B-154144, SEPTEMBER 2, 1964, 44 COMP. GEN. 119

B-154144: Sep 2, 1964

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THE OFFICER HAVING BEEN RETIRED PRIOR TO THE EFFECTIVE DATE PRESCRIBED BY SECTION 403 (A) IS NOT SUBJECT AFTER RETIREMENT TO THE RESTRICTIONS IMPOSED BY 5 U.S.C. 59A ON THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY. YOUR REQUEST FOR A DECISION IN THE MATTER WAS ASSIGNED NO. MAJOR FLYNN WAS TEMPORARILY PROMOTED AND COMMISSIONED AS A MAJOR IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947. HE WAS APPOINTED A MAJOR IN THE UNITED STATES ARMY RESERVE. HE WAS RELIEVED FROM ACTIVE DUTY WHILE SERVING IN THE GRADE OF MAJOR. HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1201 AND 1372 BY REASON OF A PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY (NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR AS THE RESULT OF AN INSTRUMENTALITY OF WAR).

B-154144, SEPTEMBER 2, 1964, 44 COMP. GEN. 119

COMPENSATION - DOUBLE - EXEMPTIONS - DUAL COMPENSATION ACT OF 1964 - EFFECTIVE DATE THE RETIRED STATUS OF A MILITARY OFFICER EMPLOYED IN A CIVILIAN POSITION FOLLOWING RETIREMENT ON FEBRUARY 24, 1962 FOR DISABILITY UNDER 10 U.S.C. 1201 AND 1372, WHILE SERVING IN THE TEMPORARY GRADE OF MAJOR IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER AN APPOINTMENT MADE PURSUANT TO SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, THE GRADE THAT HE HELD IN THE UNITED STATES RESERVE, COMES WITHIN THE SCOPE OF SECTION 201 (G) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, AND THE OFFICER HAVING BEEN RETIRED PRIOR TO THE EFFECTIVE DATE PRESCRIBED BY SECTION 403 (A) IS NOT SUBJECT AFTER RETIREMENT TO THE RESTRICTIONS IMPOSED BY 5 U.S.C. 59A ON THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY, SECTION 201 (G) EFFECTIVE AUGUST 19, 1964 PURSUANT TO SECTION 403 (B/--- THE ACT AS A WHOLE BEING EFFECTIVE DECEMBER 1, 1964, AS PRESCRIBED BY SECTION 403 (A/--- PROVIDING FOR THE RETROACTIVE APPLICATION OF THE EXEMPTION TO 5 U.S.C. 59A RESTRICTIONS TO ANY PERIOD FOLLOWING RETIREMENT.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, SEPTEMBER 2, 1964:

BY LETTER OF MARCH 4, 1964 (FORWARDED HERE WITH FIRST INDORSEMENT OF MAY 5, 1964, FROM OFFICE, CHIEF OF FINANCE), YOU PRESENTED FOR AN ADVANCE DECISION THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN FAVOR OF MAJOR LESTER M. FLYNN, 0-739175, IN THE AMOUNT OF $118.96, REPRESENTING RETIRED PAY WITHHELD FOR THE MONTH OF FEBRUARY 1964 BY REASON OF THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. YOUR REQUEST FOR A DECISION IN THE MATTER WAS ASSIGNED NO. DO-A-766 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD, INSOFAR AS HEREIN PERTINENT, SHOWS: (1) THAT ON AUGUST 10, 1955, MAJOR FLYNN WAS TEMPORARILY PROMOTED AND COMMISSIONED AS A MAJOR IN THE ARMY OF THE UNITED STATES UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 907, 10 U.S.C. 506D (C) (1952 ED.) (SEE PARAGRAPH 12, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 158, AUGUST 10, 1955); (2) ON FEBRUARY 24, 1956, HE WAS APPOINTED A MAJOR IN THE UNITED STATES ARMY RESERVE; (3) ON FEBRUARY 23, 1962, HE WAS RELIEVED FROM ACTIVE DUTY WHILE SERVING IN THE GRADE OF MAJOR, ARMY OF THE UNITED STATES; AND (4) ON FEBRUARY 24, 1962, HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1201 AND 1372 BY REASON OF A PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY (NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR AS THE RESULT OF AN INSTRUMENTALITY OF WAR).

IT IS STATED THAT MAJOR FLYNN WAS EMPLOYED IN A CIVILIAN CAPACITY BY THE DEPARTMENT OF THE ARMY COMMENCING NOVEMBER 28, 1962, AND THAT HIS RETIRED PAY WAS REDUCED EFFECTIVE JANUARY 1, 1963, SINCE THE ANNUAL RATE OF THE SALARY FOR HIS FEDERAL CIVILIAN POSITION WHEN COMBINED WITH THE RATE OF HIS RETIRED PAY (COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1401, 3991, FORMULA B) EXCEEDED THE $10,000 PER ANNUM LIMITATION PRESCRIBED IN 5 U.S.C. 59A (1958 ED.).

SECTION 201 (G) OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 486, PROVIDES AS FOLLOWS:

A MEMBER OF ANY OF THE UNIFORMED SERVICES, SERVING IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, UNDER AN APPOINTMENT MADE UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, IN A TEMPORARY GRADE HIGHER THAN, OR THE SAME AS, THE RESERVE COMMISSION HE THEN HELD, WHO, PRIOR TO THE EFFECTIVE DATE PRESCRIBED BY SECTION 403 (A) OF THIS ACT, WAS RETIRED FOR PHYSICAL DISABILITY IN SUCH TEMPORARY GRADE, SHALL NOT BE CONSIDERED AS SUBJECT TO THE RESTRICTION ON THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY CONTAINED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A), FOR ANY PERIOD FOLLOWING SUCH RETIREMENT.

SECTION 403 OF THAT ACT, 78 STAT. 496, PROVIDES:

(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, THIS ACT SHALL BECOME EFFECTIVE ON THE FIRST DAY OF THE FIRST MONTH WHICH BEGINS LATER THAN THE NINETIETH DAY FOLLOWING THE DATE OF ENACTMENT OF THIS ACT.

(B) THIS SECTION AND SECTIONS 201 (G) AND 201 (H) SHALL BECOME EFFECTIVE ON THE DATE OF ENACTMENT OF THIS ACT.

WHILE THE DUAL COMPENSATION ACT OF AUGUST 19, 1964, WILL NOT BECOME EFFECTIVE AS A WHOLE UNTIL DECEMBER 1, 1964, THE PROVISIONS OF SECTIONS 201 (G) AND 201 (H) ARE EXPRESSLY MADE EFFECTIVE AS OF THE DATE OF ENACTMENT OF THE ACT, AUGUST 19, 1964. SECTION 201 (G) SPECIFICALLY PROVIDES THAT IN THE CIRCUMSTANCES THEREIN SET FORTH A RETIRED MEMBER OF THE UNIFORMED SERVICES SHALL NOT BE CONSIDERED AS SUBJECT TO THE RESTRICTION ON THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY CONTAINED IN 5 U.S.C. 59A "FOR ANY PERIOD FOLLOWING SUCH RETIREMENT.' THE EXEMPTION IS RETROACTIVE. SEE S.REPT.NO. 935, PAGE 5, AND H.REPT.NO. 890, PAGE 9, OF H.R. 7381, 88TH CONGRESS, 2D SESS., WHICH BECAME THE ACT OF AUGUST 19, 1964.

THE FACTS ABOVE RELATED CLEARLY ESTABLISH THAT WHILE SERVING IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER AN APPOINTMENT MADE PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, 10 U.S.C. 506D (1952 ED.), IN A TEMPORARY GRADE THE SAME AS THE RESERVE COMMISSION HE THEN HELD AS A MAJOR IN THE UNITED STATES ARMY RESERVE, MAJOR FLYNN WAS RETIRED FEBRUARY 24, 1962, FOR PHYSICAL DISABILITY IN SUCH TEMPORARY GRADE. HIS RETIRED STATUS THEREFORE COMES SQUARELY WITHIN THE SCOPE OF THE PROVISIONS OF SECTION 201 (G) OF PUBLIC LAW 88-448 AND CONSEQUENTLY HE MUST BE CONSIDERED AS EXEMPT FROM THE RESTRICTIONS OF 5 U.S.C. 59A FROM THE DATE OF HIS RETIREMENT.

ACCORDINGLY, PAYMENT ON THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE MADE IF OTHERWISE CORRECT.

IN VIEW OF THE CONCLUSION REACHED ABOVE, NO REPLY IS DEEMED REQUIRED TO THE SEVERAL ADDITIONAL QUESTIONS PRESENTED IN YOUR LETTER.