B-171326, MAR 5, 1971, 50 COMP GEN 604

B-171326: Mar 5, 1971

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EUROPE - A LOCAL NONAPPROPRIATED FUND ACTIVITY - IS A POSITION SUBJECT TO THE REDUCTION OF RETIRED PAY PRESCRIBED BY 5 U.S.C. 5532(B). A REDUCTION IS NOT REQUIRED IN THE OFFICER'S RETIRED PAY AS THE REDUCTION WOULD EXCEED THE AMOUNT THE OFFICER RECEIVES FROM HIS CIVILIAN EMPLOYMENT WITH AN ADDITIONAL REDUCTION IN RETIRED PAY. A RESULT THAT IS NOT WITHIN THE CONTEMPLATION OF THE DUAL COMPENSATION ACT OF 1964. FOR IT IS UNREASONABLE TO REQUIRE THE RETIRED OFFICER TO ACCEPT A SMALLER AMOUNT AFTER EMPLOYMENT IN A CIVILIAN POSITION WITH THE GOVERNMENT THAN THE AMOUNT OF RETIRED PAY HE WAS RECEIVING BEFORE THAT TIME. THE PURPOSE OF THE STATUTE RATHER THAN ITS LITERAL WORDS WILL BE FOLLOWED. 1971: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF COLONEL ASA C.

B-171326, MAR 5, 1971, 50 COMP GEN 604

PAY - RETIRED - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY ALTHOUGH THE CIVILIAN POSITION HELD BY A RETIRED OFFICER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES IN THE UNITED STATES ARMY SPECIAL SERVICES AGENCY, EUROPE - A LOCAL NONAPPROPRIATED FUND ACTIVITY - IS A POSITION SUBJECT TO THE REDUCTION OF RETIRED PAY PRESCRIBED BY 5 U.S.C. 5532(B), A REDUCTION IS NOT REQUIRED IN THE OFFICER'S RETIRED PAY AS THE REDUCTION WOULD EXCEED THE AMOUNT THE OFFICER RECEIVES FROM HIS CIVILIAN EMPLOYMENT WITH AN ADDITIONAL REDUCTION IN RETIRED PAY, A RESULT THAT IS NOT WITHIN THE CONTEMPLATION OF THE DUAL COMPENSATION ACT OF 1964, FOR IT IS UNREASONABLE TO REQUIRE THE RETIRED OFFICER TO ACCEPT A SMALLER AMOUNT AFTER EMPLOYMENT IN A CIVILIAN POSITION WITH THE GOVERNMENT THAN THE AMOUNT OF RETIRED PAY HE WAS RECEIVING BEFORE THAT TIME. STATUTORY CONSTRUCTION - LEGISLATIVE INTENT - STATUTE AS A WHOLE WHEN GIVING EFFECT TO THE PLAIN MEANING OF WORDS IN A STATUTE LEADS TO AN ABSURD OR UNREASONABLE RESULT CLEARLY AT VARIANCE WITH THE POLICY OF THE LEGISLATION AS A WHOLE, THE PURPOSE OF THE STATUTE RATHER THAN ITS LITERAL WORDS WILL BE FOLLOWED.

TO THE SECRETARY OF THE ARMY, MARCH 5, 1971:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF COLONEL ASA C. BLACK, UNITED STATES ARMY, RETIRED, WHICH IS BASED ON THE COLLECTION ACTION BEING TAKEN AGAINST HIM AS A RESULT OF A DETERMINATION BY ARMY AUTHORITIES THAT HIS EMPLOYMENT WITH THE UNITED STATES ARMY SPECIAL SERVICES AGENCY, EUROPE, IN A LOCAL NATIONAL NONAPPROPRIATED FUNDS POSITION DURING THE PERIOD NOVEMBER 6, 1967, THROUGH JUNE 4, 1969, WAS EMPLOYMENT BY THE UNITED STATES GOVERNMENT WITHIN THE PURVIEW OF THE DUAL PAY PROVISIONS OF LAW CONTAINED IN 5 U.S.C. 5531-5537.

SECTION 5531(2) OF TITLE 5 PROVIDES:

(2) "POSITION" MEANS A CIVILIAN OFFICE OR POSITION (INCLUDING A TEMPORARY, PART-TIME, OR INTERMITTENT POSITION), APPOINTIVE OR ELECTIVE, IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES (INCLUDING A GOVERNMENT CORPORATION AND A NON-APPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES) OR IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

SECTION 5532(B) PROVIDES, IN PERTINENT PART, THAT:

(B) A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE WHO HOLDS A POSITION IS ENTITLED TO RECEIVE THE FULL PAY OF THE POSITION, BUT DURING THE PERIOD FOR WHICH HE RECEIVED PAY, HIS RETIRED OR RETIREMENT PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF THE RETIRED OR RETIREMENT PAY PLUS ONE-HALF OF THE REMAINDER IF ANY. ***

WE DO NOT QUESTION THE DETERMINATION MADE BY THE DEPARTMENT OF THE ARMY THAT COLONEL BLACK HELD A POSITION WITHIN THE MEANING OF SECTION 5532(B) DURING THE ABOVE-MENTIONED PERIOD. WHILE HE ALSO APPEARS TO TAKE THE SAME POSITION, HE OBJECTS TO THE CONCLUSION THAT BECAUSE OF THE DUAL PAY SITUATION WHICH RESULTED FROM HIS EMPLOYMENT DURING THE PERIOD DECEMBER 6, 1967, THROUGH AUGUST 31, 1969 - HIS EMPLOYMENT FROM JUNE 5 THROUGH AUGUST 31, 1969, APPARENTLY WAS IN A "USNAF POSITION WITH THE OPERATIONS DIVISION" OF THE ABOVE-MENTIONED AGENCY - HIS RETIRED PAY SHOULD HAVE BEEN REDUCED IN THE AMOUNT OF $7,904.06. SINCE THAT AMOUNT EXCEEDS BY APPROXIMATELY $3,000 THE PAY HE RECEIVED FROM HIS CIVILIAN EMPLOYMENT, IT APPEARS THAT THE COLLECTION OF THAT SUM WILL HAVE THE NET EFFECT OF REDUCING THE COMPENSATION FROM HIS CIVILIAN EMPLOYMENT TO ZERO AND REQUIRING AN ADDITIONAL REDUCTION OF APPROXIMATELY $3,000 IN HIS RETIRED PAY. IT APPEARS THAT NO DUAL PAY SITUATION WAS INVOLVED DURING THE FIRST 30 DAYS OF HIS PART-TIME EMPLOYMENT, THAT IS, DURING THE PERIOD NOVEMBER TO DECEMBER 5, 1967. SEE SECTION 5532(C)(2).

ALTHOUGH A LITERAL INTERPRETATION OF THE LANGUAGE USED IN 5 U.S.C. 5532(B) MAY SEEM TO REQUIRE THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN THIS CASE, IT IS OUR VIEW THAT THE CONGRESS DID NOT INTEND THAT ANY RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE SHOULD RECEIVE A SMALLER AMOUNT (TOTAL OF RETIRED PAY PLUS CIVILIAN COMPENSATION) AFTER ACCEPTING A CIVILIAN POSITION WITH THE GOVERNMENT, THEN THE AMOUNT OF RETIRED PAY HE WAS RECEIVING BEFORE THAT TIME. IT APPEARS REASONABLY CLEAR THAT IN PERMITTING DUAL PAY, THE CONGRESS MUST HAVE INTENDED THAT SUCH PAY WOULD INCREASE OR, AT THE VERY LEAST, WOULD NOT REDUCE THE INCOME OF THE OFFICER INVOLVED AT THE TIME HE ACCEPTED THE CIVILIAN EMPLOYMENT.

THE COURTS HAVE OFTEN HELD THAT WHEN GIVING EFFECT TO THE PLAIN MEANING OF WORDS IN A STATUTE LEADS TO AN ABSURD OR UNREASONABLE RESULT CLEARLY AT VARIANCE WITH THE POLICY OF THE LEGISLATION AS A WHOLE, THE PURPOSE OF THE STATUTE, RATHER THAN ITS LITERAL WORDS WILL BE FOLLOWED. PERRY V. COMMERCE LOAN CO., 383 U.S. 392 (1966). SEE ALSO UNITED STATES V AMERICAN TRUCKING ASSOCIATION, INC., 310 U.S. 534 (1940), AND TAKAO OZAWA V UNITED STATES, 260 U.S. 178 (1922).

THE GENERAL PURPOSES OF THE DUAL COMPENSATION ACT OF 1964 - NOW CODIFIED IN 5 U.S.C 5531-5537 - AS EXPRESSED BY THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, ON PAGE 2 OF REPORT NO. 890, NOVEMBER 7, 1963 (TO ACCOMPANY H. R. 7381, 81ST CONGRESS, 1ST SESSION), WERE TO CODIFY ALL EXISTING DUAL COMPENSATION AND DUAL EMPLOYMENT LAWS INTO ONE LAW, WHICH WOULD BE RELATIVELY SIMPLE TO INTERPRET AND ADMINISTER; WOULD ELIMINATE THE HARDSHIPS CAUSED INDIVIDUALS AS A RESULT OF GOOD FAITH MISUNDERSTANDINGS OF THE APPLICATION OF THE LAW; AND WOULD PROVIDE EQUITABLE TREATMENT FOR ALL RETIRED MILITARY PERSONNEL WITH RESPECT TO THEIR EMPLOYMENT IN FEDERAL CIVILIAN POSITIONS.

THE PRIME FUNCTION OF EARLIER DUAL COMPENSATION PROVISIONS INVOLVING RETIRED MILITARY PERSONNEL WAS TO PUT A LIMITATION ON THE TOTAL AMOUNT OF COMPENSATION OR PAY WHICH MAY BE PAID TO A RETIRED MILITARY MEMBER WHO ACCEPTS A CIVILIAN POSITION WITH THE GOVERNMENT. IN SECTION 212 OF THE 1932 ECONOMY ACT, 5 U.S.C. 59A (1952 ED), ONE OF THE STATUTES REPEALED BY THE 1964 ACT, THAT LIMITATION WAS FIXED AT $3,000 PER YEAR (LATER INCREASED TO $10,000). IT WAS PHRASED IN TERMS OF CIVILIAN SALARY, PLUS SUFFICIENT RETIRED PAY TO EQUAL THE STATUTORY LIMITATION. IF THE CIVILIAN SALARY EXCEEDED THE LIMITATION AND RETIRED PAY WAS LESS, NO RIGHT ACCRUED TO RETIRED PAY. IF THE RETIRED PAY EXCEEDED THE LIMITATION, THE PERSON CONCERNED COULD ELECT TO RECEIVE RETIRED PAY. WHATEVER THE CIRCUMSTANCES, HE COULD NOT GET LESS THAN HIS RETIRED PAY. THUS, BOTH A MAXIMUM AND A MINIMUM WERE PUT ON THE TOTAL AMOUNT A RETIRED MEMBER COULD RECEIVE BY ACCEPTING A CIVILIAN JOB WITH THE GOVERNMENT.

THE INTENT OF THE CONGRESS AS TO THIS TYPE OF SITUATION WAS MADE CLEAR IN THE 1932 ACT AND SINCE THE INTENT OF THE 1964 ACT WAS TO INCORPORATE THE 1932 ACT AND OTHER LAWS INTO ONE LAW WHICH WOULD PROVIDE FAIR TREATMENT TO RETIRED MILITARY PERSONNEL, IT WOULD APPEAR IMPROPER TO IMPUTE TO THE CONGRESS AN INTENT TO CHANGE THE LAW IN A MANNER WHICH COULD PRODUCE RESULTS WHICH SEEM UTTERLY UNFAIR.

WHERE, AS HERE, AN OFFICER'S RETIRED PAY EXCEEDS THE DUAL PAY LIMITATION PRESCRIBED IN THE STATUTE, COLLECTION OF AN AMOUNT FROM HIS RETIRED PAY WHICH IS IN EXCESS OF THE COMPENSATION RECEIVED IN CONNECTION WITH HIS CIVILIAN EMPLOYMENT WOULD, IN EFFECT, REQUIRE THE UNTENABLE CONCLUSION THAT HE MUST NOT ONLY WORK WITH NO COMPENSATION AT HIS CIVILIAN JOB, BUT MUST FORFEIT PART OF HIS RETIRED PAY, AS WELL AND THUS, IN EFFECT, PAY THE GOVERNMENT FOR THE RIGHT TO RENDER SERVICES TO IT IN A CIVILIAN CAPACITY. WE ARE UNWILLING TO CONCLUDE THAT CONGRESS COULD HAVE INTENDED THAT RESULT. CF. 44 COMP. GEN. 266 (1964).

TO THE EXTENT THAT ANYTHING SAID IN 47 COMP. GEN. 185, SEPTEMBER 27, 1967, IS IN CONFLICT WITH THE VIEWS EXPRESSED ABOVE, THAT DECISION NO LONGER WILL BE FOLLOWED.

IT IS NOTED THAT THE LETTER OF APRIL 17, 1970, TO COLONEL BLACK FROM THE UNITED STATES ARMY FINANCE CENTER, INDICATED THAT $200 A MONTH IS BEING DEDUCTED FROM HIS RETIRED PAY. SUCH ACTION SHOULD BE TERMINATED WHEN A TOTAL EQUAL TO THE AMOUNT OF CIVILIAN COMPENSATION HE RECEIVED DURING THE PERIOD DECEMBER 6, 1967, TO AUGUST 31, 1969, HAS BEEN COLLECTED. COLONEL BLACK IS BEING ..END :