B-154071, JUN. 11, 1964

B-154071: Jun 11, 1964

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THE REQUEST FOR DECISION WAS ASSIGNED NO. OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR (AS THAT TERM IS USED IN CHAPTER 11 OF TITLE 38).'. IT IS REPORTED THAT COLONEL BECKER WAS PROMOTED TO LIEUTENANT COLONEL. HE WAS RELIEVED FROM HIS RESERVE ASSIGNMENT AND APPOINTED LIEUTENANT COLONEL. HE WAS RETIRED BY REASON OF PERMANENT DISABILITY IN HIS TEMPORARY GRADE OF LIEUTENANT COLONEL UNDER 10 U.S.C. 1201 AND 1372. IT IS FURTHER REPORTED THAT HE HAD COMPLETED 39 YEARS. WHILE THE OFFICER HELD THE SAME RANK IN THE AIR FORCE RESERVE HE WAS NOT QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 8911 AND WAS NOT PERFORMING ACTIVE DUTY AS A RESERVE OFFICER WHEN HE WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201.

B-154071, JUN. 11, 1964

TO MAJOR J. H. WEBB, USAF:

BY LETTER DATED APRIL 30, 1964, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR LETTER OF MARCH 6, 1964, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL WILLIS A. BECKER, USAF, RETIRED, COVERING A REFUND OF THE RETIRED PAY WITHHELD FROM HIM DURING THE PERIOD OCTOBER 1, 1962, THROUGH SEPTEMBER 30, 1963, UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. THE REQUEST FOR DECISION WAS ASSIGNED NO. DO-AF-757 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 59A, 5 U.S. CODE, PROVIDES AS FOLLOWS:

"/A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT * * * 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 * * *.

"/B) THE SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR (AS THAT TERM IS USED IN CHAPTER 11 OF TITLE 38).'

IT IS REPORTED THAT COLONEL BECKER WAS PROMOTED TO LIEUTENANT COLONEL, AIR FORCE RESERVE ON AUGUST 30, 1946. IT APPEARS THAT ON MARCH 2, 1951, HE WAS RELIEVED FROM HIS RESERVE ASSIGNMENT AND APPOINTED LIEUTENANT COLONEL, AIR FORCE OF THE UNITED STATES, UNDER THE PROVISIONS OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906, AND ORDERED TO ACTIVE MILITARY SERVICE AS AN "AFUS OFFICER.' HE SERVED ON ACTIVE DUTY FROM MARCH 7, 1951, UNTIL APRIL 14, 1958. UNDER THE PROVISIONS OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, HE ACCEPTED AN INDEFINITE TERM APPOINTMENT AS LIEUTENANT COLONEL, AIR FORCE RESERVE, ON NOVEMBER 25, 1952. ON APRIL 14, 1958, HE WAS RETIRED BY REASON OF PERMANENT DISABILITY IN HIS TEMPORARY GRADE OF LIEUTENANT COLONEL UNDER 10 U.S.C. 1201 AND 1372. IT IS FURTHER REPORTED THAT HE HAD COMPLETED 39 YEARS, 11 MONTHS AND 22 DAYS' SERVICE FOR BASIC PAY PURPOSES AND 16.725 YEARS OF SERVICE FOR PERCENTAGE PURPOSES AT THE TIME OF HIS RETIREMENT. WHILE THE OFFICER HELD THE SAME RANK IN THE AIR FORCE RESERVE HE WAS NOT QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 8911 AND WAS NOT PERFORMING ACTIVE DUTY AS A RESERVE OFFICER WHEN HE WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201.

YOU REFER TO OUR DECISION OF JUNE 19, 1963, B-151425, AS FOR POSSIBLE APPLICATION IN THIS CASE. THE OFFICER INVOLVED IN THAT DECISION WAS ALSO RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201, WHILE SERVING AS A TEMPORARY OFFICER, AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, AND THUS WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA 1 OF 10 U.S.C. 1401. HOWEVER, HE HELD A RESERVE COMMISSION AND AT THE TIME OF RETIREMENT HE HAD MORE THAN 21 YEARS OF ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH HAD BEEN AS A COMMISSIONED OFFICER, AND THUS, UNLIKE COLONEL BECKER, WAS QUALIFIED FOR RETIREMENT AS A RESERVE OFFICER FOR YEARS OF SERVICE UNDER 10 U.S.C. 8911 AND ENTITLED TO COMPUTE HIS RETIRED PAY UNDER 10 U.S.C. 8911. HE HAD OVER 28 YEARS OF SERVICE (ACTIVE AND INACTIVE) WHEN HE WAS RETIRED, AND HIS RETIRED PAY IS BEING COMPUTED ON THAT BASIS--- 70 PERCENT (2 1/2 TIMES 28) OF HIS ACTIVE DUTY PAY--- UNDER THE PROVISIONS OF 10 U.S.C. 8911, 8991 AND 1405, WHICH FORMULA WAS MORE FAVORABLE TO HIM THAN FORMULA 1 OF 10 U.S.C. 1401, SINCE IT ENABLED HIM TO COUNT HIS INACTIVE SERVICE IN THE MULTIPLIER FACTOR IN COMPUTING HIS RETIRED PAY. UNDER 10 U.S.C. 1401, AN OFFICER IS ENTITLED TO BE PAID UNDER ONE OF THE FORMULAS THERE PRESCRIBED OR "THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM," IF ENTITLED TO RETIRED PAY UNDER ANY OTHER PROVISIONS OF LAW. SINCE THE RETIRED PAY PAID TO THE OFFICER INVOLVED IN OUR DECISION OF JUNE 19, 1963, ACCRUED TO HIM SOLELY BY VIRTUE OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, IT WAS HELD THAT HE WAS ENTITLED TO THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT GRANTED TO A "RESERVE" BY SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (C).

UNDER 10 U.S.C. 1201, 1372 AND 1401 (FORMULA 1), COLONEL BECKER IS RECEIVING RETIRED PAY IN THE AMOUNT OF $285.09 PER MONTH. HIS RETIRED PAY IS COMPUTED ON THE BASIS OF THE BASIC PAY OF A LIEUTENANT COLONEL TO WHICH THE OFFICER IS ENTITLED UNDER 10 U.S.C. 1372 AND THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM UNDER 10 U.S.C. 1208. SINCE COMPUTATION OF HIS RETIRED PAY BY VIRTUE OF HIS RESERVE STATUS, UNDER 10 U.S.C. 1333, WOULD RESULT IN LESS RETIRED PAY ($280.48 PER MONTH), THERE IS NO BASIS FOR COMPUTING HIS RETIRED PAY UNDER 10 U.S.C. 1401 (FORMULA 3) AS BEING THE MOST FAVORABLE TO HIM.

IT IS UNDERSTOOD THAT THE ADMINISTRATIVE ACTION PURSUANT TO WHICH COLONEL BECKER'S RETIRED PAY WAS REDUCED WAS BASED ON THE ANSWER TO QUESTION 1A (3) IN OUR DECISION OF JULY 9, 1962, B-136459, 42 COMP. GEN. 9. THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT--- SEE SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239 AND THE CURRENT PROVISIONS CONTAINED IN 5 U.S.C. 30R (E/-- IS BASED ON MEMBERSHIP IN, AND LAWS RELATING TO, RESERVE COMPONENTS OF THE ARMED FORCES. THAT EXCEPTION WAS EXTENDED TO PERSONS WHO RECEIVED APPOINTMENTS AS TEMPORARY OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE ACT OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, AND WHO WERE RETIRED IN THE TEMPORARY OFFICER GRADE HELD AT THAT TIME. THE 1941 ACT PROVIDED THAT THE OFFICERS APPOINTED UNDER AUTHORITY OF THAT ACT SHALL HAVE THE "SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS.' HOWEVER, WHEN COLONEL BECKER WAS PLACED ON THE DISABILITY RETIRED LIST UNDER 10 U.S.C. 1201, HE WAS SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS LIEUTENANT COLONEL IN THE AIR FORCE OF THE UNITED STATES RECEIVED UNDER AUTHORITY CONTAINED IN SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947. NO EXEMPTION FROM THE RESTRICTIONS OF THE ECONOMY ACT ACCRUED TO HIM BY VIRTUE OF SUCH TEMPORARY APPOINTMENT, SINCE THE RIGHTS, BENEFITS AND PRIVILEGES GRANTED UNDER THE SAID SECTION 515 WERE THOSE WHICH ACCRUED TO A MILITARY OFFICER WHILE SERVING ON ACTIVE DUTY IN THAT CAPACITY. SEE 10 U.S.C. 8491, AS TO THE PROVISIONS CURRENTLY IN EFFECT WHICH ALSO RESTRICT SUCH RIGHTS TO THOSE WHICH ACCRUE TO AN OFFICER WHILE "ON ACTIVE DUTY.'

SINCE COLONEL BECKER WAS RETIRED WHILE HE WAS SERVING ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE AIR FORCE OF THE UNITED STATES--- NOT AS A RESERVE OFFICER--- AND SINCE HIS DISABILITY APPARENTLY WAS NOT INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR WITHIN THE PURVIEW OF 5 U.S.C. 59A (B), IT APPEARS THAT HIS RETIRED PAY WAS PROPERLY REDUCED BY THE DEPARTMENT OF THE AIR FORCE.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT, TOGETHER WITH THE ACCOMPANYING INDORSEMENTS AND ENCLOSURES, WILL BE RETAINED HERE.