B-157402, SEP. 28, 1965

B-157402: Sep 28, 1965

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF JULY 26. PURSUANT TO THE ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS UNDER 10 U.S.C. 1552 TO SHOW THAT YOU WERE RETIRED FOR PHYSICAL DISABILITY ON OCTOBER 26. SINCE YOU HAD BEEN EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY DURING THE PERIOD FOR WHICH RETIRED PAY WAS ALLOWED. THE NECESSARY DEDUCTIONS WERE MADE FROM THAT RETIRED PAY TO BRING YOUR COMBINED RETIRED PAY AND CIVILIAN SALARY WITHIN THE $3. YOU REQUEST REVIEW OF THAT ACTION AND PAYMENT OF THE AMOUNT WITHHELD ON THE BASIS THAT YOU ARE A RESERVE OFFICER AND THEREFORE EXEMPT FROM APPLICATION OF THE DUAL COMPENSATION RESTRICTION OR THAT WITHHOLDING OF THE AMOUNT IN QUESTION WAS CONTRARY TO OUR DECISION.

B-157402, SEP. 28, 1965

TO LIEUTENANT JOHN R. AGURKIS, USNR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1965, REQUESTING PAYMENT OF THE AMOUNT WITHHELD FROM YOUR RETIRED PAY ON SETTLEMENT VOUCHER ISSUED BY OUR CLAIMS DIVISION UNDER DATE OF JUNE 29, 1965, BY REASON OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (1958 ED.).

THE SETTLEMENT OF JUNE 29, 1965, ALLOWED YOU RETIRED PAY FOR THE PERIOD OCTOBER 26, 1941, TO JANUARY 31, 1943, BASED ON THE CORRECTION OF YOUR RECORDS ON OCTOBER 14, 1964, PURSUANT TO THE ACTION TAKEN BY THE BOARD FOR CORRECTION OF NAVAL RECORDS UNDER 10 U.S.C. 1552 TO SHOW THAT YOU WERE RETIRED FOR PHYSICAL DISABILITY ON OCTOBER 26, 1941, RATHER THAN FEBRUARY 1, 1943. SINCE YOU HAD BEEN EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY DURING THE PERIOD FOR WHICH RETIRED PAY WAS ALLOWED, THE NECESSARY DEDUCTIONS WERE MADE FROM THAT RETIRED PAY TO BRING YOUR COMBINED RETIRED PAY AND CIVILIAN SALARY WITHIN THE $3,000 LIMITATION PRESCRIBED BY THE 1932 ACT. YOU REQUEST REVIEW OF THAT ACTION AND PAYMENT OF THE AMOUNT WITHHELD ON THE BASIS THAT YOU ARE A RESERVE OFFICER AND THEREFORE EXEMPT FROM APPLICATION OF THE DUAL COMPENSATION RESTRICTION OR THAT WITHHOLDING OF THE AMOUNT IN QUESTION WAS CONTRARY TO OUR DECISION, B -151263, DATED OCTOBER 23, 1963.

NAVAL RESERVE OFFICERS GENERALLY HAVE BEEN REGARDED AS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION IN THE 1932 ACT SINCE THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, SECTION 804/A) OF WHICH AMENDED SECTION 1/B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 238, 239 WHICH, AS ORIGINALLY ENACTED, APPLIED ONLY TO MEMBERS OF THE ARMY AND PROVIDED AS FOLLOWS:

"PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.'

THE 1952 AMENDMENT MADE THE ABOVE PROVISIONS APPLICABLE TO MEMBERS OF THE "RESERVE COMPONENTS OF THE ARMED FORCES" RATHER THAN THE OFFICERS' RESERVE CORPS AND ENLISTED RESERVE CORPS OF THE ARMY. PRIOR TO THAT TIME SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, CH. 690, 52 STAT. 1176, PROVIDED THE FOLLOWING EXEMPTION FOR NAVAL RESERVISTS:

"* * * AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.'

THE RECORD SHOWS THAT YOU WERE RETIRED UNDER AUTHORITY OF SECTION 4 OF THE ACT OF AUGUST 27, 1940, CH. 694, 54 STAT. 864, AS AMENDED BY THE ACT OF OCTOBER 10, 1942, CH. 586, 56 STAT. 780. SINCE YOUR RETIRED PAY WAS NOT PAID UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, THE EXEMPTION IN THAT ACT HAS NO EFFECT ON YOUR STATUS WITH RESPECT TO APPLICATION OF THE DUAL COMPENSATION RESTRICTION. SEE DINGLEY V. UNITED STATES, CT. CL. NO. 424-54, DECIDED MARCH 12, 1965, WHERE THE COURT OF CLAIMS HELD THAT SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 DID NOT AFFORD EXEMPTION FROM DUAL COMPENSATION RESTRICTIONS TO A RETIRED OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WAS RECEIVING RETIRED PAY UNDER THE ACT OF AUGUST 27, 1940.

OUR DECISION OF OCTOBER 23, 1963, B-151263, WAS BASED ON THE ACT OF AUGUST 28, 1954, CH. 1035, 68 STAT. 890, WHICH IN EFFECT PROHIBITS A RETROACTIVE COLLECTION BY THE UNITED STATES OF AMOUNTS PREVIOUSLY PAID TO AN INDIVIDUAL IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTIONS IF THE OVERPAYMENT IS NOT REPORTED TO THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS FROM THE LAST DATE OF ANY PERIOD OF DUAL COMPENSATION. A COPY OF THAT DECISION IS ENCLOSED FOR YOUR INFORMATION. SINCE THE AMOUNTS IN QUESTION WERE PROPERLY WITHHELD AT THE TIME YOU WERE PAIDRETIRED PAY FOR THE PERIOD OCTOBER 26, 1941, TO JUNE 31, 1943, AND NO ERRONEOUS PAYMENTS WERE MADE TO YOU FOR THAT PERIOD IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTION, THERE IS NO AMOUNT FOR COLLECTION FROM YOU ON ACCOUNT OF RECEIPT OF DUAL COMPENSATION FOR SUCH PERIOD AND THE ACT OF AUGUST 28, 1954, HAS NO APPLICATION.