B-151425, JUN. 19, 1963

B-151425, JUN. 19, 1963

TO MAJOR J. J. VANYA, USAF, COMPTROLLER, FINANCE AND ACCOUNTING DIVISION, HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER:

UNDER DATE OF APRIL 30, 1963, YOUR LETTER OF APRIL 10, 1963, WAS FORWARDED TO THIS OFFICE (AS DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE, AIR FORCE REQUEST NO. DO-AF-703), WITH ENCLOSED VOUCHER COVERING RETIRED PAY WITHHELD FROM COLONEL DALE F. JUSTICE, SR. (RETIRED), WHILE HE WAS FEDERALLY EMPLOYED. THE VOUCHER IS IN THE AMOUNT OF $3,537.23 WHICH WAS WITHHELD FOR THE PERIOD FROM OCTOBER 1, 1962, THROUGH MARCH 31, 1963, IN ORDER TO KEEP THE COMBINED RATE OF RETIRED PAY AND CIVILIAN SALARY IN AN AMOUNT NOT TO EXCEED THE $10,000 LIMITATION RATE PROVIDED BY SECTION 212 OF THE ECONOMY ACT OF 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. IT IS STATED THAT COLONEL JUSTICE WAS ALSO FEDERALLY EMPLOYED FROM MARCH 6, 1961, TO SEPTEMBER 30, 1962, AND THAT AS A RESULT HE WAS OVERPAID RETIRED PAY IN THE AMOUNT OF $10,042.39. IT IS FURTHER STATED THAT ON THE BASIS OF OUR DECISION, B-136459, DATED AUGUST 14, 1962, COLLECTION ACTION WILL BE HELD IN ABEYANCE ON THE ABOVE OVERPAYMENT PENDING ENACTMENT OF CORRECTIVE LEGISLATION BY THE PRESENT CONGRESS, AND THAT IN VIEW OF THE RULING SET FORTH IN THAT DECISION DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT FOR THE PERIOD SUBSEQUENT TO SEPTEMBER 30, 1962.

COLONEL JUSTICE CONTENDS THAT HIS RESERVE STATUS OPERATES TO EXEMPT HIM FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT. IT IS STATED THAT HE WAS, AT ALL TIMES DURING HIS MILITARY CAREER, IN POSSESSION OF A RESERVE COMMISSION AND THAT AT TIME OF RETIREMENT HE HAD MORE THAN 21 YEARS' ACTIVE SERVICE, AT LEAST 10 OF WHICH HAD BEEN AS A COMMISSIONED OFFICER, AND THUS WAS QUALIFIED FOR RETIREMENT FOR YEARS OF SERVICE UNDER 10 U.S.C. 8911 AND ENTITLED TO COMPUTE HIS RETIRED PAY UNDER 10 U.S.C. 8991. IT APPEARS THAT HE WAS RETIRED FOR PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY COLONEL AND THAT HE HELD THE SAME GRADE IN THE AIR FORCE RESERVE AT THAT TIME. IT IS SHOWN THAT HE HAD OVER 28 YEARS OF SERVICE (ACTIVE AND INACTIVE) WHEN HE WAS RETIRED AND THAT HIS RETIRED PAY IS BEING COMPUTED ON THAT BASIS AS AUTHORIZED UNDER 10 U.S.C. 3911, 8911 AND 1405, THIS METHOD BEING THE MOST FAVORABLE. U.S.C. 1401 PROVIDES FOR THE COMPUTATION OF RETIRED PAY OF THE MEMBERS COVERED THEREBY UNDER THE FORMULA THAT IS MOST FAVORABLE TO THEM.

WE SAID IN DECISION B-136459, JULY 9, 1962, THAT A PERSON SERVING ON ACTIVE DUTY IN A TEMPORARY COMMISSIONED GRADE RECEIVED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906, MAY NOT BE RETIRED PURSUANT TO SECTION 202 OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1084, OR THE SIMILAR PROVISION CONTAINED IN 10 U.S.C. 3911, 8911, UNLESS HE ALSO HOLDS A RESERVE COMMISSION; THAT RETIREMENT IS AUTHORIZED IN AN OTHERWISE PROPER CASE UNDER SUCH PROVISIONS OF LAW EVEN THOUGH THE OFFICER IS NOT SERVING ON ACTIVE DUTY IN HIS RESERVE STATUS, SEE 28 COMP. GEN. 655; AND THAT A RETIREMENT IN SUCH CASE IS ACCOMPLISHED IN THE RESERVE GRADE HELD AT THE TIME OF RETIREMENT, 10 U.S.C. 3961. IT WAS FURTHER HELD THAT AN OFFICER SO RETIRED UNDER 10 U.S.C. 3911, 8911, WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE UNDER THE OFFICERS PERSONNEL ACT, WHICH GRADE WAS LOWER THAN OR THE SAME AS HIS RESERVE COMMISSION GRADE, IS EXEMPT FROM A DUAL COMPENSATION RESTRICTIONS BY VIRTUE OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, AND SECTION 29 (C) OF THE ACT OF AUGUST 10, 1946, CH. 1041, 70A STAT. 732, 5 U.S.C. 30R (C), SINCE HE IS "ENTITLED TO RETIRED PAY BECAUSE OF HIS RESERVE STATUS AND UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED SERVICES.' WHILE COLONEL JUSTICE WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201, RATHER THAN FOR YEARS OF SERVICE UNDER 10 U.S.C. 8911, THE RETIRED PAY HE IS RECEIVING ACCRUED TO HIM SOLELY BY VIRTUE OF HIS RESERVE STATUS. IN SUCH CIRCUMSTANCE THE CONCLUSION APPEARS WARRANTED THAT THE RETIRED PAY HE IS RECEIVING IS BEING PAID TO HIM AS A "RESERVE" WITHIN THE MEANING OF THAT TERM AS USED IN THE 1956 ACT. THAT PART OF THE ANSWER TO QUESTION 1 (A) (3) IN THE DECISION OF JULY 9, TO THE EFFECT THAT A MEMBER WHO IS RETIRED FOR DISABILITY IN HIS TEMPORARY OFFICER GRADE (THE GRADE IN WHICH HE WAS SERVING AND WHICH WAS THE SAME AS HIS RESERVE GRADE) IS SUBJECT TO THE LIMITATIONS OF THE ECONOMY ACT WAS INTENDED TO APPLY TO A RETIRED TEMPORARY OFFICER WHOSE RETIRED PAY IS BASED ON HIS TEMPORARY OFFICER STATUS. IF COLONEL JUSTICE'S RETIRED PAY WERE BASED ON THAT STATUS UNDER FORMULA 1 OF 10 U.S.C. 1401, HE WOULD BE CREDITED WITH LESS THAN THE 28 YEARS' SERVICE BEING USED IN COMPUTING HIS RETIRED PAY. SHORT, SINCE HIS RETIRED PAY IS BEING COMPUTED BY THE YEARS-OF-SERVICE METHOD PRESCRIBED FOR OFFICERS RETIRED UNDER 10 U.S.C. 8911, IT APPEARS PROPER TO VIEW HIS STATUS, FOR PURPOSES OF DUAL COMPENSATION EXEMPTION, AS BEING THE SAME AS THAT OF A RESERVE OFFICER WHO WAS RETIRED FOR YEARS OF SERVICE UNDER THOSE STATUTORY PROVISIONS.

SINCE IT APPEARS THAT COLONEL JUSTICE IS EXEMPT FROM THE RESTRICTION OF THE ECONOMY ACT, HIS RETIRED PAY WAS IMPROPERLY WITHHELD FOR THE PERIOD OF OCTOBER 1, 1962, THROUGH MARCH 31, 1963, AND THE VOUCHER, WHICH IS RETURNED HEREWITH, IS PROPER FOR PAYMENT IF OTHERWISE CORRECT.