B-158548, MAR. 22, 1966

B-158548: Mar 22, 1966

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RETIRED: REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 7. WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY DURING THE PERIOD IN WHICH YOU WERE ENTITLED TO RECEIVE DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7. THE RECORD REFLECTS THAT YOU WERE RETIRED FROM THE REGULAR AIR FORCE ON DECEMBER 1. YOU SECURED CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY AND HAVE BEEN RECEIVING MILITARY RETIRED PAY FOR YEARS OF SERVICE. YOU WERE AWARDED DISABILITY COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION FOR THE ABOVE-MENTIONED PERIOD. YOU WERE NOTIFIED BY THE AIR FORCE ON NOVEMBER 24. THAT YOU WERE NOT ENTITLED TO RECEIVE RETIRED PAY FOR THE PERIOD COVERED BY THE DISABILITY COMPENSATION AWARD.

B-158548, MAR. 22, 1966

TO MASTER SERGEANT ASHER L. CRYDER, RETIRED:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 7, 1966, IN EFFECT, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 28, 1966, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY DURING THE PERIOD IN WHICH YOU WERE ENTITLED TO RECEIVE DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, CH. 458, 39 STAT. 742, AS AMENDED, 5 U.S.C. 751, ET SEQ.

THE RECORD REFLECTS THAT YOU WERE RETIRED FROM THE REGULAR AIR FORCE ON DECEMBER 1, 1963, WITH THE RANK OF MASTER SERGEANT, UPON COMPLETION OF 20 YEARS' ACTIVE SERVICE. SUBSEQUENT TO THAT TIME, YOU SECURED CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY AND HAVE BEEN RECEIVING MILITARY RETIRED PAY FOR YEARS OF SERVICE, CONCURRENT WITH YOUR CIVILIAN EMPLOYMENT PAY, EXCEPT FOR THE PERIOD NOVEMBER 15, 1965, TO DECEMBER 14, 1965, INCLUSIVE.

AS THE RESULT OF AN INJURY WHICH YOU APPARENTLY SUSTAINED WHILE PERFORMING SERVICE AS A CIVILIAN EMPLOYEE WITH THE DEPARTMENT OF THE NAVY, YOU WERE AWARDED DISABILITY COMPENSATION BY THE BUREAU OF EMPLOYEES' COMPENSATION FOR THE ABOVE-MENTIONED PERIOD. YOU WERE NOTIFIED BY THE AIR FORCE ON NOVEMBER 24, 1965, THAT YOU WERE NOT ENTITLED TO RECEIVE RETIRED PAY FOR THE PERIOD COVERED BY THE DISABILITY COMPENSATION AWARD.

IT IS YOUR CONTENTION THAT YOU ARE ENTITLED TO BOTH YOUR RETIRED PAY AND THE DISABILITY COMPENSATION AWARDED YOU, CITING AS AUTHORITY PARAGRAPH 135 C, AIR FORCE PAMPHLET 35-4-1, WHICH STATES THAT THE RESTRICTIONS OF THE DUAL OFFICE ACT (ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, 1958 ED.), ARE NOT APPLICABLE TO AIRMEN RETIRED UNDER ANY PROVISION OF LAW.

THE INFORMATION CONTAINED IN THE AIR FORCE PAMPHLET WHICH YOU CITE, HAS NO BEARING ON YOUR CLAIM SINCE IT NEITHER COVERS MATTERS OF DISABILITY COMPENSATION NOR RELATES TO ANY PROVISION OF LAW NOW IN EFFECT, THE DUAL OFFICE ACT REFERRED TO HAVING BEEN REPEALED BY SECTION 402 (A) (7) OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUB.L. 88-448, 78 STAT. 492, EFFECTIVE DECEMBER 1, 1964.

YOUR RIGHTS ARE GOVERNED BY SECTION 757 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, SUPRA, WHICH SPECIFICALLY COVERS YOUR SITUATION AND READS IN PERTINENT PART:

"AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751 -756, 757-781, 783-791 AND 793 OF THIS TITLE, * * *, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICE ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES * * *.'

OUR OFFICE HAS HELD THAT RETIRED PAY IS NOT CONSIDERED TO BE "IN RETURN FOR SERVICES ACTUALLY PERFORMED," NOR MAY IT BE REGARDED AS A PENSION FOR MILITARY SERVICE. SEE 18 COMP. GEN. 747 AND 38 COMP. GEN. 243. THE DISTINCTION BETWEEN RETIRED PAY AND PENSION WAS DISCUSSED IN THE CASE OF LEMLY V. UNITED STATES, 109 CT.CL. 760, 762 (1958). SEE ALSO, STEELMAN V. UNITED STATES, 162 CT.CL. 81 (1963), WHEREIN IT WAS HELD THAT AN ENLISTED MAN IN THE REGULAR NAVY RETIRED FOR YEARS OF SERVICE, WAS NOT ENTITLED TO RECEIVE BOTH RETIRED PAY AND DISABILITY COMPENSATION UNDER THE ..END :