B-162014, AUG. 22, 1967

B-162014: Aug 22, 1967

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MEMBER OF UNIFORMED SERVICES WHO WAS RELEASED FROM DUTY AS MASTER SERGEANT AND RETIRED IN GRADE OF MAJOR UNDER 10 U.S.C. 1201 BECAUSE OF HIS STATUS AS A RESERVE OFFICER COMES WITHIN THE EXEMPTION FROM THE RESTRICTION AGAINST CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION AND HENCE MAY RECEIVE DISABILITY RETIRED PAY AND BENEFITS UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT IN ABSENCE OF DETERMINATION THAT HE SERVED SATISFACTORILY IN THE TEMPORARY RANK OF MAJOR. R. KELLIHER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE DIRECTORATE OF ACCOUNTING AND FINANCE. CAMP WAS RELIEVED OF HIS ASSIGNMENT AND RETIRED IN THE GRADE OF MAJOR UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372.

B-162014, AUG. 22, 1967

ARMED SERVICES - RETIRED PAY - DUAL COMPENSATION - DISABILITY COMPENSATION DECISION TO AIR FORCE COMPTROLLER RE WITHHOLDING OF RETIRED PAY TO MEMBER BECAUSE OF RECEIPT OF CONCURRENT RETIRED PAY AND COMPENSATION UNDER FEDERAL EMPLOYEES COMPENSATION ACT. MEMBER OF UNIFORMED SERVICES WHO WAS RELEASED FROM DUTY AS MASTER SERGEANT AND RETIRED IN GRADE OF MAJOR UNDER 10 U.S.C. 1201 BECAUSE OF HIS STATUS AS A RESERVE OFFICER COMES WITHIN THE EXEMPTION FROM THE RESTRICTION AGAINST CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION AND HENCE MAY RECEIVE DISABILITY RETIRED PAY AND BENEFITS UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT IN ABSENCE OF DETERMINATION THAT HE SERVED SATISFACTORILY IN THE TEMPORARY RANK OF MAJOR. B-136167, FEB. 4, 1963 DISTINGUISHED

TO LIEUTENANT COLONEL J. R. KELLIHER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1967, YOUR FILE ALRA -2, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN THE AMOUNT OF $50 IN FAVOR OF MAJOR DAVID O. CAMP, AO 56 0738, REPRESENTING RETIRED PAY WITHHELD BECAUSE OF CONCURRENT RECEIPT OF RETIRED PAY AND COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE DIRECTORATE OF ACCOUNTING AND FINANCE, AND ASSIGNED AIR FORCE REQUEST NO. DO-AF-955 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 9, SPECIAL ORDERS AB-10955, DATED SEPTEMBER 4, 1962, MASTER SERGEANT DAVID O. CAMP WAS RELIEVED OF HIS ASSIGNMENT AND RETIRED IN THE GRADE OF MAJOR UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372, EFFECTIVE SEPTEMBER 17, 1962. STATEMENT OF SERVICE, DD FORM 13, SHOWS THAT THE MEMBER HAD SERVED IN THE TEMPORARY GRADE OF MAJOR FROM MAY 13, 1954, TO NOVEMBER 30, 1957, AND THAT HE ACCEPTED A PERMANENT APPOINTMENT AS MAJOR, AIR FORCE RESERVE, ON APRIL 3, 1955. CERTIFICATION OF INFORMATION FOR RETIRED PAY, DD FORM 424, SEPTEMBER 6, 1962, LISTS HIS RETIRED GRADE AS MAJOR "/PERM RES GRADE).'

YOU SAY THAT MAJOR CAMP WAS AWARDED FEDERAL EMPLOYEES' COMPENSATION FOR THE PERIOD NOVEMBER 22, 1965, TO JANUARY 30, 1966, AND THAT DURING THE SAME PERIOD HE WAS PAID MILITARY RETIRED PAY IN THE AMOUNT OF $873.63. THE AMOUNT OF $50 COVERED BY THE VOUCHER REPRESENTS THE SUM WITHHELD FROM HIS MAY 1967 RETIRED PAY FOR PARTIAL LIQUIDATION OF AN INDEBTEDNESS BELIEVED TO ARISE BECAUSE OF CONCURRENT RECEIPT OF RETIRED PAY AND FEDERAL EMPLOYEES' COMPENSATION.

WHILE UNDER THE RULE STATED IN 39 COMP. GEN. 321 AND 42 COMP. GEN. 9, MAJOR CAMP SEEMS TO BE EXEMPT FROM THE RESTRICTION AGAINST THE CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION, YOU SEEM TO BELIEVE THAT OUR DECISION B-136167, FEBRUARY 4, 1963, RAISES A DOUBT AS TO WHETHER THE RESTRICTION IS APPLICABLE IN HIS CASE.

SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, CURRENTLY CODIFIED IN 5 U.S.C. 8116 (A), PROVIDES IN PERTINENT PART THAT:

"/A) WHILE AN EMPLOYEE IS RECEIVING COMPENSATION UNDER THIS SUBCHAPTER, OR IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH THE INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE MAY NOT RECEIVE SALARY, PAY, OR REMUNERATION OF ANY TYPE FROM THE UNITED STATES, EXCEPT---

"/1) IN RETURN FOR SERVICE ACTUALLY PERFORMED; AND

"/2) PENSION FOR SERVICE IN THE ARMY, NAVY, OR AIR FORCE.'

IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE ABOVE QUOTED PROVISIONS OF LAW AND EARLIER STATUTORY PROVISIONS FROM WHICH THEY WERE DERIVED BAR PAYMENT OF MILITARY OR NAVAL RETIRED PAY CONCURRENTLY WITH DISABILITY PAYMENTS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING OTHERWISE. SEE 18 COMP. GEN. 747; 38 ID. 243; 40 ID. 660; AND STEELMAN V. UNITED STATES, 162 CT. CL. 81 (1963).

IN THE CASE OF TAWES V. UNITED STATES, 146 CT. CL. 500 (1959), THE COURT HELD THAT FEDERAL EMPLOYEES' COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO" CIVILIAN EMPLOYMENT AND AS SUCH IS WITHIN THE DUAL COMPENSATION EXEMPTION PROVIDED IN SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 238, 239, AS AMENDED, 10 U.S.C. 371 (B) (1952 ED.), CURRENTLY CODIFIED IN 5 U.S.C. 5534. IN DECISION OF OCTOBER 29, 1959, B-122353, B-125936, 39 COMP. GEN. 321, WE AGREED TO FOLLOW THE RULE IN THE TAWES CASE PERMITTING RETIRED MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES TO RECEIVE RETIRED PAY BASED ON RESERVE SERVICE CONCURRENTLY WITH CIVILIAN DISABILITY COMPENSATION. THUS, THE DETERMINATION OF A RETIRED MEMBER'S RIGHT TO THE EXEMPTION TURNS ON THE QUESTION WHETHER HIS RIGHT TO RETIRED PAY ACCRUED TO HIM AS A RESULT OF HIS RESERVE SERVICE OR STATUS.

IN THE CASES OF TRACY V. UNITED STATES, 136 CT. CL. 211 (1956); LOWELL V. UNITED STATES, 141 CT. CL. 111 (1958); BUDD V. UNITED STATES, 141 CT. CL. 123 (1958); AND NERI V. UNITED STATES, 145 CT. CL. 537 (1959), THE COURT HELD THAT THE ACTUAL RANK IN WHICH AN OFFICER IS ENTITLED TO DISABILITY RETIREMENT IS NOT NECESSARILY THE RANK IN WHICH THE OFFICER IS SERVING ON ACTIVE DUTY AT THE TIME OF RETIREMENT. THUS, WHERE A RESERVE OFFICER HOLDING A HIGHER PERMANENT RANK IN THE OFFICER'S RESERVE CORPS IS RETIRED FOR PHYSICAL DISABILITY WHILE SERVING ON ACTIVE DUTY AS A REGULAR ENLISTED MAN OR TEMPORARY OFFICER, HE SHOULD BE RETIRED IN HIS PERMANENT RESERVE RANK. FOLLOWING THIS LINE OF REASONING, WE HELD IN OUR DECISION OF JULY 9, 1962, B-136459, 42 COMP. GEN. 9, 17, THAT A PERSON RETIRED IN HIS HIGHER PERMANENT RESERVE RANK WITH RETIRED PAY COMPUTED ON THE HIGHER RANK, RECEIVES HIS RETIRED PAY UNDER LAWS RELATING TO RESERVE COMPONENTS AND, HENCE, IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION.

THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT A DETERMINATION WAS MADE THAT MAJOR CAMP SERVED SATISFACTORILY IN HIS TEMPORARY RANK OF MAJOR. HENCE, IT APPEARS THAT HE WAS RETIRED IN THE RANK OF MAJOR BECAUSE OF HIS STATUS AS A RESERVE OFFICER. IF THIS IS SO, HIS CASE FALLS WITHIN THE RULE THUS STATED AND HE IS ENTITLED TO EXEMPTION FROM THE RESTRICTION AGAINST CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION.

IN OUR DECISION B-136167 OF FEBRUARY 4, 1963, WE HAD FOR CONSIDERATION THE CASE OF A MEMBER WHO WAS RETIRED OCTOBER 31, 1952, AS MASTER SERGEANT, REGULAR AIR FORCE, UNDER THE ACT OF MARCH 2, 1907, CH. 2515, 34 STAT. 1217, 10 U.S.C. 947 (1952 ED.), AND WAS ADVANCED IMMEDIATELY ON THE RETIRED LIST TO THE GRADE OF CAPTAIN PURSUANT TO SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1086, 10 U.S.C. 1004 (1952 ED.). HE WAS FURTHER ADVANCED ON THE RETIRED LIST TO THE GRADE OF MAJOR PURSUANT TO THE ACT OF MAY 31, 1956, CH. 348, 70 STAT. 222.

SAID SECTION 947 PROVIDED THAT WHEN AN ENLISTED MAN SHALL HAVE SERVED 30 YEARS EITHER IN THE ARMY, NAVY OR MARINE CORPS, OR IN ALL, HE SHALL, UPON MAKING APPLICATION TO THE PRESIDENT, BE PLACED UPON THE RETIRED LIST, AND SECTION 1004 PROVIDED THAT EACH ENLISTED MAN OF THE REGULAR ARMY OR THE REGULAR AIR FORCE HERETOFORE OR HEREAFTER RETIRED UNDER ANY PROVISION OF LAW, SHALL, UPON THE COMPLETION OF 30 YEARS OF SERVICE, BE ADVANCED TO THE HIGHEST TEMPORARY COMMISSIONED, WARRANT, OR ENLISTED GRADE, SATISFACTORILY HELD BY HIM WHILE SERVING ON ACTIVE DUTY, AS DETERMINED BY THE COGNIZANT SECRETARY, DURING THE PERIOD SEPTEMBER 9, 1940, TO JUNE 30, 1946, AND SHALL RECEIVE RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE AT THE TIME OF RETIREMENT BASED UPON SUCH HIGHER TEMPORARY RANK OR GRADE.

THE OFFICER INVOLVED IN THE DECISION OF FEBRUARY 4, 1963, WAS HELD TO BE SUBJECT TO THE DUAL COMPENSATION RESTRICTION FOR THE REASON THAT WHILE HE HELD A RESERVE COMMISSION AS MAJOR HE HAD BEEN RETIRED AS AN ENLISTED MAN AND THAT SINCE HIS ADVANCEMENT ON THE RETIRED LIST WAS PREDICATED ON SATISFACTORY SERVICE UNDER A TEMPORARY OFFICER APPOINTMENT WHILE ON ACTIVE DUTY, HIS RESERVE COMMISSION HAD NO BEARING ON HIS RIGHT TO BE RETIRED OR ON THE COMPUTATION OF HIS RETIRED PAY. APPARENTLY, MAJOR CAMP WAS NOT RETIRED AS A MAJOR BECAUSE OF HIS HAVING SERVED SATISFACTORILY IN THAT TEMPORARY RANK BUT BECAUSE OF HIS RESERVE COMMISSION IN THAT RANK.

ON THE ASSUMPTION THAT THERE HAS BEEN NO DETERMINATION THAT MAJOR CAMP SERVED SATISFACTORILY IN THE TEMPORARY RANK OF MAJOR, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.