BY SECTION 212. OUR CLAIMS DIVISION DENIED YOUR CLAIM ON THE GROUND THAT YOUR REAPPOINTMENT IN THE AIR FORCE RESERVE WAS OF DOUBTFUL LEGALITY SINCE YOU HAD BEEN RETIRED FOR PERMANENT PHYSICAL DISABILITY AND, HENCE, DID NOT POSSESS THE REQUISITE PHYSICAL QUALIFICATIONS.

YOU CONTEND IN YOUR LETTER OF AUGUST 20, 1960, THAT YOUR ENTITLEMENT TO THE FULL RETIRED PAY IS NOT DEPENDENT UPON THE "LEGALITY" OF YOUR INDEFINITE APPOINTMENT IN THE AIR FORCE RESERVE IN 1959, BUT UPON YOUR APPOINTMENT AS FIRST LIEUTENANT, AIR CORPS RESERVE, ON MARCH 1, 1946. THIS CONNECTION, YOU HAVE ADVISED THAT AT THE TIME OF YOUR APPOINTMENT AS FIRST LIEUTENANT, YOU WERE FOUND TO BE PHYSICALLY QUALIFIED FOR GENERAL MILITARY DUTY AND, IN SUPPORT OF SUCH FACT, YOU HAVE FURNISHED A COPY OF SPECIAL ORDERS NO. 41, HEADQUARTERS, SANTA ANA ARMY AIR BASE, OF FEBRUARY 18, 1946, TRANSFERRING YOU TO THE 556TH AAFBU, LBAAF, LONG BEACH, CALIFORNIA, FOR ASSIGNMENT AND DUTY. ALSO, YOU POINT OUT THAT THE COURT OF CLAIMS HELD IN CASE "NO. 108-58, DECIDED JANUARY 14, 1959" THAT IT IS NOT REQUIRED THAT A PERSON CONTINUE TO HOLD A COMMISSION IN THE RESERVE IN ORDER TO RECEIVE THE BENEFIT OF THE ACT OF JULY 1, 1947, 10 U.S.C. 371 (B) (1952 ED.), QUOTED IN YOUR LETTER AS A BASIS FOR ALLOWING YOUR CLAIM.

THE CASE TO WHICH YOU REFER IN BOWMAN, ET AL. V. UNITED STATES, THE OPINION HAVING BEEN RENDERED WITH RESPECT TO PLAINTIFF WARTHEN. THE OFFICER INVOLVED IN THAT CASE HAD HELD A COMMISSION IN THE OFFICERS' RESERVE CORPS UNTIL RESIGNATION ON OCTOBER 1, 1943, AND WAS RETIRED EFFECTIVE MAY 1, 1952, UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087. THE COURT HELD THAT THE ACT OF JULY 1, 1947, PROPERLY INTERPRETED, COVERS ANY PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY "BY REASON OF SERVICES IN A RESERVE COMPONENT.' IN DECISION OF MAY 1, 1959, B-135719, 38 COMP. GEN. 741, WE STATED THAT IN SIMILAR CASES WE WOULD FOLLOW THE RULE ESTABLISHED IN THE ABOVE CITED CASE AS WELL AS THAT ESTABLISHED IN THE CASE OF SARLES V. UNITED STATES, 141 CT.CL. 709, WHICH INVOLVED A NATIONAL GUARD OFFICER WHO WAS HONORABLY DISCHARGED FROM HIS NATIONAL GUARD COMMISSION ON JULY 27, 1951, AND RETIRED EFFECTIVE JANUARY 1, 1956, UNDER THE PROVISIONS OF TITLE III.

SINCE YOU WERE ON ACTIVE DUTY AS AN OFFICER OF THE ARMY OF THE UNITED STATES RATHER THAN AS A RESERVE OFFICER AND SINCE YOU WERE RETIRED ON ACCOUNT OF PHYSICAL DISABILITY PURSUANT TO THE ACT OF APRIL 3, 1939, IT IS DOUBTFUL THAT THE WARTHEN CASE IS APPLICABLE TO YOU. SEE THE RULING IN THE CASE OF LEONARD V. UNITED STATES, 136 CT.CL. 686, CERTIORARI DENIED, 353 U.S. 976, INVOLVING AN OFFICER WHO, LIKE YOU, HELD A COMMISSION IN THE ARMY OF THE UNITED STATES AND WAS RETIRED ON ACCOUNT OF PHYSICAL DISABILITY UNDER THE ACT OF APRIL 3, 1939. THE COURT IN DENYING THE CLAIM OF THE PLAINTIFF HELD, AMONG OTHER THINGS, THAT WHEN HE WAS DISCHARGED FOR PHYSICAL DISABILITY, HE WAS NOT RETIRED NOR RELEASED TO INACTIVE DUTY BUT DISCHARGES FROM HIS COMMISSION AND FULLY RELEASED FROM THE ARMED SERVICES.

IT IS NOT NECESSARY AT THIS TIME TO RESOLVE THAT DOUBT, HOWEVER, SINCE THE COURT OF CLAIMS IN EFFECT CONCLUDED IN THE CASE OF PALMER V. UNITED STATES, CT.CLS.NO. 356-58, DECIDED JANUARY 20, 1960, THAT THE ACT OF APRIL 3, 1939, UNDER WHICH YOU RECEIVE YOUR RETIRED PAY, WAS NOT A LAW RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES WITHIN THE MEANING OF THE ACT OF JULY 1, 1947. THERE IS ENCLOSED A COPY OF OUR DECISION, B-123382 OF AUGUST 26, 1960, 40 COMP. GEN. 135, IN WHICH THE POSITION OF THIS OFFICE CONCERNING THE PALMER CASE IS STATED. ON THE BASIS OF THAT DECISION THE SETTLEMENT OF MARCH 31, 1960, IS SUSTAINED.

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