B-162880, NOV. 27, 1967

B-162880: Nov 27, 1967

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A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RETIRED PAY BECAUSE OF RESERVE STATUS AND WHO WAS INJURED WHILE EMPLOYED IN A CIVILIAN POSITION COMES UNDER THE RULE IN TAWES V U.S. CL. 500 (1959) THAT FEDERAL EMPLOYEES' DISABILITY COMPENSATION IS "PAY INCIDENT TO" CIVILIAN EMPLOYMENT AND AS SUCH COMES WITHIN THE DUAL PAYMENT EXEMPTION FOR RESERVE OFFICERS. 39 C.G. 321. RETIRED: WE HAVE YOUR LETTER DATED OCTOBER 28. THAT AN APPLICATION IS PENDING FOR "WORKMEN'S COMPENSATION. " THAT YOU HAVE BEEN INFORMED THROUGH DA PAMPHLET 600-1. UPON WHICH PAMPHLET 600-1 APPARENTLY IS BASED. A CIVILIAN GOVERNMENT EMPLOYEE'S RIGHT TO RECEIVE OTHER MONETARY BENEFITS WHILE IN RECEIPT OF DISABILITY COMPENSATION ON ACCOUNT OF INJURY SUFFERED IN LINE OF DUTY IS LIMITED BY THE PROHIBITION CONTAINED IN SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7.

B-162880, NOV. 27, 1967

ARMED SERVICES - RETIRED PAY - DUAL COMPENSATION - DISABILITY COMPENSATION DECISION TO RETIRED OFFICER, AUS, CONCERNING PROHIBITION AGAINST CONCURRENT RECEIPT OF MILITARY RETIRED PAY AND DISABILITY COMPENSATION UNDER 5 U.S.C. 8116 (A). A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RETIRED PAY BECAUSE OF RESERVE STATUS AND WHO WAS INJURED WHILE EMPLOYED IN A CIVILIAN POSITION COMES UNDER THE RULE IN TAWES V U.S., 146 CT. CL. 500 (1959) THAT FEDERAL EMPLOYEES' DISABILITY COMPENSATION IS "PAY INCIDENT TO" CIVILIAN EMPLOYMENT AND AS SUCH COMES WITHIN THE DUAL PAYMENT EXEMPTION FOR RESERVE OFFICERS. 39 C.G. 321.

TO CAPTAIN ARNOLD L. WETZSTEIN, AUS, RETIRED:

WE HAVE YOUR LETTER DATED OCTOBER 28, 1967, CONCERNING THE PROHIBITION AGAINST CONCURRENT RECEIPT OF MILITARY RETIRED PAY AND DISABILITY COMPENSATION UNDER PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT CURRENTLY CODIFIED IN 5 U.S.C. 8116 (A).

YOU SAY THAT YOU SUSTAINED AN INJURY ON MAY 30, 1967, WHILE EMPLOYED BY THE FEDERAL GOVERNMENT; THAT AN APPLICATION IS PENDING FOR "WORKMEN'S COMPENSATION; " THAT YOU HAVE BEEN INFORMED THROUGH DA PAMPHLET 600-1, DATED OCTOBER 1965, THAT AS A MILITARY RETIREE YOU MUST CHOOSE BETWEEN PAYMENTS OF CIVILIAN EMPLOYEES' DISABILITY COMPENSATION AND YOUR MILITARY RETIRED PAY; AND THAT YOU INTERPRET 5 U.S.C. 757 (1964 ED./--NOW 5 U.S.C. 8116 (A/--AS EXEMPTING PENSIONS RECEIVED BY RETIRED MILITARY PERSONNEL FOR SERVICES IN THE ARMY AND NAVY OF THE UNITED STATES. YOU ASK FOR AN EXPLANATION OF THE UNDERLYING REASONS FOR OUR DECISION (S/--UPON WHICH PAMPHLET 600-1 APPARENTLY IS BASED--PROHIBITING RETIRED MILITARY MEMBERS FROM RECEIVING DUAL PAYMENTS.

A CIVILIAN GOVERNMENT EMPLOYEE'S RIGHT TO RECEIVE OTHER MONETARY BENEFITS WHILE IN RECEIPT OF DISABILITY COMPENSATION ON ACCOUNT OF INJURY SUFFERED IN LINE OF DUTY IS LIMITED BY THE PROHIBITION CONTAINED IN SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, CURRENTLY CODIFIED IN 5 U.S.C. 8116 (A), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/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. HOWEVER, ELIGIBILITY FOR OR RECEIPT OF BENEFITS UNDER SUBCHAPTER III (CIVIL SERVICE RETIREMENT) OF CHAPTER 83 OF THIS TITLE, OR ANY OTHER FEDERAL ACT OR PROGRAM PROVIDING RETIREMENT BENEFITS FOR EMPLOYEES, DOES NOT IMPAIR THE RIGHT OF THE EMPLOYEE TO COMPENSATION FOR SCHEDULED DISABILITIES SPECIFIED BY SECTION 8107 (C) OF THIS TITLE.'

THERE IS NO NEED TO DISCUSS THE DECISIONS IN WHICH YOU ARE INTERESTED SINCE IT APPEARS THAT THERE IS NO BASIS TO QUESTION YOUR RIGHT TO RETIRED PAY WHILE YOU ARE IN RECEIPT OF DISABILITY COMPENSATION.

BY PARAGRAPH 42, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 215, DATED OCTOBER 28, 1958, ISSUED WHILE YOU WERE SERVING AS A CAPTAIN IN THE ARMY OF THE UNITED STATES, YOU WERE, UPON YOUR APPLICATION, RETIRED FROM ACTIVE DUTY UNDER THE PROVISIONS OF 10 U.S.C. 3911 AFTER MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE EFFECTIVE NOVEMBER 1, 1958. THE ORDERS SHOW THAT AT THE TIME OF YOUR RETIREMENT, YOU ALSO HELD A COMMISSION AS CAPTAIN, TRANSPORTATION CORPS, U.S. ARMY RESERVE. THE RETIRED PAY TO WHICH YOU THEN BECAME ENTITLED WAS NOT A "PENSION" WITHIN THE MEANING OF THAT TERM AS USED IN THE ABOVE- QUOTED PROVISIONS OF LAW.

WE SAID IN DECISION, B-136459, JULY 9, 1962, 42 COMP. GEN. 9, 13, THAT:

"A PERSON SERVING ON ACTIVE DUTY IN A TEMPORARY COMMISSIONED GRADE UNDER THE OFFICER PERSONNEL ACT MAY NOT BE RETIRED PURSUANT TO SECTION 202 OF THE ACT OF JUNE 29, 1948, 10 U.S.C. 943A (1952 ED.), OR THE SIMILAR PROVISIONS CONTAINED IN 10 U.S.C. 3911, 8911, UNLESS HE ALSO HOLDS A RESERVE COMMISSION. RETIREMENT IS AUTHORIZED IN AN OTHERWISE PROPER CASE UNDER SUCH PROVISIONS OF LAW EVEN THOUGH THE OFFICER IS NOT SERVING ON ACTIVE DUTY IN HIS RESERVE STATUS. 28 COMP. GEN. 655. RETIREMENT IN SUCH CASE IS ACCOMPLISHED IN THE RESERVE GRADE HELD ON THE DATE OF RETIREMENT. 10 U.S.C. 3961. CLEARLY, AN OFFICER SO RETIRED WHILE SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE UNDER THE OFFICER PERSONNEL ACT WHICH WAS LOWER THAN, OR THE SAME AS, HIS RESERVE COMMISSIONED GRADE, IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION OF THE ECONOMY ACT UNDER SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AND SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, SINCE HE IS ENTITLED TO RETIRED PAY BECAUSE OF HIS RESERVE STATUS AND UNDER LAWS RELATING TO RESERVE COMPONENTS OF THE ARMED SERVICES.'

SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CHAPTER 192, 61 STAT. 239, AS AMENDED, 10 U.S.C. 371 (B) (1952 ED.), CURRENTLY CODIFIED IN 5 U.S.C. 5534, PROVIDED THAT NO EXISTING LAW SHOULD BE CONSTRUED TO PREVENT ANY MEMBER OF THE OFFICERS' RESERVE CORPS FROM RECEIVING "PAY INCIDENT TO" CIVILIAN EMPLOYMENT WITH THE GOVERNMENT AND ALSO THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER THE LAWS RELATING TO THE OFFICERS' RESERVE CORPS.

IN THE CASE OF TAWES V. UNITED STATES, 146 CT. CL. 500 (1959), THE COURT HELD THAT FEDERAL EMPLOYEES' DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT IS "PAY INCIDENT TO" CIVILIAN EMPLOYMENT AND AS SUCH IS WITHIN THE DUAL PAYMENT EXEMPTION PROVIDED IN SECTION 1 (B) OF THE ACT OF JULY 1, 1947, FOR MEMBERS OF THE OFFICERS' RESERVE CORPS. SINCE YOU ARE ENTITLED TO RETIRED PAY BECAUSE OF YOUR RESERVE STATUS, YOUR CASE FALLS WITHIN THE RULE OF THE TAWES CASE AND YOU ARE ENTITLED TO THE SIMILAR EXEMPTION FROM THE RESTRICTION AGAINST THE CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION CONTAINED IN 5 U.S.C. 5534. SEE 39 COMP. GEN. 321.