B-151665, AUG. 21, 1963, 43 COMP. GEN. 181

B-151665: Aug 21, 1963

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COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - NONAPPROPRIATED FUND POSITIONS RETIRED OFFICERS OF THE UNIFORMED SERVICES EMPLOYED BY NONAPPROPRIATED FUND INSTRUMENTALITIES AND PAID FROM NONAPPROPRIATED FUNDS WHILE RECEIVING RETIRED PAY WILL NO LONGER BE CONSIDERED TO BE HOLDING CIVILIAN OFFICES OR POSITIONS UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF THE DOUBLE COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932. RETIRED PAY MAY BE MADE IN SIMILAR CASES OF RETIRED OFFICERS WHO HAVE BEEN OR MAY BE EMPLOYED BY NONAPPROPRIATED FUND ACTIVITIES AND PAID FROM NONAPPROPRIATED FUNDS. 1963: REFERENCE IS MADE TO YOUR LETTER DATED MAY 16. IT IS STATED THAT CAPTAIN SPINA WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE RETIRED LIST OF THE U.S.

B-151665, AUG. 21, 1963, 43 COMP. GEN. 181

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - NONAPPROPRIATED FUND POSITIONS RETIRED OFFICERS OF THE UNIFORMED SERVICES EMPLOYED BY NONAPPROPRIATED FUND INSTRUMENTALITIES AND PAID FROM NONAPPROPRIATED FUNDS WHILE RECEIVING RETIRED PAY WILL NO LONGER BE CONSIDERED TO BE HOLDING CIVILIAN OFFICES OR POSITIONS UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF THE DOUBLE COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A, IN VIEW OF THE HOLDING OF THE COURT OF CLAIMS IN GRADALL V. UNITED STATES, CT.CL. NO. 4-60, DECIDED MAY 10, 1963, AS TO THE STATUS OF EMPLOYMENT WITH MILITARY EXCHANGE SERVICES, AND RETIRED PAY MAY BE MADE IN SIMILAR CASES OF RETIRED OFFICERS WHO HAVE BEEN OR MAY BE EMPLOYED BY NONAPPROPRIATED FUND ACTIVITIES AND PAID FROM NONAPPROPRIATED FUNDS.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, AUGUST 21, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 16, 1963, REQUESTING A DECISION AS TO WHETHER CAPTAIN LEONARD C. SPINA, 042467, U.S. MARINE CORPS, RETIRED, MAY BE PAID THE SUM OF $556.19 WITHHELD FROM HIS RETIRED PAY DURING 1962 UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A). YOUR REQUEST HAS BEEN ASSIGNED NO. DO-MC-707 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT CAPTAIN SPINA WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE RETIRED LIST OF THE U.S. MARINE CORPS ON JULY 1, 1960, UNDER 10 U.S.C. 6323; THAT HIS RETIRED PAY DURING 1962 WAS $321 PER MONTH, OR AN ANNUAL RATE OF $3,852; THAT HE WAS EMPLOYED AS A CIVILIAN EMPLOYEE BY THE BOLLING AIR FORCE BASE EXCHANGE, BOLLING AIR FORCE BASE, FROM JANUARY 1, 1962, THROUGH JULY 31, 1962, AT AN ANNUAL SALARY OF $6,600, AND FROM AUGUST 1, 1962, THROUGH DECEMBER 31, 1962, AT AN ANNUAL SALARY OF $6,850; THAT HIS RETIRED PAY WAS REDUCED AT THE RATE OF $37.67 PER MONTH FROM JANUARY 1, 1962, THROUGH JULY 31, 1962, AND AT THE RATE OF $58.50 PER MONTH FROM AUGUST 1, 1962, THROUGH DECEMBER 31, 1962, A TOTAL REDUCTION OF $556.19; AND THAT THE REDUCTION WAS EFFECTED PURSUANT TO THE DECISION IN 24 COMP. GEN. 771 THAT A PERSON EMPLOYED BY AN ARMY POST EXCHANGE IS TO BE REGARDED AS HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932.

YOU CITE THE CASE OF GRADALL V. UNITED STATES, CT.CL. NO. 4-60, DECIDED MAY 10, 1963, WHEREIN THE COURT HELD THAT THE PLAINTIFF'S EMPLOYMENT IN THE ARMY AND AIR FORCE EXCHANGE SERVICE--- A FEDERAL NONAPPROPRIATED FUND INSTRUMENTALITY--- DID NOT CONSTITUTE HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932. CITING THE GRADALL CASE, THE COURT, ALSO ON MAY 10, 1963, FOUND FOR THE PLAINTIFF IN THE CASE OF COCKRILL V. UNITED STATES, CT.CL. NO. 315-58, WHERE PLAINTIFF, IN ADDITION TO RECEIVING HIS RETIRED PAY FROM THE ARMY, ALSO RECEIVED A SALARY FROM THE FORT SAM HOUSTON GOLF CLUB, AN INSTRUMENTALITY "ESTABLISHED AND MAINTAINED UNDER THE PROVISIONS OF ARMY REGULATIONS 210-60 RELATING TO POST MESSES AND CLUBS AT POSTS, CAMPS AND STATIONS.' IN A THIRD CASE--- JACKSON V. UNITED STATES, CT.CL. NO. 98-62--- SIMILAR TO THE GRADALL AND COCKRILL CASES, AN ORDER OF THE COURT DATED JUNE 14, 1963, HELD THAT PLAINTIFF WAS ENTITLED TO RECOVER WITHHELD RETIRED PAY.

WE HAVE DECIDED TO FOLLOW THE COURT'S RULING AS TO THE STATUS OF SUCH EMPLOYMENT AND, HENCE, OTHERWISE PROPER PAYMENTS OF RETIRED PAY MAY BE MADE IN SIMILAR CASES OF RETIRED OFFICERS WHO HAVE BEEN OR MAY BE EMPLOYED BY NONAPPROPRIATED FUND INSTRUMENTALITIES AND PAID FROM NONAPPROPRIATED FUNDS OF THE UNITED STATES GOVERNMENT.

IN THE PRESENT MATTER NO VOUCHER ACCOMPANIED YOUR LETTER. HOWEVER, CAPTAIN SPINA MAY BE PAID THE AMOUNT WITHHELD FROM HIS RETIRED PAY DURING 1962 UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, UPON PRESENTATION OF A PROPER CLAIM, IF IN ACCORD WITH THE FOREGOING.