B-154047, JUN. 9, 1954

B-154047, JUN. 9, 1954

TO LIEUTENANT COLONEL PAUL Q. ERICKSEN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1964, RELATIVE TO YOUR CLAIM FOR REFUND OF AMOUNTS WITHHELD FROM YOUR RETIRED PAY AS IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF JUNE 3, 1963, AND YOU NOW REQUEST RECONSIDERATION OF THAT ACTION ON THE BASIS OF OUR DECISION, B-151425, DATED JUNE 19, 1963.

THE RECORD INDICATES THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES ON OCTOBER 9, 1942, AND THAT YOU SERVED ON ACTIVE DUTY CONTINUOUSLY FROM THAT DATE UNTIL YOUR RETIREMENT. YOUR FIRST APPOINTMENT AS A RESERVE OFFICER WAS IN THE GRADE OF CAPTAIN AND WAS ACCEPTED BY YOU ON JUNE 2, 1947. HOWEVER, YOU HAD BEEN SERVING ON ACTIVE DUTY IN THE GRADE OF CAPTAIN UNDER A TEMPORARY APPOINTMENT, AND PRESUMABLY RECEIVING THE ACTIVE DUTY PAY AND ALLOWANCES OF A CAPTAIN, SINCE APRIL 25, 1946. YOUR RESERVE APPOINTMENT, THEREFORE, MADE NO CHANGE IN YOUR STATUS ON ACTIVE DUTY. ALTHOUGH YOU CONTINUED TO HOLD A RESERVE STATUS DURING THE REMAINDER OF YOUR ACTIVE MILITARY SERVICE, YOU CONTINUED SERVING UNDER TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES IN COMMISSIONED GRADES WHICH WERE THE SAME AS OR HIGHER THAN THE RESERVE GRADES CONCURRENTLY HELD BY YOU.

ON FEBRUARY 13, 1963, HAVING BEEN FOUND PERMANENTLY UNFIT FOR DUTY BY REASON OF PHYSICAL DISABILITY, YOU WERE RELEASED FROM ACTIVE DUTY AND, EFFECTIVE FEBRUARY 14, 1963, YOU WERE PLACED ON THE DISABILITY RETIRED LIST PURSUANT TO 10 U.S.C. 1201. THE FORMULAS FOR COMPUTATION OF DISABILITY RETIRED PAY ARE PROVIDED IN 10 U.S.C. 1401, WHICH CONTAINS THE FOLLOWING QUALIFYING STATEMENT:

"HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.'

SINCE YOU HAD QUALIFIED FOR AND APPLIED FOR VOLUNTARY RETIREMENT, WHICH APPARENTLY WOULD HAVE BEEN EFFECTED UNDER 10 U.S.C. 3911 HAD YOU NOT BEEN FOUND PHYSICALLY DISABLED AND WOULD HAVE RESULTED IN COMPUTATION OF YOUR RETIRED PAY UNDER FORMULA B OF 10 U.S.C. 3991, THE ABOVE QUOTED PROVISION AUTHORIZES COMPUTATION OF YOUR RETIRED PAY UNDER WHICHEVER OF THE APPLICABLE FORMULAS IS MOST FAVORABLE TO YOU. UPON RETIREMENT YOUR RETIRED PAY WAS ESTABLISHED AT THE RATE OF $391.13 PER MONTH WHICH REPRESENTS THE AMOUNT COMPUTED UNDER FORMULA 1 (1) OF 10 U.S.C. 1401. SINCE YOU HAD NO SERVICE WHICH WOULD BE CREDITABLE IN THE COMPUTATION OF RETIRED PAY UNDER SECTION 3991 WHICH WAS NOT ACTUALLY CREDITED IN COMPUTING YOUR RETIRED PAY UNDER SECTION 1401, THE BASIC FORMULA OF SECTION 1401 CONTROLS.

THE AIR FORCE OFFICER CONCERNED IN OUR DECISION, B-151425, JUNE 19, 1963, CITED BY YOU, WAS RETIRED UNDER CIRCUMSTANCES SIMILAR TO YOURS BUT HIS RETIRED PAY COMPUTED UNDER 10 U.S.C. 8911 AND 8991 (COMPARABLE TO SECTIONS 3911 AND 3991 FOR ARMY MEMBERS) WAS GREATER THAN EITHER OF THE RATES TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER SECTION 1401. SINCE THE RIGHT TO BE RETIRED UNDER SECTION 8911 WITH RETIRED PAY COMPUTED UNDER SECTION 8991 WAS DEPENDENT UPON HIS RESERVE STATUS AND THE RETIRED PAY HE ACTUALLY RECEIVED WAS COMPUTED AS PROVIDED FOR A RESERVIST SO RETIRED, HE WAS REGARDED AS A RETIRED RESERVE OFFICER WHO IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION IN ACCORDANCE WITH DECISIONS OF THE COURT OF CLAIMS RELATING TO THIS MATTER. THE RETIRED PAY TO WHICH YOU WOULD BE ENTITLED UNDER SECTION 3991 AS A RESERVIST IS NO GREATER THAN THE RETIRED PAY WHICH YOU RECEIVED COMPUTED UNDER SECTION 1401 AND THAT ENTITLEMENT ACCRUED TO YOU ON THE BASIS OF THE TEMPORARY APPOINTMENT UNDER WHICH YOU WERE SERVING AT THE TIME OF RETIREMENT WITHOUT REGARD TO THE INACTIVE RESERVE COMMISSION THEN HELD BY YOU. THEREFORE THERE IS NO BASIS FOR REGARDING YOU AS HAVING BEEN RETIRED IN YOUR RESERVE STATUS AND THUS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION.

ALTHOUGH YOU ARE NOT EXEMPT FROM APPLICATION OF THE DUAL COMPENSATION RESTRICTION, IN VIEW OF THE FACT YOU DID NOT RECEIVE EITHER RETIRED PAY OR CIVILIAN SALARY FOR THE ENTIRE YEAR, IT APPEARS THAT YOU MAY BE ENTITLED TO A REFUND OF AMOUNTS WITHHELD DURING THE CALENDAR YEAR 1963 ON THE BASIS OF THE DECISIONS IN THE CASES OF SCHUYLER V. UNITED STATES, 148 CT.CL. 479 (1960) AND DELLINGER V. UNITED STATES, CT.CL. NO. 83-61, DATED MAY 9, 1962. THOSE DECISIONS CONCERN APPLICATION OF SUBSECTION (B) OF 5 U.S.C. 59A, WHICH PROVIDES, IN PART, AS FOLLOWS:

"THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: * * *.'

THE COURT HELD THAT THE APPROPRIATE PERIOD OF TIME INTENDED TO BE USED FOR THE PURPOSE OF APPLYING THE RESTRICTION IS THE CALENDAR YEAR. WE ARE FOLLOWING THE COURT'S DECISIONS IN THOSE CASES. 42 COMP. GEN. 71. IT IS SUGGESTED, THEREFORE, THAT IF THE COMBINED AMOUNTS OF YOUR RETIRED PAY AND CIVILIAN SALARY FOR THE CALENDAR YEAR 1963 WERE LESS THAN $10,000 AND YOU HAVE NOT PREVIOUSLY RECEIVED A REFUND OF AMOUNTS WITHHELD FROM YOUR RETIRED PAY, YOU SHOULD ADDRESS A CLAIM TO THE DEPARTMENT OF THE ARMY, RETIRED PAY DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA.

THERE IS NOW PENDING BEFORE THE CONGRESS H.R. 7381, A BILL TO SIMPLIFY, MODERNIZE AND CONSOLIDATE THE LAWS RELATING TO THE EMPLOYMENT OF CIVILIANS IN MORE THAN ONE POSITION AND THE LAWS CONCERNING THE CIVILIAN EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES. THAT BILL CONTAINS A RELIEF PROVISION WHICH WOULD RETROACTIVELY EXEMPT FROM THE DUAL COMPENSATION RESTRICTION NONREGULAR OFFICERS WHO WERE RETIRED FOR PHYSICAL DISABILITY IN THE SAME GRADE AS THAT HELD BY THEM IN A RESERVE COMPONENT. HOWEVER, THE PROPOSED LEGISLATION HAS NOT BEEN ENACTED INTO LAW.