B-149424, AUG. 10, 1962

B-149424: Aug 10, 1962

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF MAY 15. PROTESTING THE STOPPAGE OF YOUR DISABILITY RETIRED PAY BY THE ARMY TO LIQUIDATE THE BALANCE OF YOUR INDEBTEDNESS ON ACCOUNT OF PAYMENT OF DISABILITY SEVERANCE PAY AND CONTENDING THAT THE PERIOD YOU WERE ON THE TEMPORARY DISABILITY RETIRED LIST SHOULD HAVE BEEN INCLUDED IN COMPUTING YOUR PERMANENT DISABILITY RETIRED PAY. IT APPEARS THAT FOLLOWING A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOU WERE PERMANENTLY UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY OF LESS THAN 30 PERCENT. YOUR NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND YOU WERE HONORABLY DISCHARGED FROM THE ARMY EFFECTIVE MAY 27. INCIDENT TO THAT DISCHARGE YOU WERE PAID DISABILITY SEVERANCE PAY IN THE AMOUNT OF $15.

B-149424, AUG. 10, 1962

TO MAJOR EDWARD H. COLLINS, JR., RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1962, PROTESTING THE STOPPAGE OF YOUR DISABILITY RETIRED PAY BY THE ARMY TO LIQUIDATE THE BALANCE OF YOUR INDEBTEDNESS ON ACCOUNT OF PAYMENT OF DISABILITY SEVERANCE PAY AND CONTENDING THAT THE PERIOD YOU WERE ON THE TEMPORARY DISABILITY RETIRED LIST SHOULD HAVE BEEN INCLUDED IN COMPUTING YOUR PERMANENT DISABILITY RETIRED PAY.

IT APPEARS THAT FOLLOWING A DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOU WERE PERMANENTLY UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY OF LESS THAN 30 PERCENT, YOUR NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND YOU WERE HONORABLY DISCHARGED FROM THE ARMY EFFECTIVE MAY 27, 1960. INCIDENT TO THAT DISCHARGE YOU WERE PAID DISABILITY SEVERANCE PAY IN THE AMOUNT OF $15,120.

YOUR MILITARY RECORDS WERE CORRECTED IN AUGUST 1961 UNDER AUTHORITY OF 10 U.S.C. 1552 TO SHOW THAT YOUR NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ON MARCH 1, 1960, AND THAT YOU WERE PERMANENTLY RETIRED FOR DISABILITY EFFECTIVE MARCH 2, 1960, IN THE GRADE OF MAJOR WITH A DISABILITY RATING OF 50 PERCENT UNDER 10 U.S.C. 1201 AND 1372. AS A RESULT OF THAT ACTION, YOU BECAME ENTITLED TO PERMANENT DISABILITY RETIRED PAY FOR THE PERIOD BEGINNING MARCH 2, 1960, COMPUTED AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A MAJOR WITH OVER 14 YEARS OF SERVICE FOR BASIC PAY PURPOSES. IN LINE WITH OUR DECISION OF SEPTEMBER 23, 1959, B- 140388, 39 COMP. GEN. 213, NO CREDIT FOR BASIC PAY PURPOSES WAS GIVEN FOR THE TIME SPENT BY YOU ON THE TEMPORARY DISABILITY RETIRED LIST. THE RETIRED PAY DETERMINED TO BE DUE FOR THE PERIOD THROUGH SEPTEMBER 30, 1961, WAS WITHHELD TO PARTIALLY REIMBURSE THE GOVERNMENT FOR THE SEVERANCE PAY PAID TO YOU.

COMMENCING OCTOBER 1, 1961, ONLY TWO-THIRDS OF YOUR MONTHLY DISABILITY RETIRED PAY WAS WITHHELD FOR REIMBURSEMENT PURPOSES, SUCH ACTION APPARENTLY BEING REGARDED AS PROPER UNDER THE ACT OF JULY 15, 1954, CH. 509, 68 STAT. 482, 5 U.S.C. 468. EFFECTIVE MAY 1, 1962, AND ON THE BASIS OF OUR DECISION OF MARCH 19, 1962, B-148128, 41 COMP. GEN. - , IN A CASE SIMILAR TO YOURS, THE ARMY DISCONTINUED THE PAYMENT OF ONE-THIRD OF THE MONTHLY DISABILITY RETIRED PAY TO YOU AND APPARENTLY INTENDS TO CONTINUE SUCH ACTION UNTIL THE TOTAL AMOUNT WITHHELD EQUALS $15,120.

YOU MAINTAIN THAT THE PRESENT ACTION OF THE ARMY IN WITHHOLDING YOUR FULL RETIRED PAY ON THE AUTHORITY OF OUR DECISION OF MARCH 19, 1962, IS ILLEGAL FOR THE REASONS THAT THE FACTS AND LAW IN YOUR CASE ARE DIFFERENT FROM THOSE IN THE CASE COVERED BY THAT DECISION; AND THAT SINCE IT WAS RENDERED IN 1962, IT CANNOT SERVE TO DISTURB THE PRIOR ACTION OF THE ARMY, TAKEN IN 1961 BASED ON THE 1954 ACT, IN WITHHOLDING ONLY TWO-THIRDS OF YOUR MONTHLY RETIRED PAY. YOU FURTHER CONTEND THAT SINCE OUR DECISION INVOLVED LAWS AFFECTING INDIVIDUALS HAVING STATUS UNDER THE VETERANS ADMINISTRATION, IT CANNOT BE EXTENDED TO APPLY TO INDIVIDUALS SUCH AS YOU WHO HAVE A SEPARATE AND DISTINCT "FEDERAL OFFICIAL STATUS" AND ARE GOVERNED BY OTHER LAWS.

THE PROVISIONS OF LAW ON WHICH OUR DECISION OF MARCH 19, 1962, WAS BASED, CONTAINED IN 10 U.S. CODE, PROVIDE IN PERTINENT PART AS FOLLOWS:

SECTION 1212---

"/C) THE AMOUNT OF DISABILITY SEVERANCE PAY RECEIVED UNDER THIS SECTION SHALL BE DEDUCTED FROM ANY COMPENSATION FOR THE SAME DISABILITY TO WHICH THE FORMER MEMBER OF THE ARMED FORCES OR HIS DEPENDENTS BECOME ENTITLED UNDER ANY LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION. * * *"

SECTION 1213---

"UNLESS A PERSON WHO HAS RECEIVED DISABILITY SEVERANCE PAY AGAIN BECOMES A MEMBER OF AN ARMED FORCE, THE COAST AND GEODETIC SURVEY, OR THE PUBLIC HEALTH SERVICE, HE IS NOT ENTITLED TO ANY PAYMENT FROM THE ARMED FORCE FROM WHICH HE WAS SEPARATED FOR, OR ARISING OUT OF, HIS SERVICE BEFORE SEPARATION, UNDER ANY LAW ADMINISTERED BY ONE OF THOSE SERVICES OR FOR IT BY ANOTHER OF THOSE SERVICES. * * *"

IN THE DECISION OF MARCH 19, 1962, COPY ATTACHED, WE HELD THAT UNDER THE QUOTED PROVISIONS OF LAW THE PAYMENT OF DISABILITY SEVERANCE PAY IS INCOMPATIBLE WITH THE RECEIPT OF OTHER BENEFITS ARISING FROM THE SAME CIRCUMSTANCES GIVING RISE TO THE PAYMENT OF SEVERANCE PAY AND, HENCE, THAT SUCH BENEFITS COULD NOT BE PAID UNTIL COLLECTION OF THE DISABILITY SEVERANCE PAYMENT. THAT CASE INVOLVED A MEMBER WHO LIKE YOU WAS PAID DISABILITY SEVERANCE PAY, BUT BY VIRTUE OF THE CORRECTION OF HIS MILITARY RECORDS SUBSEQUENT TO SUCH PAYMENT, HE BECAME ENTITLED TO PERMANENT DISABILITY RETIRED PAY. WHILE THE VETERANS ADMINISTRATION WAS WITHHOLDING THE MEMBER'S DISABILITY COMPENSATION PAYMENTS--- AWARDED BY THAT AGENCY IN THAT CASE--- UNDER AUTHORITY OF 10 U.S.C. 1212 (C), THE CONCLUSION THERE REACHED WAS NOT CONCERNED WITH THAT MATTER BUT RELATED SOLELY TO THE WITHHOLDING OF THE MONTHLY PAYMENTS OF DISABILITY RETIRED PAY WHICH BECAME PAYABLE AS A RESULT OF THE CORRECTION BOARD ACTION IN THAT CASE.

ALTHOUGH THE ABOVE-QUOTED PROVISIONS OF LAW DO NOT APPLY IN EXPRESS TERMS TO THE SITUATION HERE INVOLVED, THEY EVIDENCE AN INTENT THAT MORE THAN ONE SET OF BENEFITS SHALL NOT BE PAID AS A RESULT OF THE SAME DISABILITY SITUATION. SINCE THE CORRECTION BOARD ACTION IN THIS CASE ENTITLED YOU TO DISABILITY RETIRED PAY RETROACTIVE TO MARCH 2, 1960, AND YOU ARE RETAINING THE $15,120 PAID YOU AS SEVERANCE PAY, IT APPEARS PROPER TO REGARD THAT PAYMENT AS BEING IN THE NATURE OF AN ADVANCE PAYMENT OF RETIRED PAY, THUS PERMITTING THE PAYMENT OF NONE OF THE MONTHLY PAYMENTS CURRENTLY ACCRUING UNTIL THEY EQUAL THE ADVANCE PAYMENT WHICH YOU RECEIVED MORE THAN TWO YEARS AGO. AS FAR AS THE AMOUNT OF MONEY PAID TO YOU IS CONCERNED, IT APPEARS THAT YOU ARE IN A MORE ADVANTAGEOUS POSITION THAN WOULD HAVE EXISTED IF YOU HAD BEEN RETIRED ORIGINALLY INSTEAD OF BEING DISCHARGED WITH SEVERANCE PAY.

THE ACT OF JULY 15, 1954, UNDER WHICH IT APPEARS THAT THE ARMY WITHHELD ONLY TWO-THIRDS OF THE MONTHLY PAYMENTS OF YOUR DISABILITY RETIRED PAY, AND WHICH PROVIDES FOR INSTALLMENT DEDUCTIONS FROM THE PAY OR RETIRED PAY OF A DEBTOR, RELATES ONLY TO "ERRONEOUS" PAYMENTS. THE DISABILITY SEVERANCE PAYMENT REPRESENTED A PROPER PAYMENT AT THE TIME IT WAS PAID TO YOU AND IN THE CIRCUMSTANCES HERE INVOLVED IT IS BELIEVED THAT YOUR RIGHTS ARE NOT GOVERNED BY THE PROVISIONS OF THAT ACT.

CONCERNING YOUR CONTENTION THAT THE TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST SHOULD BE CREDITED FOR THE PURPOSE OF COMPUTING THE RATE OF YOUR MONTHLY DISABILITY RETIRED PAY, SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 808, 37 U.S.C. 233 (B), PROVIDES THAT:

"MEMBERS OF THE UNIFORMED SERVICES SHALL ACCRUE ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES, FOR PERIODS WHILE ON A TEMPORARY DISABILITY RETIRED LIST, * * * PROVIDED, THAT, * * *, THE SERVICE CREDIT AUTHORIZED IN THIS SECTION SHALL NOT BE INCLUDED TO INCREASE RETIRED PAY, DISABILITY RETIREMENT PAY, RETIREMENT PAY, OR RETAINER PAY WHILE ON A RETIRED LIST, ON A TEMPORARY DISABILITY RETIRED LIST, IN A RETIRED STATUS, OR IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, * * *.'

UNDER SUCH PROVISIONS OF LAW THERE IS NO AUTHORITY FOR CREDITING YOU WITH TIME ON THE TEMPORARY DISABILITY RETIRED LIST SINCE YOU WERE GRANTED PERMANENT DISABILITY RETIRED PAY EFFECTIVE IMMEDIATELY UPON THE REMOVAL OF YOUR NAME FROM THAT LIST AND THE COUNTING OF SUCH TIME THUS WOULD HAVE THE EFFECT OF INCREASING THE RETIRED PAY TO WHICH YOU BECAME ENTITLED WHEN YOUR NAME WAS PLACED ON SUCH LIST. SEE OUR DECISION OF NOVEMBER 28, 1956, B-129541, 36 COMP. GEN. 431, IN WHICH WE STATED THAT THE PROVISO IN SECTION 202 (B) OF THE CAREER COMPENSATION ACT OF 1949 REFERS TO MEMBERS WHO HAVE BEEN RETIRED AND ARE IN RECEIPT OF RETIRED OR RETIREMENT PAY AND THUS HAVE A PAY TO WHICH THE PROHIBITION AGAINST AN "INCREASE" MAY APPLY. SEE ALSO 39 COMP. GEN. 213.