B-159720, AUG. 12, 1966

B-159720, AUG. 12, 1966

TO LIEUTENANT KERG B. KEY, USN, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 12, 1966, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 17, 1965, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF MILITARY RETIRED PAY WITHHELD FROM YOU WHILE YOU WERE EMPLOYED BY THE GOVERNMENT.

THE RECORD SHOWS THAT YOU ENLISTED IN THE NAVY ON APRIL 8, 1919; THAT AFTER SERVING SUCCESSIVE TERMS OF ENLISTMENT, YOU WERE TRANSFERRED TO THE FLEET RESERVE ON JUNE 30, 1939; THAT YOU WERE RECALLED TO ACTIVE DUTY ON JUNE 16, 1941, AND SERVED THROUGH MARCH 20, 1946, AT WHICH TIME YOUR TEMPORARY COMMISSION AS A LIEUTENANT WAS TERMINATED AND YOU REVERTED TO YOUR PERMANENT ENLISTED GRADE; THAT YOU WERE TRANSFERRED TO THE RETIRED LIST ON MARCH 1, 1949; AND THAT BY LETTER DATED MARCH 21, 1949, THE SECRETARY OF THE NAVY ADVISED YOU THAT YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT FROM THE DATE OF YOUR RETIREMENT. APPEARS THAT YOUR RETIRED PAY WAS WITHHELD DURING THE PERIODS FROM MARCH 1, 1949, TO OCTOBER 14, 1949, AND FROM NOVEMBER 1, 1956, TO NOVEMBER 30, 1964, DUE TO THE RESTRICTIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED.

YOUR CLAIM FOR THE RETIRED PAY WITHHELD FOR THE PERIOD PRIOR TO JULY 19, 1955, WAS DISALLOWED FOR THE REASON THAT THE ACT OF OCTOBER 9, 1940, CHAPTER 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, FOREVER BARS ALL CLAIMS AGAINST THE UNITED STATES IF NOT RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. YOUR CLAIM WAS FIRST RECEIVED IN THIS OFFICE JULY 19, 1965. THE BALANCE OF YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT WHILE YOU WERE RETIRED AS AN ENLISTED MAN YOU WERE IN RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER AND YOU WERE SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED.

YOUR CLAIM IS APPARENTLY BASED ON YOUR INTERPRETATION OF OUR DECISION OF NOVEMBER 23, 1964, B-155251, 44 COMP. GEN. 297. WE THERE POINTED OUT THAT ENLISTED MEMBERS WHO UPON RETIREMENT ARE ADVANCED ON THE RETIRED LIST TO AN OFFICER GRADE UNDER A SPECIFIC PROVISION OF LAW AUTHORIZING SUCH ADVANCEMENT BY REASON OF SATISFACTORY SERVICE PERFORMED IN A HIGHER TEMPORARY GRADE GENERALLY HAVE BEEN REGARDED AS RETAINING THEIR ENLISTED STATUS AND THUS HOLDING THE "OFFICE" OF AN ENLISTED MEMBER. AS SUCH, THEY WERE EXEMPT FROM THE DUAL EMPLOYMENT RESTRICTIONS IN SECTION 2 OF THE ACT OF JULY 31, 1894, CHAPTER 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62 (1958 ED.) BY REASON OF THE ACT OF MAY 31, 1924, CHAPTER 214, 43 STAT. 245, WHICH AMENDED THE 1894 ACT TO PROVIDE SUCH EXEMPTION. WE THUS HELD THAT SUCH MEMBERS ARE NOT SUBJECT TO THE LIMITATION IN SECTION 201 OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484. YOU SAY THAT AT NO TIME DID YOU EVER CONSIDER YOURSELF A CAREER NAVAL OFFICER.

YOU WERE ADVANCED ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 10 (A) OF THE ACT OF JULY 24, 1941, CHAPTER 320, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CHAPTER 34, 60 STAT. 28, WHICH PROVIDED AS FOLLOWS:

"PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.'

FOLLOWING YOUR ADVANCEMENT ON THE RETIRED LIST TO THE GRADE OF LIEUTENANT, YOU BECAME ENTITLED TO RETIRED PAY BASED ON YOUR OFFICER GRADE AND THUS RECEIVED YOUR RETIRED PAY THEREAFTER FOR AND ON ACCOUNT OF YOUR SERVICE AS AN OFFICER. IN THAT STATUS YOU BECAME SUBJECT TO SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A 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 * * * 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; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM, SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. * * *.'

THE EXEMPTIONS PROVIDED IN 5 U.S.C. 59A (B) APPLIED ONLY TO LIMITED CATEGORIES OF DISABLED RETIRED MEMBERS AND HAVE NO BEARING ON YOUR CASE. FOR A COMPLETE DISCUSSION OF THE APPLICATION OF THE FORMER DUAL COMPENSATION STATUTES TO MEMBERS IN YOUR SITUATION SEE B-61122, OCTOBER 28, 1946, 26 COMP. GEN. 271, COPY ENCLOSED, WITH PARTICULAR ATTENTION TO ANSWER TO QUESTION (B). THE RULES LAID DOWN IN THAT DECISION WERE FOLLOWED UNTIL THE REPEAL OF THE 1894 AND 1932 ACTS BY THE DUAL COMPENSATION ACT OF 1964.

OUR DECISION OF NOVEMBER 23, 1964, CONSIDERED THE APPLICATION OF SECTION 201 (A) OF THE 1964 ACT FROM ITS EFFECTIVE DATE, DECEMBER 1, 1964, AND DID NOT DISCUSS DUAL COMPENSATION QUESTIONS COVERING PRIOR PERIODS. THE 1964 ACT CONTAINS NO PROVISION WHICH WOULD PERMIT REFUND OF RETIRED PAY PROPERLY WITHHELD FROM YOU, THE EXEMPTION PROVISIONS CONTAINED IN SECTION 201 (G) OF THAT ACT HAVING NO APPLICATION TO YOU.

SINCE IT IS CLEAR THAT YOU BECAME ENTITLED TO RETIRED PAY " FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER," THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932 WERE APPLICABLE AND THE WITHHOLDING OF YOUR RETIRED PAY PURSUANT TO THAT ACT WAS PROPER UNTIL IT WAS REPEALED ON DECEMBER 1, 1964. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 17, 1965, IS SUSTAINED.