B-154881, AUG. 25, 1964

B-154881: Aug 25, 1964

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SAMMS REFERENCE IS MADE TO YOUR LETTER OF JULY 21. WAS SERVING ON ACTIVE DUTY AS A TEMPORARY MAJOR IN THE AIR FORCE OF THE UNITED STATES WHEN HE WAS RETIRED IN THAT GRADE BY REASON OF PHYSICAL DISABILITY ON DECEMBER 12. IT WAS CONCLUDED THAT ALL THOSE CONSIDERED. WERE EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT. THAT EXCEPTION INVOLVED RESERVE OFFICERS OF THE ARMY AND AIR FORCE WHO WERE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE (TO WHICH THEY WERE APPOINTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947. WHICH WAS EQUAL TO. IT WAS HELD THAT SUCH OFFICERS MAY NOT BE CONSIDERED TO HAVE RETIRED UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED FORCES SO AS TO BE EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT.

B-154881, AUG. 25, 1964

TO MRS. VIRGINIA L. SAMMS:

TO MRS. VIRGINIA L. SAMMS

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1964, RELATIVE TO THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, IN THE CASE OF MAJOR HARRY N. SAMMS, USAF, RETIRED.

IT APPEARS FROM THE INFORMATION MADE AVAILABLE TO US BY THE DEPARTMENT OF THE AIR FORCE THAT MAJOR SAMMS, SERVICE NUMBER AO 2083030, WAS SERVING ON ACTIVE DUTY AS A TEMPORARY MAJOR IN THE AIR FORCE OF THE UNITED STATES WHEN HE WAS RETIRED IN THAT GRADE BY REASON OF PHYSICAL DISABILITY ON DECEMBER 12, 1963, AND THAT HE HELD A RESERVE COMMISSION, INACTIVE, AT THE TIME.

OUR DECISION OF JULY 9, 1962, B-136459, COPY ENCLOSED, CONSIDERED THE DUAL COMPENSATION STATUS OF SEVERAL CATEGORIES OF RETIRED MEMBERS OF THE MILITARY SERVICES UNDER THE DUAL COMPENSATION RESTRICTIONS OF 5 U.S.C. 59A. IN THAT DECISION, IT WAS CONCLUDED THAT ALL THOSE CONSIDERED, WITH ONE EXCEPTION (SEE ANSWER TO QUESTION 1A (3) (, WERE EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT. THAT EXCEPTION INVOLVED RESERVE OFFICERS OF THE ARMY AND AIR FORCE WHO WERE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE (TO WHICH THEY WERE APPOINTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906), WHICH WAS EQUAL TO, OR HIGHER THAN THEIR RESERVE GRADE AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY. IT WAS HELD THAT SUCH OFFICERS MAY NOT BE CONSIDERED TO HAVE RETIRED UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED FORCES SO AS TO BE EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT, AS AMENDED.

IN OUR DECISION TO THE SECRETARY OF DEFENSE DATED AUGUST 14, 1962, B- 136459, IT WAS CONCLUDED THAT THE DECISION OF JULY 9, 1962, SHOULD BE APPLIED PROSPECTIVELY FROM OCTOBER 1, 1962, THUS ALLOWING THE ADMINISTRATIVE OFFICES TIME TO COMPLETE THE NECESSARY ADJUSTMENTS AND PROCEDURES. UNDER OUR DECISIONS, A RETIRED OFFICER OF THE ARMY OR AIR FORCE OF THE CLASS MENTIONED ABOVE WAS NOT PERMITTED TO DRAW MILITARY RETIRED PAY AND CIVILIAN SALARY AFTER OCTOBER 1, 1962, IN EXCESS OF THE MAXIMUM PER ANNUM RATE ($10,000) FIXED BY THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, IN EFFECT AT THE TIME. THAT CONCLUSION WAS REQUIRED BECAUSE OF A HOLDING BY THE COURT OF CLAIMS TO THE EFFECT THAT THE DUAL COMPENSATION RIGHTS OF SUCH AN OFFICER ARE FOR DETERMINATION ON THE BASIS OF HIS ACTIVE DUTY STATUS AS A MEMBER OF THE ARMY OF THE UNITED STATES AND THAT HIS INACTIVE RESERVE STATUS IS OF NO SIGNIFICANCE IN THE MATTER. SEE WATMAN V. UNITED STATES, CT.CL. NO. 189- 59, DECIDED MARCH 1, 1961.

SECTION 201 (G) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUB.L. 88-448, AUTHORIZES RETROACTIVE EXEMPTION FROM THE $10,000 DUAL COMPENSATION RESTRICTION OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, FOR CERTAIN RETIRED OFFICERS WHO WERE SERVING IN THE ARMY OR AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT IN A TEMPORARY GRADE HIGHER THAN, OR THE SAME AS, THE RESERVE COMMISSION THEY THEN HELD, WHO WERE RETIRED IN SUCH GRADE FOR PHYSICAL DISABILITY. THE EXEMPTION IS RETROACTIVE AND APPLIES TO EACH SUCH OFFICER FOR ANY PERIOD FOLLOWING HIS RETIREMENT. THE EFFECT OF THE NEW PROVISION IS TO OVERCOME THE RULE OF THE WATMAN CASE AND, THEREFORE, OF OUR DECISION OF JULY 9, 1962, SO FAR AS IT PERTAINS TO SUCH OFFICERS. ADJUSTMENTS IN RETIRED PAY AUTHORIZED BY THE DUAL COMPENSATION ACT WILL BE MADE, IN THE CASE OF RETIRED AIR FORCE OFFICERS, BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO. IT IS SUGGESTED THAT MAJOR SAMMS CONTACT THAT OFFICE IF ANY ADJUSTMENT IN HIS CASE IS CLAIMED.

WE TRUST THAT THE FOREGOING EXPLAINS THE MATTER TO YOUR SATISFACTION.