B-151272, AUG. 9, 1963, 43 COMP. GEN. 149

B-151272, AUG. 9, 1963, 43 COMP. GEN. 149

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS ADVANCED ON RETIRED LIST TO COMMISSIONED RANK - MAXIMUM LIMITATION. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS ADVANCED ON RETIRED LIST TO COMMISSIONED RANK - MAXIMUM LIMITATION. COMPENSATION - DOUBLE CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ENLISTED MEMBERS ADVANCED ON RETIRED LIST TO COMMISSIONED RANK - MAXIMUM LIMITATION A FLEET MARINE CORPS RESERVE ENLISTED MEMBER WHO WAS IN RECEIPT OF RETAINER PAY AND COMPENSATION AS A CIVILIAN EMPLOYEE WHEN HE WAS TRANSFERRED TO THE RETIRED LIST AND ADVANCED TO AN OFFICER GRADE UNDER 10 U.S.C. 6151 IS NOT REQUIRED TO HAVE THE RETAINER PAY CONSIDERED "RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" OR AS "RETIRED PAY" AS USED IN THE DOUBLE COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A; THEREFORE, SINCE THE RETAINER PAY RECEIVED BY THE MEMBER DURING THE CALENDAR YEAR IS NOT FOR INCLUSION IN APPLYING THE DOUBLE COMPENSATION LIMITATION AND SINCE THE MEMBER'S RETIRED PAY AND CIVILIAN COMPENSATION IS LESS THAN $10,000 FOR THE CALENDAR YEAR THE RETIRED PAY WITHHELD MAY BE PAID. IN THE COMPUTATION OF THE DOUBLE COMPENSATION LIMITATION OF $10,000 IN SECTION 212 (B) OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, ON A CALENDAR YEAR BASIS, THE FEDERAL CIVILIAN SALARY EARNED BY A RETIRED MEMBER OF THE UNIFORMED SERVICES AFTER HE LOSES HIS RETIRED STATUS AND RETIRED PAY THROUGH DISCHARGE FROM THE TEMPORARY DISABILITY RETIRED LIST, BUT BEFORE THE END OF THE CALENDAR YEAR OF DISCHARGE MUST BE INCLUDED. THE DETERMINATION AS TO WHETHER A RETIRED OFFICER OF THE UNIFORMED SERVICES WHO IS IN RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION HAS BEEN PAID MORE OR LESS THAN THE MAXIMUM LIMITATION OF $10,000 IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, IS MADE ANNUALLY AT THE END OF THE CALENDAR YEAR SO THAT IN READJUSTING A MEMBER'S PAY FOR THE CALENDAR YEAR 1955 WHEN SECTION 212 OF THE 1932 ACT WAS AMENDED TO INCREASE THE MAXIMUM FROM $3,000 TO $10,000, THE $10,000 LIMITATION SHOULD BE USED FOR THE CALENDAR YEAR.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 9, 1963:

BY FIRST INDORSEMENT DATED APRIL 5, 1963, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF MARCH 26, 1963, REQUESTING A DECISION WHETHER THE RETAINER PAY PAID FIRST LIEUTENANT ROBERT J. THROWER, 012441, UNITED STATES MARINE CORPS, RETIRED, AS A MEMBER OF THE FLEET MARINE CORPS RESERVE, FOR THE PERIOD JANUARY 1, 1962, THROUGH AUGUST 31, 1962, MAY BE EXCLUDED FROM THE COMPUTATION OF THE AMOUNT OF RETIRED PAY RECEIVED DURING THE CALENDAR YEAR 1962 FOR THE PURPOSE OF APPLYING THE $10,000 LIMITATION PROVISION OF SECTION 212 (B) OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (B). THIS REQUEST FOR DECISION WAS ASSIGNED NO. DO-MC-702 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, READS AS FOLLOWS (QUOTING FROM 5 U.S.C. 59A):

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000 * * *.

THE PERTINENT FACTS IN MR. THROWER'S CASE, AS DISCLOSED IN YOUR LETTER, ARE AS FOLLOWS. THE MEMBER WAS A MASTER SERGEANT (E-7) IN THE FLEET MARINE CORPS RESERVE FROM FEBRUARY 28, 1954, THROUGH AUGUST 31, 1962. SEPTEMBER 1, 1962, HE WAS TRANSFERRED TO THE RETIRED LIST OF ENLISTED MEMBERS OF THE UNITED STATES MARINE CORPS UNDER 10 U.S.C. 6331 AND WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT UNDER 10 U.S.C. 6151. HE WAS EMPLOYED BY THE MARINE CORPS SUPPLY CENTER, ALBANY, GEORGIA, AS A FEDERAL CIVILIAN EMPLOYEE AT AN ANNUAL SALARY OF $7,820 FROM JANUARY 1, 1962, THROUGH OCTOBER 13, 1962, AND AT AN ANNUAL SALARY OF $8,575 FROM OCTOBER 14, 1962, THROUGH DECEMBER 31, 1962. THE TOTAL AMOUNT OF CIVILIAN SALARY EARNED DURING THE CALENDAR YEAR 1962 AMOUNTED TO $7,986.56. THE RETAINER PAY PAID HIM AS MASTER SERGEANT (E-7), AT $169.49 PER MONTH, AMOUNTED TO $1,355.92. THE RETIRED PAY PAID HIM AS FIRST LIEUTENANT AT $219.10 PER MONTH, AMOUNTED TO $876.40. IF THE RETAINER PAY MAY BE EXCLUDED, HE WOULD BE ENTITLED TO A REFUND OF THE AMOUNT OF RETIRED PAY WITHHELD FROM HIM FOR THE CALENDAR YEAR 1962, SINCE THE CIVILIAN SALARY AND RETIRED PAY ($7,986.56 PLUS $876.40) AMOUNTED TO LESS THAN $10,000.

IT IS CLEAR THAT MR. THROWER CONTINUED TO BE AN ENLISTED MAN UNTIL HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF FIRST LIEUTENANT ON SEPTEMBER 1, 1962. COMPARE B-140856, DECEMBER 16, 1959. IN SUCH CIRCUMSTANCES, WE FIND NO BASIS FOR A CONCLUSION THAT THE RETAINER PAY RECEIVED BY HIM IN THAT STATUS WAS "RETIRED PAY * * * FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" OR AS "RETIRED PAY" AS THAT TERM IS USED IN SECTION 212 (B) OF THE ECONOMY ACT.

THE CASES OF SCHUYLER V. UNITED STATES, 148 CT.CL. 479 (1960), AND DELLINGER V. UNITED STATES, CT.CL. NO. 83-61, DECIDED MAY 9, 1962, ESTABLISHED THE RULE THAT THE APPROPRIATE PERIOD OF TIME INTENDED TO BE USED FOR THE PURPOSE OF APPLYING THE RESTRICTIONS OF SECTION 212 (B), IS A CALENDAR YEAR. IN OUR DECISION DATED AUGUST 2, 1962, B-149203, 42 COMP. GEN. 71, WE STATED THAT WE HAD DECIDED TO ACCEPT AND FOLLOW THE COURT'S DECISIONS IN THE SCHUYLER AND DELLINGER CASES AS A PRECEDENT FOR RETROACTIVE PAYMENT OF RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) IN THOSE CASES WHERE THE RETIRED OFFICER IS DETERMINED TO BE ENTITLED TO THE AMOUNT OF RETIRED PAY WITHHELD FROM HIM DURING A CALENDAR YEAR BECAUSE THE TOTAL AMOUNT RECEIVED FOR THAT YEAR AS COMPENSATION AS A GOVERNMENT CIVILIAN EMPLOYEE "AND RETIRED PAY AS AN OFFICER" IS LESS THAN $10,000. SINCE NO RETIRED PAY AS AN OFFICER WAS RECEIVED PRIOR TO SEPTEMBER 1, 1962, THE PROPOSED PAYMENT TO LIEUTENANT THROWER OF THE AMOUNT OF RETIRED PAY WITHHELD FROM HIM DURING THE CALENDAR YEAR 1962 IS AUTHORIZED, IF OTHERWISE CORRECT.

IT IS UNDERSTOOD THAT THE MARINE CORPS IS IN THE PROCESS OF DEVELOPING A NUMBER OF OTHER CASES, WHICH WILL INVOLVE AN APPLICATION OF THE RULE OF THE SCHUYLER AND DELLINGER CASES. AS A GUIDE IN HANDLING SUCH CASES YOU REQUEST ANSWERS TO THE FOLLOWING QUESTIONS:

(A) SHOULD FEDERAL CIVILIAN SALARY EARNED AFTER LOSS OF THE MEMBER'S RETIRED STATUS AND RETIRED PAY THROUGH DISCHARGE FROM THE TEMPORARY DISABILITY RETIRED LIST, BUT BEFORE THE END OF THE CALENDAR YEAR OF DISCHARGE, BE INCLUDED IN THE COMPUTATION OF "CIVILIAN PAY" FOR THE PURPOSE OF 5 U.S.C. 59A (B/?

(B) THE $3,000 LIMITATION CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF 30 JUNE 1932 WAS INCREASED TO $10,000 EFFECTIVE 4 AUGUST 1955 BY THE ACT OF 4 AUGUST 1955 (69 STAT. 497). IN DETERMINING THE AMOUNT OF A REFUND OF WITHHELD RETIRED PAY FOR 1955 UNDER 5 U.S.C. 59A (B), SHOULD THE COMPUTATION BE BASED ON $5,858.83 FOR THE ENTIRE YEAR ($3,000 PRORATED FOR 7 MONTHS AND 3 DAYS, $1,775, PLUS $10,000 PRORATED FOR 4 MONTHS AND 27 DAYS, $4,083.33), OR SHOULD IT BE BASED ON EACH PERIOD SEPARATELY, $1,775 FOR THE PERIOD 1 JANUARY 1955 THROUGH 3 AUGUST 1955 AND $4,083.33 ($833.3333 TIMES 4 AND $27.7777 TIMES 27) FOR THE PERIOD 4 AUGUST 1955 THROUGH 31 DECEMBER 1955? FOR EXAMPLE, IF A RETIRED COMMISSIONED OFFICER RECEIVED FEDERAL CIVILIAN SALARY FOR ONLY JANUARY 1955 AND DECEMBER 1955, SHOULD THE REFUND OF RETIRED PAY WITHHELD IN JANUARY BE BASED ON $1,775 AND THAT IN DECEMBER ON $4,083.33, OR MUST THE COMPUTATION OF THE REFUND FOR BOTH MONTHS BE BASED ON THE COMBINED TOTAL OF $5,858.33?

THE ECONOMY ACT, AS AMENDED, DOES NOT EXPRESSLY PROVIDE FOR THE EXCLUSION OF FEDERAL CIVILIAN SALARY EARNED SUBSEQUENT TO THE MEMBER'S LOSS OF TEMPORARY DISABILITY RETIRED PAY BUT BEFORE THE END OF THE CALENDAR YEAR OF DISCHARGE AND NO EVIDENCE OF SUCH INTENT HAS BEEN FOUND IN ITS LEGISLATIVE HISTORY. IN VIEW OF THE CALENDAR YEAR RULE OF THE SCHUYLER AND DELLINGER CASES, QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.

THE ACT OF AUGUST 4, 1955, CH. 561, 69 STAT. 497, AMENDED SECTION 212 OF THE 1932 ACT, AS AMENDED, 5 U.S.C. 59A, TO INCREASE THE CEILING ON RETIRED PAY PLUS CIVILIAN PAY AUTHORIZED TO BE ACCRUED AND EARNED IN ANY ONE YEAR FROM $3,000 TO $10,000. IN VIEW OF THE DECISIONS BY THE COURT OF CLAIMS IN THE SCHUYLER AND DELLINGER CASES, THE AMOUNT OF ANY EXCESS COLLECTED IS DETERMINED ON THE BASIS OF THE TOTAL AMOUNT EARNED AND ACCRUED AS CIVILIAN COMPENSATION AND RETIRED PAY DURING A CALENDAR YEAR. THE DETERMINATION AS TO WHETHER A RETIRED OFFICER HAS BEEN PAID MORE OR LESS THAN THE AMOUNT TO WHICH HE IS ENTITLED IS MADE ANNUALLY AT THE END OF EACH CALENDAR YEAR. IN SUCH CIRCUMSTANCES, IT IS BELIEVED PROPER TO VIEW THE LIMITATION IN EFFECT AT THAT TIME AS GOVERNING HIS RIGHTS FOR THAT YEAR. HENCE, THE $10,000 LIMITATION IS APPLICABLE FOR THE CALENDAR YEAR 1955. QUESTION (B) IS ANSWERED ACCORDINGLY.