B-160995, APRIL 21, 1967, 46 COMP. GEN. 761

B-160995: Apr 21, 1967

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MILITARY PERSONNEL - RETIRED - CIVILIAN SERVICE - CIVILIAN DISABILTY COMPENSATION AND MILITARY RETIRED PAY THE RECEIPT OF RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT BY AN OFFICER OF THE UNIFORMED SERVICES WHO WHEN TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 WAS A MEMBER OF A RESERVE COMPONENT. WHO PERMANENTLY RETIRED FOR PHYSICAL DISABILITY PURSUANT TO 10 U.S.C. 1201 IS RECEIVING RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 IS NOT PROHIBITED. EVEN THOUGH THE MILITARY STATUTORY PROVISIONS ARE EQUALLY APPLICABLE TO MEMBERS OF REGULAR AND RESERVE COMPONENTS. 1967: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10.

B-160995, APRIL 21, 1967, 46 COMP. GEN. 761

MILITARY PERSONNEL - RETIRED - CIVILIAN SERVICE - CIVILIAN DISABILTY COMPENSATION AND MILITARY RETIRED PAY THE RECEIPT OF RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT BY AN OFFICER OF THE UNIFORMED SERVICES WHO WHEN TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST UNDER 10 U.S.C. 1202 WAS A MEMBER OF A RESERVE COMPONENT, AND WHO PERMANENTLY RETIRED FOR PHYSICAL DISABILITY PURSUANT TO 10 U.S.C. 1201 IS RECEIVING RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 IS NOT PROHIBITED, EVEN THOUGH THE MILITARY STATUTORY PROVISIONS ARE EQUALLY APPLICABLE TO MEMBERS OF REGULAR AND RESERVE COMPONENTS, THE RETIRED PAY ACCRUING TO THE OFFICER BY VIRTUE OF HIS RESERVE STATUS CONSTITUTING "PAY AND ALLOWANCES AS A RESERVE" WITHIN THE MEANING OF 5 U.S.C. 30R (C), NOW 5 U.S.C. 5534, PROVIDING EXEMPTION BENEFITS FOR RESERVISTS. THEREFORE, THE OFFICER MAY RECEIVE RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION CONCURRENTLY.

TO MAJOR C. C. CRAIG, DEPARTMENT OF THE NAVY, APRIL 21, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 10, 1967 (FILE REFERENCE CDH-HAB), REQUESTING AN ADVANCE DECISION WHETHER MAJOR CHARLES A. MERRILL, 048892, U.S. MARINE CORPS, RETIRED, IS PROHIBITED FROM RECEIVING RETIRED PAY CONCURRENTLY WITH THE RECEIPT OF DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IN THE CIRCUMSTANCES STATED BELOW. YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED MARCH 2, 1967, AND HAS BEEN ASSIGNED CONTROL NUMBER DO-NC-943 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT MAJOR MERRILL WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 1, 1960; THAT HE WAS PERMANENTLY RETIRED FOR PHYSICAL DISABILITY ON FEBRUARY 1, 1965; AND THAT ON JULY 16, 1966, WHILE EMPLOYED AS A CIVILIAN EMPLOYEE OF THE UNITED STATES GOVERNMENT, HE SUSTAINED AN INJURY WHICH ENTITLED HIM TO DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 8102 NOTE.

YOU REFER TO A LETTER DATED OCTOBER 11, 1966, FROM THE BUREAU OF EMPLOYEES' COMPENSATION, U.S. DEPARTMENT OF LABOR, JACKSONVILLE, FLORIDA (COPY OF WHICH YOU ENCLOSED), WHICH ADVISED THE MARINE CORPS, IN SUBSTANCE, THAT THE PERIOD OF MAJOR MERRILL'S DISABILITY IS INDETERMINATE AND THAT HE WAS PAID DISABILITY COMPENSATION FOR THE PERIOD JULY 29, 1966, THROUGH SEPTEMBER 8, 1966. YOU SAY THAT RETIRED PAY HAD ALREADY BEEN PAID FOR THIS SAME PERIOD AND THAT DISABILITY COMPENSATION HAS NOT BEEN PAID FOR ANY PERIOD AFTER SEPTEMBER 8, 1966. ON OCTOBER 18, 1966, YOU ADVISED THE BUREAU OF EMPLOYEES' COMPENSATION THAT THE QUESTION OF MAJOR MERRILL'S RIGHT TO RECEIVE RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION WAS BEING SUBMITTED TO THE COMPTROLLER GENERAL FOR RESOLUTION. YOU FURTHER STATE THAT ON OCTOBER 20, 1966, MAJOR MERRILL ELECTED (IN THE EVENT HE WAS NOT ENTITLED TO BOTH BENEFITS) TO RECEIVE RETIRED PAY RATHER THAN DISABILITY COMPENSATION--- THE RETIRED PAY BEING THE GREATER OF THE TWO BENEFITS--- AND YOU EXPRESS THE VIEW THAT THIS ELECTION ENTITLED HIM TO THE CONTINUOUS AND CONTINUING PAYMENT OF RETIRED PAY.

YOU EXPRESS DOUBT AS TO WHETHER MAJOR MERRILL IS PROHIBITED FROM RECEIVING RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION IN VIEW OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF TAWES V. UNITED STATES, 146 CT. CL. 500 (1959). YOU SAY THAT WHILE MAJOR MERRILL WAS A MEMBER OF THE RESERVE COMPONENT WHEN HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST, HE WAS TRANSFERRED TO SUCH LIST PURSUANT TO 10 U.S.C. 1202; THAT HE WAS PERMANENTLY RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201; AND THAT HE RECEIVES RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401. SINCE THOSE STATUTORY PROVISIONS ARE EQUALLY APPLICABLE TO MEMBERS OF THE REGULAR AND RESERVE COMPONENTS, YOU EXPRESS DOUBT AS TO "WHETHER MAJOR MERRILL RECEIVES -PAY AND ALLOWANCES AS A RESERVE- WITHIN THE MEANING OF 5 U.S.C. 30R (C), AND WHETHER THE TAWES RULE IS APPLICABLE TO HIM.' CONSEQUENTLY, YOU ASK:

A. WHETHER MAJOR MERRILL IS PROHIBITED FROM RECEIVING RETIRED PAY CONCURRENTLY WITH THE RECEIPT OF DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT.

B. IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, WHETHER MAJOR MERRILL IS ENTITLED TO PAY IN LIEU OF COMPENSATION FOR THE PERIOD 29 JULY-8 SEPTEMBER 1966, BY VIRTUE OF HIS ,ELECTION" OF 20 OCTOBER 1966.

SECTION 7 (A) OF THE FEDERAL EMPLOYEE'S COMPENSATION ACT OF SEPTEMBER 7, 1916, CH. 458, 39 STAT. 743, AS AMENDED, 5 U.S.C. 757 (A) (1964 D./--- CURRENTLY CODIFIED IN 5 U.S.C. 8116 (A/--- PROVIDED IN PERTINENT PART, AS FOLLOWS:

(A) AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751-756, 757-781, 783-791 AND 793 OF THIS TITLE, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES * * *.

IT LONG HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT DISABILITY COMPENSATION PAYMENTS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT MAY NOT BE MADE TO A PERSON CONCURRENTLY WITH THE PAYMENT OF MILITARY OR NAVAL RETAINER OR RETIRED PAY IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING. SEE 40 COMP. GEN. 660.

WITH RESPECT TO A RESERVE OF THE ARMED FORCES, SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (C) (1964 ED./ -- CURRENTLY CODIFIED IN 5 U.S.C. 5534--- PROVIDED THAT "ANY RESERVE * * * MAY ACCEPT ANY CIVILIAN POSITION UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND MAY RECEIVE THE PAY INCIDENT TO THAT EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES AS A RESERVE * * *.' IN CONSTRUING A SUBSTANTIALLY SIMILAR PROVISION (FORMERLY CONTAINED IN 10 U.S.C. 371B (1952ED.) (, THE COURT OF CLAIMS IN THE TAWES CASE CITED ABOVE, HELD THAT THE PLAINTIFF WAS ENTITLED TO BE PAID RETIRED PAY (BASED ON SERVICE IN THE NAVAL RESERVE) UNDER TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087, 10 U.S.C. 1036 (1952 ED./--- WHICH APPLIED TO RETIRED PAY FOR NONREGULAR SERVICE--- CONCURRENTLY WITH THE RECEIPT OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT. THE COURT'S CONCLUSION WAS BASED ON THE THEORY THAT THE MONEY ALLOWANCE PAID UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT WAS "PAY INCIDENT TO SUCH (CIVILIAN) EMPLOYMENT" WITHIN THE MEANING OF 10 U.S.C. 371B (1952 ED.).

WHILE THE DISABILITY RETIREMENT PROVISIONS IN 10 U.S.C. 1201, 1202, AND THE RETIRED PAY COMPUTATION PROVISION IN 10 U.S.C. 1401--- WHICH ARE APPLICABLE IN MAJOR MERRILL'S CASE--- RELATE EQUALLY TO MEMBERS OF THE REGULAR AND RESERVE COMPONENTS, THAT CIRCUMSTANCE DOES NOT IN ANY WAY LESSEN THE FACT THAT THOSE PROVISIONS OF LAW ARE APPLICABLE TO RESERVE AND, THEREFORE, AN OTHERWISE QUALIFIED RESERVIST RECEIVING RETIRED PAY UNDER THOSE PROVISIONS OF LAW WOULD BE CONSIDERED AS RECEIVING "PAY AND ALLOWANCES AS A RESERVE" WITHIN THE MEANING OF 5 U.S.C. 30R (C) PROVIDING EXEMPTION BENEFITS FOR RESERVISTS. WHETHER MAJOR MERRILL COMES WITHIN THE PURVIEW OF THE TAWES CASE AND 5 U.S.C. 30R (C) SO AS TO ENTITLE HIM TO RECEIVE RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT DEPENDS UPON THE STATUS HELD BY THE OFFICER AT THE TIME OF HIS RETIREMENT. COMPARE 40 COMP. GEN. 660 AND 43 ID. 320.

SINC IT IS REPORTED THAT MAJOR MERRILL WAS A MEMBER OF THE RESERVE COMPONENT OF THE MARINE CORPS WHEN HE TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 1, 1960 (SEE ALSO PAGE 526, REGISTER OF RETIRED NAVY AND MARINE CORPS OFFICERS, JULY 1, 1966), AND SINCE WE HAVE BEEN INFORMALLY ADVISED THAT AT THE TIME OF SUCH TRANSFER AND RETIREMENT HE WAS SERVING ON ACTIVE DUTY IN HIS CAPACITY AS A RESERVIST, IT IS OUR VIEW THAT THE RETIRED PAY HE IS RECEIVING ACCRUED TO HIM SOLELY BY VIRTUE OF HIS RESERVE STATUS. COMPARE B-151425, JUNE 19, 1963, COPY ENCLOSED. IN SUCH CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED THAT SUCH RETIRED PAY CONSTITUTES "PAY AND ALLOWANCES AS A RESERVE" WITHIN THE MEANING OF THAT TERM AS USED IN 5 U.S.C. 30R (C). ACCORDINGLY, THE OFFICER IS ENTITLED TO RECEIVE HIS RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT. QUESTION A IS ANSWERED IN THE NEGATIVE AND FOR THAT REASON NO ANSWER IS REQUIRED TO QUESTION B. ..END :